Fortuity in the Law of Marine Insurance

Abstract

This article addresses the meaning and significance of the concept of fortuity within the law of marine insurance. Voluntary conduct, naturally occurring losses and inherent vice, and inevitable losses are analysed, highlighting both the variable role and varied meanings of fortuity and considering the extent to which fortuity represents a presumption as to the interpretation of insurance contracts or an absolute restriction on the scope of insurance.

In insurance contract law, fortuity is a variable concept that addresses questions of both the likelihood of loss and the cause of loss. A loss may be said to lack fortuity for a variety of reasons: because it was bound to happen; because it happened naturally by reason of the condition of the insured property without external intervention; because causative external intervention, although present, achieved a certain standard of likelihood; or because the loss was the natural result of human intervention, usually by the assured. In most instances, however, the restriction on cover flowing from an idea of fortuity is not absolute, but a presumption born of the express wording of the policy or implicit in the natural understanding of the bargain embodied in an insurance contract. This article is concerned to evaluate the variable role of fortuity in contracts of marine insurance, although much of the discussion applies equally to non-marine policies.

Keywords: Fortuity, marine, insurance, all risks, voluntariness, wilful misconduct, unseaworthiness, perils of the sea, inherent vice, latent defects, leakage, inevitable loss