LORDS DECISIONSLORDS DECISIONS >>LORDSLORD BROWNE-WILKINSONLORD LLOYD OF BERWICKLORD CLYDELORD HUTTONLORD HOBHOUSE OF WOOD-BOROUGHLORDS OF APPEAL FOR JUDGMENT IN THE CAUSELORD BROWNE-WILKINSONLORDS,LORD HOBHOUSE OF WOODBOROUGH. FOR THE MOST PART I AM IN COMPLETE AGREEMENT WITH HIS CONCLUSIONS AND REASONING.LORDSHIPS TAKE THE VIEW THAT THE CASE DOES FALL WITHIN PARAGRAPH (E) AS WELL AS PARAGRAPH (A).LORDSHIPS' REASONING IT IS THAT THE WORD "SEIZURE" HAS A NORMAL AND USUAL MEANING. HAVING REACHED THE VIEW THAT WHAT TOOK PLACE IN KUWAIT WOULD FALL WITHIN THAT MEANING OF THE WORD SEIZURE, YOUR LORDSHIPS THEN LOOK FOR SOME SPECIAL REASON WHY THE WORD SHOULD HAVE A MORE LIMITED MEANING IN THE PRESENT DOCUMENT AND, NOT HAVING FOUND ANY SUCH GOOD REASON FOR LIMITING ITS NATURAL MEANING, DECIDED THAT THE WORD SEIZURE IN PARAGRAPH (E) COVERS THE PRESENT CASE.LORDS, I AM UNABLE TO ADOPT THAT METHOD OF CONSTRUCTION. THE WORD SEIZURE DOES NOT HAVE ONE MEANING THAT IT BEARS IN ALL NORMAL CIRCUMSTANCES. LORD FITZGERALD IN CORY V. BURR 8 APP. CAS. 393 AT P. 405 SAID:LORDSHIPS TAKE THAT AS BEING A STATEMENT THAT THE NORMAL AND USUAL MEANING OF SEIZURE INCLUDES FORCIBLE CAPTURE. IN MY JUDGMENT IT DOES NOT SAY THAT: WHAT IT SAYS IS THAT SEIZURE AS A WORD IS CAPABLE OF INCLUDING SUCH BEHAVIOUR. WHETHER IT DOES SO OR NOT MUST, IN MY VIEW, DEPEND UPON THE CONTEXT IN WHICH THE WORD IS USED, NOT STARTING WITH A PRESUMPTION EITHER WAY.LORDSHIPS IS RIGHT, I CAN SEE NO REASON WHY IT SHOULD NOT BE SAID THAT ALMOST ANY EVENT WHICH OCCURS IN WAR (AND THEREFORE COVERED BY PARAGRAPH (A)) IS ALSO A "MALICIOUS ACT" WITHIN PARAGRAPH (D). THIS WOULD MEAN THAT THE EXCLUSION FROM COVER OF RISKS UNDER PARAGRAPH (A) WOULD BE WHOLLY INEFFECTIVE.LORDSHIPS ON THIS POINT. I WOULD HOLD THAT ON QUESTION 3 THE LOSS DOES NOT FALL WITHIN PARAGRAPH (E) BUT ONLY UNDER PARAGRAPH (A) AND ACCORDINGLY I WOULD DISMISS THE APPEAL. IN ALL OTHER RESPECTS I WOULD MAKE THE ORDERS PROPOSED BY LORD HOBHOUSELORD LLOYD OF BERWICKLORDS,LORD HOBHOUSE OF WOODBOROUGH. I AGREE WITH IT AND FOR THE REASONS HE GIVES I WOULD ANSWER THE QUESTIONS IN THE WAY HE PROPOSES AND ALLOW THE APPEAL TO THAT EXTENT.LORD CLYDELORDS,LORD HOBHOUSE OF WOODBOROUGH. FOR THE REASONS HE GIVES I TOO WOULD ALLOW THE APPEAL OF THE AIRLINE UPON THE SPARES DISPUTES. I AGREE THAT THE QUESTIONS SHOULD BE ANSWERED IN THE WAY WHICH HE PROPOSES.LORD HUTTONLORDS,LORD HOBHOUSE OF WOODBOROUGH. I AGREE WITH IT AND FOR THE REASONS HE GIVES I TOO WOULD ANSWER THE QUESTIONS IN THE WAY HE PROPOSES AND ALLOW THE APPEAL TO THAT EXTENT.LORD HOBHOUSE OF WOODBOROUGHLORDS,LORD JUSTICES STAUGHTON, OTTON AND SCHIEMANN, (REPORTED AT [1997] 2 LLOYD'S REP. 687) WAS NOT UNANIMOUS. THEY DECIDED SOME OF THE LEGAL ISSUES DIFFERENTLY TO THE JUDGE. HOWEVER, THE OUTCOME WAS EFFECTIVELY THE SAME AS BEFORE. THE AIRLINE, WITH THE LEAVE OF YOUR LORDSHIP'S HOUSE, HAS APPEALED FURTHER ON CERTAIN OF THE QUESTIONS OF LAW. THE UNDERWRITERS HAVE ALSO ARGUED BEFORE YOUR LORDSHIPS CERTAIN OF THE POINTS ON WHICH THEY FAILED IN THE COURT OF APPEAL.LORDSHIPS HAVE TO CONSIDER ARE ALL POINTS OF THE CONSTRUCTION OF THE INSURANCE CONTRACT. THEY ARE MOSTLY POINTS UPON WHICH THERE HAS ALREADY BEEN A DIFFERENCE OF JUDICIAL OPINION. THEY ARE ALL POINTS WHICH COULD EASILY HAVE BEEN AVOIDED BY THE EXERCISE OF CARE IN THE PREPARATION AND DRAFTING OF THE INSURANCE CONTRACT. VERY LARGE SUMS OF MONEY ARE INVOLVED AND IT MUST BE A MATTER OF COMMENT AND CONCERN THAT THOSE INVOLVED ON BOTH SIDES OF THIS TRANSACTION SHOULD HAVE SEEN FIT TO SET OUT THEIR CONTRACTUAL INTENTION IN A WAY THAT IS INADEQUATELY STRUCTURED AND EXPRESSED AND SO OBVIOUSLY CAPABLE OF GIVING RISE TO DISPUTE. SUCH DISPUTES ARE UNNECESSARY. THEY CAN BE AVOIDED, AS HAS BEEN REPEATEDLY POINTED OUT BY THOSE BEFORE WHOM SUCH DISPUTES COME FOR DETERMINATION, BY THE EXERCISE OF PROPER CARE IN THE DRAFTING OF THE DOCUMENTS WHICH CREATE AND DEFINE THE RELEVANT CONTRACTUAL OBLIGATIONS.JUSTICE. IT CANNOT BE IN THE INTERESTS OF ANY PARTICIPANT IN THE INSURANCE MARKET THAT THERE SHOULD BE SUCH UNCERTAINTIES AND DELAYS. NOR CAN IT BE SATISFACTORY THAT AN ASSURED SHOULD BE LEFT IN SUCH DOUBT ABOUT THE EXTENT OF HIS COVER OR SHOULD HAVE TO WAIT FOR SO LONG BEFORE RECEIVING AN INDEMNITY OR HAVE TO ENGAGE IN COSTLY LITIGATION TO ASCERTAIN AND ENFORCE HIS RIGHTS. SOMETIMES LITIGATION MAY BE INEVITABLE, AS WHERE SOME WHOLLY UNFORESEEN EVENT OCCURS; BUT THAT IS NOT THE CASE HERE. THIS IS A CONTRACT OF INSURANCE: THE DISPUTES HAVE ARISEN FROM MATTERS WHICH SHOULD HAVE BEEN WELL WITHIN THE CONTEMPLATION OF THOSE PREPARING A WAR RISKS CONTRACT.LORDSHIP'S HOUSE HAS TO CONSIDER ON THE PRESENT APPEAL.LORDSHIPS ARE CONCERNED IN THE PRESENT CASE RATHER THAN ANOTHER. FURTHER, SUCH DOCUMENTS, WHICH ARE ESSENTIALLY UNDERWRITERS' DOCUMENTS, CANNOT BE RELIED UPON BY THEM TO AFFECT THE RIGHTS OF ASSUREDS UNDER CONTRACTS OF INSURANCE UNLESS THOSE DOCUMENTS ARE INCORPORATED INTO THE INSURANCE CONTRACTS THEMSELVES, WHICH THEY WERE NOT. IN FAIRNESS TO MR. POLLOCK, HIS ARGUMENT RECOGNISED THE VERY LIMITED USE THAT HE COULD MAKE OF THESE DOCUMENTS. IN MY JUDGMENT THEY DID NOT ASSIST AT ALL.LORDSHIPS' HOUSE IN CORY V. BURR. IT WAS ARGUED THAT THE WORD SEIZURE WAS CONFINED TO BELLIGERENT SEIZURE. LORD FITZGERALD (IN LINE WITH THE OPINIONS OF THE EARL OF SELBORNE L.C., LORD BLACKBURN AND LORD BRAMWELL) REJECTED THIS ARGUMENT, SAYING AT P. 405:JUSTICE, IS NOT ONE WHICH SHOULD BE READILY ACCEPTED. THE PURPOSE OF INSURANCE, PARTICULARLY WAR RISKS, INSURANCE, IS TO COVER AGAINST THE EXCEPTIONAL CATASTROPHES. THE UNDERWRITERS' POSITION IS ALREADY PROTECTED TO SOME EXTENT BY THE EXCLUSION OF WARS BETWEEN MAJOR POWERS AND IS FURTHER PROTECTED BY CLAUSES WHICH GIVE THE UNDERWRITERS THE RIGHT DURING THE CURRENCY OF THE POLICY TO RESTRICT THE SCOPE OF THE COVER BY NOTICE OR, AGAIN BY NOTICE, TO CANCEL THE POLICY. IT CAN ALSO BE COMMENTED THAT, HOWEVER THE FIRST QUESTION WAS ANSWERED, THERE IS A LIMIT TO THE LIABILITY OF THE UNDERWRITERS. THEIR MAXIMUM EXPOSURE IS KNOWN ANY ONE LOCATION. THEY ARE NOT ACCEPTING AN UNREGULATED OR OPEN-ENDED EXPOSURE. BUT IT MUST IN ANY EVENT BE STRESSED THAT IT IS NOT FOR THE COURTS TO TELL THE PARTIES WHAT CONTRACT THEY SHOULD HAVE MADE NOR, AFTER THE EVENT, TO EVALUATE THE MERITS AND DEMERITS OF THEIR BARGAIN. IF, AS HERE, THE PARTIES HAVE USED PLAIN LANGUAGE TO EXPRESS THEIR INTENTION, THAT SHOULD BE AN END OF IT: THE COURTS SHOULD ENFORCE THE CONTRACT IN ACCORDANCE WITH ITS TERMS.LORDSHIP'S HOUSE HAVE CONTENDED THAT THE COURTS BELOW WERE IN ERROR AND THAT ON THE PARTICULAR WORDING OF THIS CONTRACT THE RIGHT WAS SUBJECT TO A LIMIT.LORDSHIPS' JUDGMENTS AND THE ORDER THAT THE ACTION OF THE PLAINTIFFS AGAINST THE FIRST TO FOURTH DEFENDANTS BE DISMISSED WILL BE SET ASIDE.