The plaintiff sued the defendant for breach of a contract of insurance, Marine Hull policy no 9/081/00027/96, dated 4 November 1996. The plaintiff insured against the perils enumerated in the policy, including violent theft by persons from outside the vessel and piracy for a period of 12 months. The geographical limits under the policy were East African Coast, Kismayu and Mogadishu. On 19 December 1996, while insured under the policy and near Kismayu, 17 gunmen hijacked the vessel. Efforts were made by the plaintiff but there has been no recovery of the vessel to date. The plaintiff pleads that the vessel has become a total loss by violent theft by persons from outside the vessel or piracy and claims the insured sum.

The defendant pleads that under the policy war risks were excluded from the plaintiff’s cover. The defendant alleges that the plaintiff’s vessel Cloves is alongside a dock or berth in Kismayu port and the plaintiff is at liberty to sail the vessel back to Mombasa. The defendant denies that the ship became a total loss by act of violent theft by persons outside the vessel and claims that no act of piracy ever occurred in respect of Cloves.

Held: Judgment for the plaintiff in terms of the insured sum.

The defendants relied on the war exclusion clause in the policy on the basis that there is a civil war in Somalia. They also relied on the UNCLOS definition of piracy to indicate that what occurred in this case was not piracy as it happened within territorial waters. Article 101 of UNCLOS defines piracy as: 'any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State'.

The Judge held that the persons that commandeered the ship were not acting for the State or any political organisation, but were rather private criminals who took the goods for themselves. The war exclusion clause was therefore not applicable. As to piracy, in The Andreas Lemos [1982] Lloyd's Rep 50 the ship was anchored 2.8 miles from the land but within the 12-mile limit within territorial waters of Bangladesh when it was robbed. The dispute was as to whether the loss came within the cover provided by the marine policy. It was held that there was no reason to limit piracy to acts outside territorial waters in the context of an insurance policy, if a vessel was in the ordinary meaning of the phrase 'at sea' or if the attack upon the vessel could be termed a maritime offence. Here, the plaintiff's ship was detained by persons who demanded a ransom. Although the owner tried to send some money it was not found to be adequate and the gang has continued to detain the motor vessel. The vessel is therefore lost and the plaintiff should be paid the sum assured.