Chiara De Maria May 23, 2023September 6, 2023 ‘FULL AHEAD’ ordered the Master on the Bridge, and so the fully laden good old bulk carrier, which has weathered many a storm in its more than two decades at sea, complemented by a seasoned crew, commenced its 14-day sea passage to the discharge port in fair winds and smooth seas, with the main engine chugging at about 75% of its MCR. After 8 days of sailing, the ship encountered rough winds and swells, causing heavy pitching and rolling, the main engine’s turbo chargers surging, the alarms blaring for high exhaust gas temperatures, with the crew at the bridge and in the engine room taking necessary corrective measures, all in good seamanship. On the 9th day of sailing, the exhaust valves of Nos. 1 and 5 units of the 6-cylinder main engine were malfunctioning which necessitated the engine crew to stop the main engine and replace these two valves. The vessel sailed for about 24 hours at reduced speed in the face of prevailing bad weather of gusty winds, heavy rains and high waves with green seas washing over the ship’s decks and hatch covers. On the 11th day, exhaust valves of Nos. 3 and 4 units of the main engine were noted with high temperatures and the crew had to once again stop the main engine to replace the valves. As the vessel was rolling heavily with no maneuvering power, in those prevailing circumstances, the two exhaust valves removed earlier were quickly made ready and fitted in place of the damaged ones. While replacing these valves, it was noted that the piston rings of one of the cylinders of the main engine were broken, whereby the Chief Engineer decided to isolate this cylinder, causing the main engine to operate on reduced power and operation limitations of only 5 cylinders firing. After about four hours of sailing with a cut-off cylinder, the ship encountered a power black-out and the emergency generator automatically came online to provide power supply to the essential machinery of the ship. The engine crew attempted to restore the two auxiliary engines for electrical power generation but found that the generators windings and its equipment got shortened and burnt due to water falling on to them from the deck and air ducts above. The efforts of the electrical officer to restore the generators turned futile. The Third Engineer also reported engine room bilge alarm and on investigation he found that the starboard side engine room double bottom coffer dam tank was filled with sea water. Meanwhile, bilge water alarms in the longitudinal pipe tunnel in the ships’ DB tanks, the cargo holds, the forepeak tank and anchor chain locker all sounded. The ship also slowly started listing to starboard. As the bilge water could not be pumped out with the bilge pump running on emergency power, the Chief Officer and the Engine Fitter decided to carry out an inspection of these spaces. The Chief Officers inspections revealed that there is water seepage through cracks in the shell plating of the starboard no. 2 and 3 wing ballast tank, chain locker, high water level in the pipe tunnel and also wetness in the cargo holds walls. A little later, the emergency generator located on the aft of the ship’s main deck also stopped functioning, due to seawater ingress from the aft main deck of the ship, causing a complete power blackout. Six hours later, the ship listed excessively, whereby the Master had to order ‘ABANDON SHIP’. The Master and his crew abandoned the ship and about an hour later, the ship sank to the bottom of sea. Subsequently, as was expected, the ship owners preferred a claim against their insurers for total loss of the ship under its H&M Policy. From the statements of the Master and crew of the unfortunate ship, the ship’s reports and the information obtained from intelligence sources, the H&M insurers found that: the ship had a past history of repeated main engine breakdowns till departure from the last port of call; the main engine exhaust valves replaced on No. 3 and 4 units were overhauled with old spares as the ship did not have inventory of the critical spares as is required under ISM Code; the seawater and rain water which fell on the generators entered through the air ventilation flaps and from the doors of the engine room on the main deck of the ship which were not watertight or were secured improperly; the ship’s hatch covers were not watertight; the engine crew left the watertight doors to the emergency generator room partly open which lead to seawater ingress in to these spaces and failure of the generator; and that the hull plating thickness gauging reports showed that the plating had corroded in many areas requiring remeasuring and renewal of plating, as may be required at the next drydock of the ship. In assessing whether the owners claim is one covered by the contract of insurance, one of the issues which arises for determination was whether the loss was occasioned by an insured peril (or an excluded peril) and if that be so, what was the “proximate cause” of the loss or was the loss a result of concurrent proximate causes each of equal or at least nearly equal in their efficacy. The doctrine of proximate cause is a general principle of insurance laws which has a particular meaning in insurance claims, and this principle is found in both common law and civil law jurisdictions, alike. From the instant facts mentioned above, the question which fell for determination of the claim was whether the proximate cause of loss of the ship was a result of unseaworthy hatches (or) poor maintenance of the main engine (or) the failure of owners in not ensuring that the ship is ISM compliant in carrying the critical spares required (or) the failure of auxiliary engines which lead to lack of maneuvering power to the ship causing uncontrolled rolling of the ship and stresses on its hull plating (or) the bad condition of ventilation flaps/doors which did not prevent seawater ingress (or) was it the negligence of crew in not following safe working practices to keep the water tight doors closed? The purpose of this article is not to determine the proximate cause for the loss of the above-said ship but rather to dwell into the law thereto. In the recent case of Allianz Insurance PLC v. The University of Exeter, [2023] EWHC 630 (TCC), the English High Court, referring to various precedents on law of causa proxima, considered how the proximate cause test is to be applied. In this case, the Court was confronted with deciding whether the proximate cause of the university’s claim for property damage was due to dropping of the bomb in the year 1942 or the deliberate act of the bomb disposal team in detonating the bomb (about 79 years later). In deciding the above, the Learned High Court Judge held that a commonsense approach is to be applied to determine the proximate cause and to reject ‘microscopic analysis’ of the facts. It was further held that the process of identifying the proximate cause is not simply a matter of “unguided gut feeling” and that events which “spring up” after a given event do not necessarily “destroy” or “impair” the causative potency of that earlier event. The chronological order of events is not determinative in the analysis. The key consideration is the nature of each event. With regard to intervening actions of mankind, the Court also clarified that the failure of the attempt to mitigate or stop the damage arising from a breach could not “be justly described as the cause of the ultimate damage” but that they “express what the common sense of mankind would assert in such a case.”. Referring to Reischer v Borwick: [1894] 2 QB, the Court observed that the fact that some fresh cause arises is far from conclusive, and that when looking for the cause of a loss, it was “well settled law that it is only the proximate cause that is to be regarded and all others rejected, although the loss would not have happened without them” and therefore, applying this principle, “a loss might have more than one cause and the proximate cause need not be the cause which stands closest in time to the loss. Even if a subsequent cause is of such potency that the loss would not have happened without it, the earlier cause may still remain the proximate cause”. Further, the Learned Judge referred to Yorkshire Dale Steamship Co Ltd v Minster of War Transport [1942] AC 691, 706 (and relied by the UK Supreme Court in FCA v Arch [2021] UKSC 1) and held that the modern approach to identifying proximate cause remains a practical and not a philosophical exercise. “This choice of the real or efficient cause from out of the whole complex of the facts must be made by applying commonsense standards. Causation is to be understood as the man in the street, and not as either the scientist or the metaphysician, would understand it. Cause here means what a business or seafaring man would take to be the cause without too microscopic analysis but on a broad view.” In applying the above precedents, the Court held that the test of “proximate cause” is a matter of judgment based on common sense rather than over-analysis and that to treat a proximate cause as that cause which is nearest in time is out of the question. The passage of time does not of itself provide an answer to the question of “proximity”. Therefore, it was held in Allianz Vs University of Exeter that the proximate cause of the claim was the dropping of the bomb in 1942 and not the act of the bomb disposal team in detonating the bomb. If the above rationale of law is to be applied to the facts leading to the sinking of the unfortunate ship, determining the proximate cause of loss might not always be as straight forward as it appears, which, needless to say is subject to burden of proof. Moreover, if the H&M claim of the ship is to be heard before UAE Courts, unlike in common law jurisdiction, in the UAE, the concept of stare decisis is not followed and each case is dealt on its own merits. Interpretation of law in the UAE strictly rests with the Courts and the previous cases form merely a part of the guidelines (not precedents) as to the applicability of the law. Having said that, in deciding the nature of H&M claim as in the instant case, UAE Courts tend to appoint Experts who are specialists in the field of insurance and shipping, to assist in fact finding and causation. Our team of specialized lawyers are happy to advice you should you have any concerns or queries with regard to your insurance claims and how the test of proximate cause to a loss will be applied by the UAE Courts. Disclaimer: The views expressed in this article or of the author and the incident of sinking of the ship described in this article is a hypothetical scenario compiled from various case studies.
