The English Commercial Court has held that the "illegal parking" of bulk carrier  “WIN WIN” in Indonesian waters, giving rise to its lawful detention by the Indonesian authorities and a consequent CTL claim, was fortuitous and, therefore, could be covered by the vessel's war policy. 

"Fortuity" is a vital element of any insurance claim. Explained in the “WIN WIN”, what this means is that "[…] consequences which can be expected to flow in the ordinary course of events from a deliberate choice made by the assured are not fortuitous" and will therefore not be covered.  

Therefore, to establish a lack of fortuity, the insurers of the “WIN WIN” would have had to show:  

(i) Some choice by the assured; and that 

(ii) The consequences which occurred were such as to flow in the ordinary course of events.  

Neither of these criteria could be made out.  

Neither the Master nor the commercial managers were subjectively aware that they were choosing to anchor inside territorial waters rather than outside. The anchorage location was known as Eastern Outer Port Limit Singapore, and was thought by the Master and the managers to be international waters. 

As to whether the detention was an ordinary consequence of the assured's conduct in the ordinary course of trading, the judge held that "something akin to inevitability" is needed. Reviewing the circumstances leading to the detention, the judge held that as at mid-February 2019 when the vessel was detained, the detention was not an ordinary incident of "merely anchoring in Indonesian territorial waters without permission". The detention was "wholly unprecedented" and "extraordinarily heavy-handed" when a warning and a request to move out of territorial waters might reasonably have been expected.  

Following this case, it will be difficult for insurers to decline a claim on the basis of lack of fortuity. Insurers will need to show that the assured knew that they were making a choice. But they will also need to show that the loss or damage was an ordinary consequence of that choice, whether or not the assured knew what the consequence would inevitably be.