Modern Law of Marine Insurance Volume Five, The
CHAPTER 9
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Marine insurance cover for detainment of vessels by a foreign state: The Team Tango case
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Introduction and overview
9.1 The topic of this chapter is marine insurance cover for the detainment of vessels by a foreign state, as illustrated by a recent Norwegian arbitration case – the Team Tango case.1 It is well known that vessels entering foreign ports may be detained by the governing state, with or without an accepted legal basis for making such intervention. This may prevent the vessel from leaving the port and so lead to delay, resulting in loss of income under the vessel's freight contract. Detainment may also lead to damage to the vessel, and, if the vessel is not freed from the detainment, may result in the vessel being lost. The question will then be whether such delay, damage and total loss are covered under the vessel's hull and loss of hire insurance. Unfortunately, this issue has gained importance in recent years, because states have arrested foreign vessels in their ports on dubious legal bases and then detained them for lengthy periods, even ending up confiscating the vessel. The question of insurance cover for this peril is therefore an important issue for both the ship owners and the insurance community. 9.2 This question was on the agenda when the Nordic Marine Insurance Plan 2013 was amended in 2019.2 A principal concern with this amendment was to extend the cover for intervention by foreign states and also to clarify issues that had been disputed in the previous versions.3 However, even with this amendment, the question of insurance cover for state intervention is difficult. This is illustrated by the arbitration award concerning the vessel Team Tango. Team Tango was insured under the Nordic Marine Insurance Plan 2013, Version 2016, but the regulation of the disputed issue is similar to the regulation under the 2019 Plan and demonstrates some of the difficulties involved. The main issue inPage 190
The Nordic Marine Insurance Plan 2013
9.4 The Nordic Marine Insurance Plan 2013 (NP) is an agreed insurance contract covering inter alia hull insurance, hull interest insurance and loss of hire insurance for vessels. It contains both insurance against marine risk, as well as insurance against war risk. The NP is used in all the Nordic countries and contains a comprehensive regulation which also provides provisions for questions ordinarily regulated under national insurance legislation.4 9.5 The NP is based on the Norwegian Marine Insurance Plan 1996, Version 2010 (NMIP 2010),5 but some of the clauses are adjusted to conform to national background law in the other Nordic countries. Most of the clauses, however, including thereunder the clauses relevant for this article, are identical or similar to the previous clauses. Previous practice on these clauses is therefore still relevant. 9.6 As the NP is based on the NMIP 2010, it is necessary to outline the historical development of the NMIP to understand the relationship between the NMIP and the NP and the different versions of the NP. 9.7 The first NMIP was published in 1871 and was later followed by several more plans,6 the most recent being the 1996 Plan. The NMIP 1996 was published in several versions, the most recent in 2010.7 At this time, the Nordic Association of Marine Insurers (Cefor), which is responsible for the maintenance and publishing of standard marine insurance conditions in the Nordic market, decided that, instead of operating with a separate set of standard conditions in each of the Nordic countries, the maintenance effort should be concentrated on one common set of conditions. Cefor chose the Norwegian Marine Insurance Plan 1996, Version 2010, as the basis for a set of unified Nordic conditions. An agreement was entered into between Cefor and the Norwegian, Danish, Swedish and Finnish shipowner associations on 3 November 2010 to construct the Nordic Marine Insurance Plan of 2013, which came into force in January 2013. The agreement established the Standing Revision Committee to be responsible for amending the NP every third or fourth year. The NP was amended in 2016 and again in 2019.8 Team Tango was insured under thePage 191
The Plan does not contain any explicit reference to the Commentary and its significance as a basis for resolving disputes. … Nevertheless the Commentary shall still carry more weight as a legal source than is normally the case with the Traveau Preparatoire of statutes. The Commentary as a whole has been thoroughly discussed and approved by the Nordic Revision Committee, and it must therefore be regarded as an integral component of the standard contract which the Plan constitutes.11