Numerous military conflicts are ongoing around the world everyday. The news is constantly reporting on clashes in places such as Pakistan, Georgia or the African continent – at first glance, it seems that wars are raging in all four corners of the globe. But when underwriters, brokers, shipbrokers and, especially, legal counsels ponder whether a specific incident constitutes a war, the definition of war may prove very complicated. This article will consider this issue, particularly from the viewpoint of shipowners, but it may also provide material for the interpretation of insurance terms and conditions and other contracts, at least with respect to Anglo-Saxon law.
Kawasaki KKK versus Bantham Steamship
Since several prolonged wars are ongoing in different parts of the world on a continuous basis, one would assume that the concept of war would have become clear both in standard language and law. According to international law, war can be waged only by independent states or rebels recognised as belligerent. Sometimes, the definitions of war refer to a minimum number of victims. Despite the fact that both war and trade have been conducted throughout history, scarcely any legal praxis exists on the definition of war in relation to private-law contracts.
In the case of Kawasaki KKK versus Bantham Steamship, the court of appeal was unable to determine whether the cancellation of a charterparty in 1937 on the grounds of war was justified or not. In this case, there were 50,000 soldiers, supported by the Japanese fleet and air force, in the Shanghai area. In Northern China, three Japanese armies totalling 300,000 men advanced, and more than 50 battles were fought, in 1937. However, no declaration of war was made; indeed, diplomatic relations between the countries were not even severed. The court of appeal ended up by stating that it was unable to determine the meaning of war as referred to in the charterparty. However, the court did state that judges should settle the case based on the prevailing facts, regardless of whether a declaration of war had been made or whether diplomatic relations had been broken off.
Spinneys Limited versus the Royal Insurance Company Limited
This more recent case dealt with the question of whether there was a civil war in Lebanon. Without attending to all of the details during the court’s consideration of the case, this article will restrict itself to pointing out that the court finally developed a three-stage test for determining whether the incident constituted a war: 1) Does the case really involve a conflict between opposing sides? 2) What are the objectives of the two sides, and what means do they use to achieve them? 3) To what extent does the conflict affect public order and the lives of the inhabitants?
One of the most recent cases of the war-related cancellation of a charterparty is the Northern Pioneer case. The charterparty had been cancelled on the basis of a War Cancellation clause, since Germany had sent warplanes to assist NATO in its Kosovo operation. The charterparty concerned German vessels and its War Cancellation clause read as follows: "in the event of the nation under whose flag the vessel sails becoming involved in war, this charter may be cancelled."
Naturally, the tribunal was unable to reach a unanimous decision on whether there was a war and, if so, whether Germany was involved in it. However, the majority came to the conclusion that the conflict did not constitute a state of war and that Germany was by no means involved in a war. Thus, the cancellation of the charterparty was considered illegal. The case was eventually taken to a court of appeal which, however, avoided considering the key issue since the handling of the case was terminated on procedural grounds.
Definition of war in the light of recent events and historical wisdom
We all remember how relations between Russia and Georgia became strained in the early autumn of 2008. If we consider the situation on the basis of the Spinneys test, it was indeed a conflict between two opposing parties. But what about the actual objective, and the means of achieving this objective? Russia announced that its troops were in the area merely to keep and maintain peace and protect Russian citizens. Although the consequences of this situation were, and still are, severe for local people, does the conflict, after all, satisfy stages two and three of the Spinneys test?
As is often the case with law, each charterparty and contract of carriage, as well as insurance terms and conditions and the prevailing circumstances, must be considered on an individual basis. There is no universally applicable, all-purpose solution that would suit all situations. I am afraid that the next test case will emerge with respect to the Somalian coastline, where the vessels of pirates, the naval forces of various countries and private security service companies are sailing, eyeing each other suspiciously. However, from the perspective of the definition of war by Karl von Clausewitz, the matter seems very clear: “War is nothing but a duel on an extensive scale. Each strives by physical force to compel the other to submit to his will.”
Kari Koljonen
References:
Lloyd's List 3 September 2008
Karl von Clausewitz, 1981 WSOY
