Marasi 31(2)

All losses are excluded unless
they arise during a "Maritime
Adventure"
At law, all losses are excluded
unless they arise during a "maritime
adventure" (s. 3 MIA 1906) and
are "proximately caused" by a peril
named in the insurance policy
(s.55 MIA 1906). A "maritime
adventure" means that the ship or
the Assured's earnings are exposed
to "maritime perils"; these are "the
perils consequent on, or incidental
to, the navigation of the sea" (s.
3(2) MIA 1906). Importantly, “perils
of the seas” does not cover ordinary
action of the winds and waves, only
"fortuitous accidents or casualties of
the seas". In other words, something
has to be left to chance.
In the same way, s.55(2)(a) prevents
an assured from insuring against his
own "wilful misconduct" (s.55(2)
(a)), although cover is available for
misconduct or negligence of the
master or crew. Again, that makes
sense; an Assured should not be able
to insure against his own sabotage.
Cover for delay and for loss caused
by "inherent vice" is also excluded
at law, although ss. 55 (2)(b) and
(c) allow the parties to contract
out of that provision. Inherent vice
was defined by the decision in Soya
GmbH Mainz Kommanditgesellschaft
v. White [1983] 1 Lloyd’s Rep 122.
That case was about a cargo of
soya beans that were damaged in
transit when they started to sweat.
The Court held it means "the
risk of deterioration of the goods
shipped as a result of their natural
behaviours in the ordinary course of
the contemplated voyage without
the intervention of any fortuitous
external accident or casualty", i.e. the
loss was caused by something within
the goods themselves.
“Proximate cause” was defined by
the English House of Lords in The
"Ikaria" [1918] AC 350 HL. In that
case, the Court had to decide whether
the ship's sinking had been caused by
the torpedo that hit her during the
First World War, or the Le Havre
port authority's decision to move her
outside the port. The Court held it
meant the cause without which the
loss would not have happened, “…
the real efficient cause to which the
event can be prescribed”. It does not
mean the cause which is nearest in
time to the loss. The question of the
proximate cause is a question of fact,
which in practical terms means it
is very difficult to appeal in English
law. Finally, the Court will not be
impressed by complicated theories
of proximate cause. Following the
decision in Noten BV v. Harding
[1990] 2 Lloyd’s Rep 283, “…this is
a question to be answered applying
the common sense of a business or
seafaring man.”