chapter  19
10 Pages

Causation

Bus LR 537; [2011] 1 Lloyd’s Rep 560, [51] (Lord Mance). 6. Global Process Systems Inc v Syarikat Takaful Malaysia Bhd (The Cendor MOPU) [2011] UKSC 5; [2011]

Bus LR 537; [2011] 1 Lloyd’s Rep 560, [51] (Lord Mance). Cf ibid., [140], per Lord Clarke, who refrained from

19.4 It was unnecessary to speculate on the answer to this question in The Cendor MOPU.7 However, if the answer were in the negative, it could raise some nice questions. Thus, if a shipowner and his insurer both knew that the vessel was to sail through a war zone or an area be infested with pirates intent on raiding such vessels, they were ignorant of whether the vessel were to be attacked, and inevitability meant irrecoverability, then the loss would be irrecoverable if a decision had been made to attack the insured vessel specifically but not if there were a general decision to attack shipping generally and which only happened to be implemented against the insured vessel after the policy was agreed. However, the shipowner would want to be insured in either case; perils deliberately engineered by third parties, such as theft and war, are generally insurable; the actual implementation of pre-arranged perils and the losses actually caused by them are likely to be fortuitous rather than ‘‘inevitable’’ (for example, not all bombs explode or have the effects intended); and the effect of a marine insurance contract is essentially a matter of agreement. Therefore, the better view would seem that any loss that, so far as the parties are aware, occurs fortuitously should be recoverable, even though it transpires that in retrospect it had a high degree of ‘‘inevitability’’.