Marine law: Proximate cause
Causation concept is an elusive aspect. From the beginning of life to the modern life, scholars have struggled to define the causation of their filed. However, the concept and the definition of the causation plays a crucial role in the realm law. The concept is well stipulated and evaluated in the statutes, contracts and legal precedents. In marine insurance law, indemnification by insurer is given against the loss of damage of the subject matter relating to the perils covered based on the contractual terms and policies. The linkage is the dominant general rule of the proximate cause as stated in section 33 (1) of the marine insurance act 1906.
Subject to the act endorsed by the general rule of the proximate cause adapted by the common law, it affirms the liability of the insurer hinges upon the loss or damage proximately caused by the peril insured against it (Bannet Howard 59-101). This section of the marine act proposes the general rule of the proximate cause previously adopted by the common law. This provision condemns the remote cause that was initially favored by some courts that stated that the nearest event leading to the loss is the cause. However, in the twentieth century, the courts unambiguously adopted the dominance in efficiency approach and disregarded the temporary immediacy (In Chircop, In Gold, In Kindred & In Moreira, 2016).
Notably, proximate cause in the marine insurance law is the dominant cause of the damage. It was decided by per Bingham L J in T M Noten BV v Harding that the proximate cause of the damage is determined by the application of common sense of a business. In determining the dominant cause, the court recognized finding the dominant cause as efficient to apply the test regarding the sentence described by Bingham LJ (Hodges Sussan 415). However, at the light of recent judgment by the Supreme Court’s in the global process system INC, it is easier to analyze how the current approach is applicable today.
At the beginning of the century, the determination of the proximate cause was considered as the nearest damage cause. However, the general principle in the English law is that the insurer is only liable for a damage, which is proximately caused by the peril insured against (Mekin Robert 123-126). This approach was modified with ruling in Leyland Shipping Co v Norwich Union Insurance Co AC 355, that declares that proximate cause is the damage cause, which is proximate in efficiency. The ruling in Canada Rice Mills v Union General Insurance Co AC 55 at 69 asserts that proximate cause should be determined according to a broad commonsense outlook of the instance.
Decisively, two different consequences of proximate cause affect both on the insurer and the assured. First, it narrows the insurers obligation to only loss proximate caused by the insured peril (Mustill 222). Secondly, it widens the liability of the insurer based on the remoter causes contributed by a certain cause without which such an occurrence would not have happened. In cases of one dominate cause; application of proximate cause is easy. However, the court has to determine whether the cause of loss is or is not an insured risk under the policy. Nevertheless, application of proximate cause rule is not easy in occasions where the court has to select the proximate cause from more than one causes contributing to the damage (Staring Graydon 12-19). The situation worsens when the causes seem to be equally influential.
For proximate cause to be effectively applicable, Colinvaux rules have to be applied for court to decide the proximate causes of a particular damage or loss. First, the peril insurance has to be in operation. It is crucial to ensure that the insured peril is in existence for a right to be enforced to facilitate its recovery (Bainbridge 117). When there is apprehension of a peril and measures are taken to prevent its occurrence, the peril right is not applicable since the proximate cause of the loss is no longer a peril. Further, once the risk operates, loss to the subject matter from efforts to check the progress of the casualty is also covered. In case the peril that is covered occurs, action has to be taken to mitigate or minimize the risk of damage or loss from that peril. Also, an event contributing to the loss has to be distinguished from the dominant cause (Boéri & Maier 100). Moreover, the Novus actus intervention principle is considered to ensure that the case of a new cause intervention is facilitated to minimize the damage. Commonly under such instances, invention breaks the chain of causation thereby making the interlining force the proximal cause of the loss. Furthermore, the deathblow aspect has to be considered to ensure that the chain of causation is not broken through failure to follow human agency to determine natural forces contributing the cause.
Moreover, the stipulated rules ensures that the principles that govern insurance guidelines are observed. This ensures that utmost good faith is maintained between the insurer and the insured. This is facilitated through provision of crucial information to reveal certainty necessary for a contract as well as to facilitate compensation in case of loss or damage (Hammond & Christense 220). In addition, the rules ensures that both the insurer and the insured demonstrates insurable interest prior signing a contract. This aspect facilitates the protection of insurable commodities for the insurance policies to be applicable.
Although, the marine insurance act 1906 adopted the proximate cause but remained silence over the meaning of the concept, the courts and House of Lords in several instances have attempted to define the precise implication of the concept and give it meaning to the rule. All the attempts in different cases give meaning largely to the proximate cause and make people to understand the doctrine (Hough 231-237). Notably, Marine Insurance Law recognizes proximate cause as a dominant and efficient cause of a loss or damage regardless of the last cause in time or whether the cause was complete or intervene. In most cases, more than one cause contribute to the damage or loss of the subject matter insured and occasionally more than one dominant cause can be observed. One of the crucial rules in the general proximate cause rule is that, an apprehension of a peril is given inadequate reason to recover under this policy. However, responses to a peril by the assured to minimize the risk or loss will not supplant the loss as proximate cause.
Bainbridge, S. M. Insider trading. Cheltenham, UK: Edward Elgar Pub. 2011.
Bannet Howard N., Causation in the law of maritime insurance Evolution and codificationof the proximate cause Doctrine, The modern Law of maritime insurance.2013. Print.
Boéri, J., & Maier, C. Compromiso social y traducción/interpretación =: Translation/interpreting and social activism. 2010. Granada: ECOS.
Hammond, S. C., & Christensen, L. J. Corporate and social responsibility: Road map for a sustainable future. San Diego, CA: Bridgepoint Education, Inc.2016. Print.
Hodges Sussan. Cause and materials on maritime insurance law. Cavendish publishing. 2014
Hough, J. Your next great stock: How to screen the market for tomorrow’s top performers. Hoboken, N.J: John Wiley & Sons. 2009. Pint.
In Chircop, A. E., In Gold, E., In Kindred, H. M., & In Moreira, W. (2016). Maritime law.
Mekin Robert. Colinvaux’s law of insurance. California. 2016.
Mustill sir M. J. Law of maritime insurance and average. 2015. Print
Staring Graydon S. Maritine Insurance: Tulane law review.2016.