Concurrency of Causes and The Cendor MOPU
| Author | Roberto Barriga |
| Pages | 11-17 |
SSLR Concurrency of causes and The Cendor MOPU Vol 1(2)
11
Concurrency of Causes and The Cendor MOPU
Roberto Barriga
he scope of the defence of inherent vice was strictly delimited in the
Supreme Court’s judgment in The Cendor MOPU [2011] UKSC 5,
handed down on 1 February 2011. The Court held that the test for
inherent vice is whether the loss was proximately caused by something solely
attributable to an element within the subject matter insured and not by an
external event.
Dealing with the issue of proximate causation, the Court explained the
difficult divergence between perils of the seas and inherent vice, broadening
the scope of the former and limiting that of the latter, and finding against the
possibility of concurrency between them.
By doing this, the Supreme Court has cleared a highly uncertain issue and has
settled the law in a controversial aspect of the law. The explanation given by
the Court on causation issues in situations where perils of the sea and inherent
vice appear to be rival causes of the loss should help avoid some liability
disputes.
Factual Background
The Cendor MOPU was an oil rig laid up in Texas that was purchased in May
2005 by the assured for conversion into a mobile offshore production unit for
use in Malaysia. The rig was what is called a ‘self elevating mat supported
jack-up rig’ that consisted of a working platform, which could be moved up
and down three legs extending to the seabed. The legs were tubular, welded
steel, cylindrically shaped with a length of 312 feet and a weight of 404 tons.
The rig was to be dry towed to Malaysia, and was insured for that purpose
under a policy on cargo dated 5 July 2005 incorporating the Institute Cargo
Clauses (A) of 1982, thus covering “all risks of loss or damage to the subject-
matter insured except as provided in Clauses 4, 5, 6 and 7…”.1 Clause 4.4
expressly excluded “loss, damage or expense caused by inherent vice or nature
of the subject matter insured”.
The rig was towed with the three legs extending into the air. Because towing
the rig in this way exposed it to a risk of fatigue cracks during the voyage, the
assured arranged for inspection of the legs at Texas and the insurers required
as a condition of the policy that appointed surveyors approve the
arrangements for the tow. The surveyors issued a Certificate of Approval
where it was required that the legs were re-inspected when reaching Cape
1 ICC (A) cl 1
T
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