The Kervel

CourtCommercial Court (France)
France, Tribunal de Commerce of Nantes
The Kervel

War In general Definition and technical meaning of war Fisheries disputes Whether capture and subsequent sinking of French lobster-boat off coast of Nicaragua to be deemed war risk excluded by insurance policy Whether fisheries dispute constitutes state of de facto or de jure belligerency such as to bring war risk clause into operation The law of France

Summary: The facts.The owners of the Kervel brought an action against the insurers claiming the insured value of the ship together with damages in respect of refusal to pay. The insurers contended that the circumstances of the loss of the Kervel were not within the terms of the insurance policy. The facts were, briefly, as follows: on 12 February 1965 the Kervel was fishing for lobsters off the coast of Nicaragua, between the mainland and the Corn or Bais Islands. It was sighted by planes of the Nicaraguan Air Force, which ordered it to make for the island of Mais. There it was arrested by the Nicaraguan National Guard and ordered to make for the port of El Bluff on the mainland under escort. During the voyage the captain of the Kervel refused to continue, on account of a risk of running aground due to insufficient depth of water, but was forced at gunpoint to continue until the Kervel finally sank between El Bluff and the island of El Venado. The insurers contended, inter alia, that the loss of the Kervel was the consequence of its arrest, seizure and the use of force by the Nicaraguan armed forces, and that liability was excluded under the terms of the policy for damage and loss arising from capture, arrest, seizure, constraint, molestation or detention by any Government or authority whatsoever. Moreover, the seizure of the Kervel did not constitute an isolated act, but was a governmental act connected with a state of tension between the Governments of France and Nicaragua and was therefore, even if not a war risk, an exceptional risk outside the scope of normal insurance cover which was restricted to normal maritime risks. Secondly, the insurers were exempt from liability under the policy in respect of wrongful acts of the captain and all events whatsoever resulting from breach of blockade, contraband or prohibited or clandestine measures. Since the Kervel had been fishing within an area prohibited under Nicaraguan law although outside the three mile limit, and this act was the reason for its seizure, the insurers were not liable. Nicaraguan territorial waters could not be regarded as limited to three miles, and the Nicaraguan Government was not obliged to accede to the claims of the French Government to that effect.

Held: Judgment must be given in favour of the defendants on grounds which raised no issues of international law, but in favour of the plaintiffs on the points summarized above. (i) Although the insurance policy excluded, under the heading of War Risks, damage and loss arising from capture, arrest, etc., there was no such state of de jure or de facto belligerence between France and Nicaragua as to require the application of that clause to the circumstances of the sinking of the Kervel. (2) The state of confusion arising from diverse claims to fix unilaterally the limits of territorial waters had the effect of casting doubt on what was and was not lawful. In the present case the Kervel, in fishing at a distance of 25 miles from the coast of Nicaragua, must be deemed to have been operating on the high seas.

The following is the text of the relevant part of the judgment:

Fender, in his capacity as director of the company owning the lobster-boat Kervel, has brought an action against the insurance companies for payment of the sum of one million francs, with interest, representing the insured value of the Kervel which was lost following an incident at sea on 12 February 1965. He states that the insurers' refusal to pay caused damage which cannot be valued at...

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