4.2 The covered perils
The perils that are covered in IWSCH Cl. 1.2 and 1.6 are “capture”, “seizure”, “arrest” “restraint”, “detainment”, “confiscation” and “expropriation”. The terms are not mutually exclusive, and they overlap to a certain extent.
The cover applies to the actions that are described, regardless of any war or war-like situation, who is performing the actions, and the legal basis for the actions. The cover thus also applies in times of peace,(1) Hudson, Madge, Sturges, Marine Insurance Clauses, 2012, p. 359, Keith Michel, War, terror and carriage by sea, 2004, pp. 204-205. and there is no explicit requirement for state involvement or legal justification for the intervention. However, this may follow from interpretation of the concepts and from the exclusions discussed below in 4.3.
“Capture” is a taking by the enemy as prize, in time of war, or by way of reprisals, with intent to deprive the owner of all dominion or right of property over the thing taken.(2) Arnould, Law of Marine Insurance and Average, Lnd. 2024, Volume II, p. 267-268. “Capture” seems to presume a belligerent act.(3) Arnould p. 267 note 166. It appears to include every act of seizing or taking by an enemy or belligerent.(4) Arnould p. 267, Hudson et al p. 342. Capture is prima facie a case of total loss, which gives the assured an immediate right to notice of abandonment. However, the loss cannot as a rule be said to be irretrievable at the moment of capture, so as to entitle the assured to treat it as an actual total loss, since there is no immediate loss of title. The loss of title occurs when there is an official sentence of condemnation pronounced by a prize court of the government of the captor.(5) Arnould p. 269.
The UK concept of “capture” thus seems to imply either a state intervention or intervention by persons purporting to act on behalf of a state. This appears similarly to the traditional concept of capture in Norwegian marine insurance, but today, the word “capture” in this context is also used for seizure by pirates.
“Seizure” is a broader concept than “capture” and includes other forms of taking, such as taking by revenue or sanitary officers of a foreign State,(6) Arnould p. 267. or due to smuggling by the ship’s master.(7) Michel pp. 203-204. Nor is “seizure” confined to acts of state. It includes seizure by pirates, passengers or by natives whose object is to plunder the vessel.(8) Arnould p. 267, Hudson et al p. 342, Michel p. 204. It embraces every act of taking forcible possession, either by lawful authority or by overpowering force.(9) Arnould p. 267-268, Hudson et al p. 342, Michel p. 205. The seizure need not be belligerent.(10) Michel pp. 205-207. However, it does not include misappropriation by those already in possession of the ship.(11) Arnould p. 268.
This means that “seizure” may be a state intervention, but the concept is broader and includes taking the vessel by forcible means from other groups. This concept is not used in the NP but appears to be included in the concept of “capture”. Compared to the Nordic regulation, the interesting point is that both seizure by a state without any overriding political motive with reference to war or times of crisis, and also by political groups not qualifying as a state, is covered by war risk insurance.
The perils “arrests, restraints, and detainments” are also listed, without reference to involvement of a state. However, the interpretation is that these interventions must be performed by the ruling power of the country.
In the previous SG form of policy, the wording was instead “arrests, restraints, and detainments of all kings, princes and people of what nation, condition or quality soever”. According to rule 10 of the “Rules of Construction of Policy” in Sch. 1 to the Marine Insurance Act 1906, these words are declared to refer to “political or executive acts”, and do not include a loss caused by riot or by ordinary judicial process.(12) Arnould p. 270, Hudson et al p.342. The reference to “kings, princes and people” no longer appears in the current perils clauses. But although the new policy forms are not a policy of like form, such as would make mandatory the Rules for Construction scheduled to the 1906 Act, it is nonetheless clear that the meaning of these perils has not been altered and that the principles laid down by rule 10 continue to apply. The word “people” did not mean mobs or multitudes of men, but instead referred to the ruling power of the country.(13) Arnould p. 270.
These interventions are thus more narrowly interpreted than the interpretation of “seizure”.
There is no clear distinction between the terms “arrest”, “detainment” and “restraint”, nor is there a clear distinction between arrest and capture, because there may be an arrest when the authorities intend to permanently confiscate the insured property.(14) Arnould p. 272. However, the blocking and trapping clause only applies to “restraint”, which according to the interpretation refers to interventions performed by a state and according to the provision itself only if the blockage of the waterway is “a warlike act, or act of national defence”. This appears to correspond to Cl. 15-12, where blockage according to the Commentary must be performed by a foreign state in relation to a war risk.
Confiscation and expropriation refer to acts done by governmental authorities or by persons professing to represent those in power.(15) Arnould p. 272. There is no judicial determination on these concepts in relation to this particular clause.(16)Miller’s Marine War Risks (Michael Davey, James Davey and Oliver Caplin eds, 4th edn, Informa Law from Routledge 2020) (Miller), p. 179. Such acts will normally also be included in the term “restraint”. Both expressions are probably confined to circumstances where the appropriation of the vessel for public use is intended either to be permanent or to be reversible only on payment of some fine, penalty, or other exaction.(17) Arnould p. 273. It is argued that these expressions are confined to circumstances where no compensation is paid.(18) Arnould p. 273.