Assimilation of "le fait du prince" with covered war risks amounts to the exclusion of this risk under an “all risks” cargo open cover.
In its judgment of 15 January 2018 the Court of Appeal Ghent had to decide whether the confiscation of goods by the Byelorussian custom authorities was covered under a MARSH marine cargo “all risks” policy, which included both risks on land and at sea, but excluded war risks. However, the open cover additionally provided coverage for war risks, but only at sea.
The “all risks” cover did not explicitly enumerate acts of public authorities (“le fait du prince”) under its exclusions (it was not mentioned under the war risks exclusions), but under the war risks coverage they were assimilated with war risks "as far as useful".
Insurers argued that from this assimilation of “le fait du prince” under the war risks coverage it follows that this risk was excluded as a war risk under the all risks coverage and hence that they were only covered under the war risks, i.e. when the act of the public authority occurred at sea. Since the confiscation occurred on land, there was no coverage for the claim.
The insured argued that under Belgian law some risks (e.g. marine risks), are no longer covered in case of war and hence that the assimilation of certain risks with war risks covered under the war risk coverage can only be interpreted as an extension of the risks covered in case of war, and that an extension of the war risks coverage cannot be interpreted as an extension of the war risks excluded under the all risks cover.
The Court of Appeal Ghent followed the underwriters’ interpretation of the policy and decided that their interpretation was supported by the fact that on the backside of the insurance certificates issued (though referring to different all risks insurance conditions than those applicable) acts of public authorities were also excluded, as well as by the fact that the insured did not timely protest against the underwriters’ rejection of coverage based upon that interpretation of the policy.
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