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Insurance Issues - Civil War - Part I

Insurance Issues - Civil War - Part I

In the course of his analysis of reported cases

, Mustill J referred to a useful quote from Lord justice Farrell, in the case of the Republic of Bolivian. Indemnity Mutual Marine Co. Ltd. [1909] 1 KB 785, in which Farrell LJ quoted from a history of the American Civil War that:

"a civil war.. .is never formally declared: it becomes such by its accidentsthe number, power and organisation of the persons who originate, and carrying it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organised armies, have commenced hostilities against their former Sovereign, the world acknowledges them as belligerents and the contest as a war."

Whilst adopting that as one form of civil war, the court did not consider it to be an exclusive definition. Nevertheless, an argument put forward by the insurers that if the events in Lebanon amounted to treason then it must constitute a civil war was dismissed. Such an argument was considered to be more relevant to "usurped power".

The court relied upon the basic rule of construction, namely the first step was to decide whether the ordinary and literal meaning of the words "civil war" assisted the court in determining its limitations. In doing so it determined that a civil war was a war which had the special characteristics of being civil, namely internal rather than external. Nevertheless, a civil war is still a war and the words did not simply denote a violent internal conflict on a large scale. Three questions are of particular importance when considering whether a civil war existed:

- Can it be said that the conflict was between opposing sides?

- What were the objectives of the sides, and how did they set about

pursuing them?

- What was the scale of the conflict and its effect on public order and on

the life of the inhabitants?

It should be possible to say of each fighting man that he owed an allegiance to one side rather than the other and it should be possible also to identify each side by reference to a community of objective. There may be more than two factions, but if the factions are too numerous, then it may simply become a civil disturbance or a tribal conflict for example. It is necessary to identify opposite sides but it may not be necessary to identify the objective of the violence as being the seizing of political power. It may be sufficient that the opposing factions wish to ensure that political power is exercised in a particular way.

Insurance Issues - Civil War - Part I

By: Willis J. Watson

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