A German appeal court determined, in a marine claim, that the proximate cause of a vessel’s grounding and ultimate sinking after its main engine cut out was bad weather rather than an engine problem. Accordingly the loss was held to be proximately caused by peril of the sea, covered under the relevant policy.
The events took place off the South African east coast. The vessel had suffered temperature increases in its engines and a fire in a scavenging air duct in its main engine. The main engine was switched off to assess the problem. Attempts to restart the engine failed.
The ship was unmaneuverable and drifted towards the coast. The anchor was dropped and a salvage tug called for assistance. By the time the tug arrived the weather deteriorated so that there were significant winds and waves with the result that attempts to tow the vessel failed and the anchors couldn’t hold the ship, which grounded.
The South Africa Marine Authorities ordered that the vessel be towed outside of South Africa’s 200 nautical mile exclusion zone. On the way the ship sank.
The court found that there were a number of factors that contributed to the loss of the ship, including the fire and main engine failure which had led to the ship’s unmaneuverability. The court held however that even in those conditions the ship could have been saved by the salvage tug and wouldn’t have been at risk of sinking but for the deteriorating weather conditions.
The court held that the proximate cause was the deteriorating weather conditions which had prevented the towage and caused the ship to drag anchor, ground and ultimately sink.
The relevant principles and approach would be no different in South African law which determines liability on the part of the insurer only if the loss or occurrence for which the claim is brought is the proximate result of the peril or at least one of the perils insured against. Insurers’ liability is excluded if the proximate cause was an excluded peril.
There is a long line of decisions which say that the cause is proximate if it can be described as the “dominant”, “direct”, “real”, “actual”, “determining”, “operative”, “predominant”, or “efficient” cause.
Where the cause and effect is indirect the cause is not proximate.
The cause must be proximate in efficiency but need not be the last in time. Subject to the policy wording, it need not necessarily be the sole or exclusive cause, provided it is one of several co-operating causes.
The operation of the proximate cause rule can be excluded or adapted by way of a clearly expressed intention in the policy wording. Bear in mind that even then that doesn’t exclude the operation of the principle of causation generally and the requirement that there must be a causal link between the peril and the occurrence or loss.
Where there are multiple causes which occur subsequent to an original cause, that may neutralise the latter as a factual cause. That depends on the facts of each case.