Validaciones sobre el registro FDG010

The “winner-takes-all-principle” is introduced by Prof Marc A. Huybrechts as a comment on the harsh and inconsistent decisions made by English courts as to the assured’s attempt for recovery compared with the causation rules of Belgium.183 _{From the Belgian position, “theory}

of the equivalent causes” (equivalence des conditions) requires the courts to take into account all relevant circumstances, without which the loss would not have occurred. This approach has similarity to the ‘but for’ test under English law. Moreover, the Belgian position contains a more striking distinction in ascertaining the underwriter’s liability in the

182 _{John Lowry and Philip Rawlings, “Comment on Proximate Causation in Insurance Law”,}

Modern Law Review 2005, p 316

event of combined causes. The Belgian courts allocate the percentage by calculating apportions of every contributed peril, which allows the apportionment of liability between the underwriter and the assured. It is arguable that this approach produce a more equitable and flexible resolution of insurance disputes between the underwriter and the assured.184

Similarly, the formulation to apportionate the loss can be observed in The Norwegian Marine Insurance Plan of 1996, Version 2010:185

§ 2-13. Combination of perils

If the loss has been caused by a combination of different perils, and one or more of these perils are not covered by the insurance, the loss should be apportioned over the individual perils according to the influence each of them must be assumed to have had on the occurrence and extent of the loss, and the insurer should only be liable for that part of the loss which is attributable to the perils covered by the insurance….

Is there a possibility of reconciliation between the assured and the underwriter by splitting the bills of indemnity by means of taking account of all the relevant causative facts?186

Evidently, it should be noted that such reconciliation is not intended to be availed as a tool to blur or ignore the real proximate cause of the loss. Nonetheless, as a means of the settlement of disputes and the balancing of interests, is this approach plausible and justified in ascertaining the liability of indemnity?

The mechanism of insurance has been created for risk allocation in the commercial sense between the parties to the policy. From the theoretical view under the contract law, it is hard to find justification for splitting the bill. An insurance policy, as a contract in general terms, is concluded with the mutual intention of allocating risks in the manner that the insurer undertakes the liability of indemnity on the perils he agrees to insure, while the assured bears the non-insured risks and the excluded ones. The essential intention of the underwriter is to share certain risks but not to share the loss. It was clearly held by Viscount Sumner in Wayne that loss is not apportionable. When the circumstance is consistent with the terms agreed in the policy, the contract should be performed accordingly and stringently. In contrast, from the tort law theory or liability insurance perspective, it seems easier to accept the approach upheld in Belgium. However, so far as marine policies are concerned, the express terms prevail over apportion of liability by the degree of negligence between

184 _{Ibid p 173}

185 _{http://www.norwegianplan.no/eng/index.htm, (accessed 08 June 2011)}

186 _{It has to be stated here that the proportion issue is only discussed in terms of causation,}

despite the fact that proportionate remedies may be a solution in the case of the assured’s dishonest conduct under utmost good faith, as provisionally proposed by the Law Commissions in the Insurance Contract Law Reform Paper. Such remedy is not available for the question of the proximate cause of loss.

counterparties. Thus, the proximate cause(s), as the only indicator to ascertain the entire liability, are of material significance under English law.

In spite of the lack of legal grounds for apportioning the indemnity, the notion of “concurrent causes” and its rules in English law is operated as the regime for guaranteeing the reasonableness and justification of the seemingly rigorous attitudes of English courts in term of ascertaining the liability. On the one hand, the real sole proximate cause depending upon the matter of fact and law will be identified on a thorough and concise consideration of all contributory factors. On the other hand, it enables courts to avoid arbitrary decision in equal efficiency situation so that the courts do not feel obliged to identify one proximate cause.

The rules as to concurrent causes under insurance contracts reflect the intention of the courts to balance the status of insurer and assured, which is common in the UK and the US irrespective of their differences in this respect. English courts attempt to interpret the exclusionary clauses narrowly, while they broadly interpret the coverage scope, which is significantly reflected in The Cendor Mopu.187 _{Likewise, US courts support the same rules of}

construction.188 _{However, it would be partial to maintain that English courts intend to protect}

the insurer’s benefit and expectation more than those of the assured, merely because of the Wayne rule in concurrent causation situations. As mentioned above, the rules of concurrent causes include both the The Miss Jay Jay rule and the Wayne rule, which should be regarded in tandem. As far as the policy is concerned, the insurer will not be liable for the uninsured perils or the excluded ones. Under The Miss Jay Jay rule, the insurer has been held to be liable for the uninsured risks which he had not expected to cover, although it appears that it is the case of the concurrency of an insured peril and an excluded one that reveals more the conflict of competing benefits of the insurer and the assured. From the viewpoint of the consequences, however, uninsured perils are equated with excluded perils for avoiding the insurer’s liability. The Miss Jay Jay rule denotes a favourable intention to expand the reasonable expectations of the assured on the policy coverage; whereas, when an excluded proximate cause operates, English courts choose to take account of the insurer’s benefit whether on the grounds of mutual intention or merely based on the insurer’s intention. It is true that the English insurance market deals with the policy by focusing on the freedom of the contract in the commercial sense, instead of solely paying attention to the individual assured based on private insurance.189 _{On the one hand, unlike social insurance, marine}

insurance policies serve commercial functions, essentially. On the other hand, the imbalance

187 _{Although The Cendor Mopu refers to inherent vice which is held to be the uninsured peril,}

exclusionary clauses should not be limited to the express terms of excluded perils. Uninsured perils which may discharge the underwriter’s liability have exclusionary effect as well.

188 _{Garvey et al. v State Farm Fire and Casualty Company, 48 Cal. 3d 395}

189 _{R. Hasson, “The Special Nature of the Insurance Contract: A Comparison of the American}

of power between the insurer and the assured seems less severe in the maritime field. Therefore, concurrent causes rules have reached a fairly balanced point by looking into the intentions of both parties, rather than imposing more risks and pressure on the side of the assured.

Nonetheless, the concurrent causation in the marine context remains quite a few arguments and leaves some important questions open currently, which demand dealing with in the future, for instance, perceivable narrow acceptance and room for concurrent proximate causes and the overlap and blank in the coverage of more than one policy. Clarification of the concept and nature of every risk is the fundamental basis for the issue of concurrent causation in particular. From the legal facet, a definite and clear recognition by case law or statutes should be suggested and considered in order to respond to the universal doubt and hesitation in finding and applying the set of rules. Upon a legal acceptance and recognition of “concurrent causes”, the incorporation of new clauses concerning concurrency turns to be justified and helpful in identifying the liability of the underwriters between the policies for different coverage.

The wording and phrasing of such a clause has to be precise and critical, since a third party, namely another policy underwriter is likely to be influenced or involved. A typical example is where the insurer agrees to undertake more liability on covering the perils in concurrency with uninsured or even excluded ones by charging a higher premium, immaterial of whether the assured has placed other policies. While, it should be noted, if the insurer agrees with ‘held cover’ in the Wayne situation, he is quite likely to lack legal grounds to recover his payment of indemnity from other insurer.

In contrast, assuming that the insurer is aware of other relevant policies and regards it material, if the insurer expressly states that he is not liable for uninsured perils concurrent with insured perils which is contrary to the rule established by the courts, he initially has to notify the assured explicitly, otherwise, the courts can hardly find in favour of the insurer on the grounds of the basic principle of insurance law. However, despite the fact that the insurer has performed in compliance with the aforementioned requirements, he is still bound to encounter with the courts’ rigorous construction of contra proferentem if there is any ambiguity therein.

In conclusion, not only can a few legal authorities in the law of marine insurance be found in support of room of “concurrent causes”, but it also has substantial commercial and practical significance. However, a conservative judicial attitude towards the recognition of causes in concurrency is perceptible in English marine insurance law. Generally speaking, it mainly arises for two reasons. On the one hand, the incidence that one loss can be proximately attributed by more than one cause based upon the complex and strict test of equal efficiency is rare in practical scenarios. One the other hand, the natures of every risk may

determine that one cannot jointly contribute to a loss with some other peril for deciding the indemnity, such as inherent vice. Consequently, there underlies some logical fallacies if courts hold them combining as proximate causes to the loss. Therefore, although the test as to evaluate equal efficiency in causing the loss seemingly resolves the difficulty to ascertain the situation of concurrent causes, the perils and risks have to be taken into account as well, before coming to a conclusion.

Along with the development of the doctrine of proximity and the clarification of the nature of the perils, the insurance market in practice will certainly react and reconsider the forms and clauses accordingly. Moreover, the specific rules established in terms of concurrent causes involved with non-insured perils and excluded perils respectively avoid the arbitrary judgment based upon a well-balanced judicial consideration of the sides of both parties. Therefore, a relative mature mechanism of causes in concurrency can be conceived in English law of marine insurance.