Peter MacDonald Eggers KC, Sandra Healy and Sophie Hepburn represented the successful claimants, including Nicholas G Moundreas Shipping SA, in Delos Shipholding SA & Ors v Allianz Global Corporate and Specialty SE & Ors (“WIN WIN”) [2025] EWCA Civ 1019, in which the Court of Appeal handed down judgment on 30 July 2025.
The Court of Appeal (Asplin, Males and Popplewell LJJ) dismissed the defendants’ appeal and upheld the claimants’ claim for an indemnity for CTL.
The claim arose out of what was described by Dias J at first instance as the “illegal parking” of the Capesize bulk carrier WIN WIN just inside Indonesian territorial waters off Singapore in February 2019. Despite the minor nature of the infraction, the WIN WIN was detained by the Indonesian authorities for more than a year, while the Master was prosecuted and eventually convicted under the Indonesian Shipping Law.
Following the detention of the WIN WIN for more than six months, after which it became a CTL under the Policy’s Detainment Clause, the claimants brought a claim under the Policy. The defendant insurers denied the claim on four bases, all of which were rejected by Mrs Justice Dias.
The defendant insurers’ appeals related to two issues:
- Whether the Judge was wrong as to the interpretation of Exclusion (e) of the American Institute Hull War Risks and Strikes Clauses (1977), which excludes loss caused by, resulting from or incurred as a consequence of “Arrest, restraint or detainment under customs or quarantine regulations and similar arrests, restraints or detainments not arising from actual or impending hostilities.”
- Whether the Judge erred in finding that the claimants had not breached the duty of fair presentation under the Insurance Act 2015 by failing to disclose that the sole director of the registered owner of the vessel was the subject of criminal charges in Greece.
On Exclusion (e), the Court of Appeal reached the same conclusion as Dias J but via a slightly different route. The Court of Appeal interpreted the clause as excluding detentions (inter alia) under two different kinds of regulation (i.e. customs and quarantine regulations) and extending to other regulations which have a similar purpose to the specified regulations. Applying this construction on the facts, the Court of Appeal held that the detention of the WIN WIN was completely unconnected with the import of goods (customs) and with health (quarantine), and therefore had no relevant similarity to an arrest or detention under customs or quarantine regulations.
On the duty of fair presentation, the Court of Appeal dismissed the appeal and upheld the Judge’s decision at first instance on the basis that the claimants did not have actual or constructive knowledge of the criminal charges.
The key issue relating to actual knowledge was whether the director of the registered owner of the WIN WIN was “senior management” for the purposes of section 4(3) of the 2015 Act, in circumstances where he was the sole nominee director of a one ship company. The Court of Appeal held that he was not “senior management” for the purposes of the 2015 Act, noting that this conclusion was based on the “plain wording” of the Act.
With regard to constructive knowledge, the Court of Appeal held that Dias J was entitled to conclude that the making of reasonable enquiries did not require the nominee director to be asked whether he knew of any circumstances which might affect the risk. The Court of Appeal had regard to the fact the nominee director had no operational role or function regarding the trading of the vessel and her insurance, the judge considered that he would not have known anything about the risk to be insured and that this would reasonably have been regarded as a pointless question.
Given the Court of Appeal’s decision on actual and constructive knowledge, the Court of Appeal did not determine the other fair presentation issues before the Court, these being: whether the criminal charges were material; whether the defendants were induced by the alleged non-disclosure; whether the insurers affirmed the policy; and an issue relating to the rights of composite assureds in circumstances where a breach of the duty of fair presentation is established against one assured.
Peter MacDonald Eggers KC, Sandra Healy and Sophie Hepburn were instructed by Maria Moisidou and Harris Kouppas of Hill Dickinson International.
