Insurance and reinsurance: 'perils of the seas' and fraudulent devices

The recent decision of Mr Justice Popplewell in Versloot Dredging BV v. HDI Gerling and others (The DC Merwestone) [2013] EWHC 1666 (Comm)) in the Commercial Court is of considerable significance to marine insurers and non-marine insurers alike, since it involves a detailed examination and hostile critique of the development and application of the concept of ‘fraudulent devices’ in the context of an insurance claim.

The case involved the defence by hull and machinery underwriters of a claim for the cost of replacing a vessel’s engine following a flooding incident in the Baltic in January 2010. The policy was on the Institute Time Clauses – Hulls 1.10.83, with the Additional Perils Clause. Underwriters ran three defences, namely (1) that the damage to the engine was not caused by an insured peril; (2) that the damage to the engine was attributable to the unseaworthiness of the vessel on sailing, with the privity of the assured; and (3) that, in any event, even if the claim was recoverable in principle, the assured had forfeited its claim by reason of the employment of fraudulent devices in the presentation of the claim…

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