Clause 25: Malicious Acts Exclusion

Comments to ITCH

This clause excludes from marine cover, any loss, damage, liability or expense arising from:

-          the detonation of an explosive

-          any weapon of war

provided the act was done maliciously or from a political motive. 

 A malicious act was defined by Lord Denning in the case Nishina Trading Co. Ltd. v Chiyoda Fire and Marine Insurance Co. Ltd. (The Mandarin Star) where it was stated “maliciously…means spite or ill will, or the like.”

In the Navigators Insurance Company Ltd and others v Atlasnavios – Navegacao Lda ("B Atlantic", [2018] UKSC 26) the Supreme Court held that the act of drug smugglers who had fastened a container full of drugs to the bottom of a vessel was not malicious in the sense that it was intended to cause harm to to either the vessel, its owner or crew. 

NMIP Comparison

The issue of war and marine peril delimitation is dealt with in Cl. 2-8 and Cl. 2-9 of the NMIP.

"The detonation of an explosive":

The “detonation of an explosive” would be deemed a war peril under both Cl. 2-9 sub-clause a if detonated in a war or war like situation and under Cl. 2-9 sub-clause c if the act was socially, religiously or politically motivated.  Falling outside of Cl. 2-9 and therefore covered under Cl. 2-8 would be acts without a social, religious or political motive. For an example the detonation of a bomb by a pyromaniac with the sole motive of witnessing the explosion.

"Any weapon of war":

The use of “any weapon of war” is deemed a war peril under both Cl. 2-9 sub-clause a if used in a war or war like situation and under sub-clause c if the act was socially, religiously or politically motivated. As stated above acts performed by individuals and/or groups without a social, religious or political motive are not within by Cl. 2-9.1.c and therefore remain covered under a Cl. 2-8 marine H&M insurance.