This case note is based on an article that appeared in the April 2004 edition of ‘Reinsurance Notes’, published by the London solicitors, Lawrence Graham

Facts
Glencore (formerly Marc Rich) traded crude oil and refined products. They had an extensive business relationship with Metro Trading International ("MTI"), who operated a floating oil storage facility and bunker supply business, using specially adapted vessels anchored off Fujairah in the Gulf of Oman. In late 1997, MTI misappropriated large quantities of oil held in store for Glencore.

Glencore made use of open insurance covers in connection with its commodity trading. The insurance contracts were worded in broad terms and took the form of marine open covers in favour of Glencore, covering transit by land, water, air and pipeline from any port or place in the world to any other port or place. The cover made express reference to storage operations on the facility off Fujairah and gave coverage at a fixed premium, on the basis of an estimate of throughput at the facility. Glencore sought to recover from its insurers, Alpina, in respect of the stolen oil, which they said had a value in excess of US$250m. Alpina declined liability on the grounds of misrepresentation and non-disclosure.

The first issue was whether underwriters could avoid the policy on the basis of an erroneous pre-estimate of "throughput" at the storage facility. Alpina’s argument was that, whilst they had been entitled to assume that Glencore's pre-contractual estimate of throughput at Fujairah had been made in good faith, was accurate, and not prone to unreliability, the difference between the estimate and actual throughput (which was in fact some three times greater) was not advised to them at renewal. Therefore, the underwriter had been deprived of the opportunity to question whether to continue charging an "in full" premium without imposing an end of year adjustment.

Alpina's second argument was that the details of certain material aspects of the relationship with MTI should have been disclosed, given (a) the high volume of oil traded between the two parties and the contractual arrangements between them, (b) that the oil was to be sold to MTI as an end-user for its business of blending and selling fuel oil, (c) the absence of independent inspectors to monitor discharge of cargoes carried into MTI's facilities, (d) the absence of arrangements for the verification of quantities held in store, and the non-use of holding certificates, (e) the failure of Glencore to instruct independent inspectors to measure the quantity of oil held in storage, and (f) that MTI, rather than Glencore, chose the vessels that made up the floating storage facility. These were, alleged Alpina, aspects of the business that required disclosure to underwriters if a fair presentation of the risk was to be made.

Judgment
In the Commercial Court, Moore-Bick J approached the first issue by identifying the factors on which the risk run by the underwriters depended. The risk was insuring goods in store and depended on the value of those goods and the period of their exposure to insured perils. From here, he identified that the method used to assess the risk was defective in that throughput had no direct correlation to the average quantity of goods exposed to risk at any one time. Thus Alpina had not been in possession of the means to assess the risk, in any event. The inability to charge a premium proportionate to the actual risk had been exacerbated by Alpina's approach of setting the premium by reference to an unadjusted estimate of throughput. Moore-Bick J held, in any event, that the underwriter had not been entitled to make any assumptions as to the reliability of the estimate. Commodity trading is by nature opportunistic, with the market changing rapidly and Alpina should have appreciated that the estimate was liable to falsification and inaccuracy.

The judge further held that Alpina had the burden of showing that its underwriter would not have written the policy in the same terms, if proper disclosure had been made. He found that Alpina had been unable to demonstrate this.

On the second issue, the particular way in which Glencore conducted its business with Metro, Moore-Bick J concluded that, when an insurer was asked to write an open cover in favour of a commodity trader, he must be taken to be aware of the whole range of circumstances that might arise in the course of carrying on business of that kind. Having looked at each aspect complained of, the judge held that none of them was so unusual that it fell outside the range of possibilities that a prudent underwriter could be expected to have taken into account. On the basis that the arrangements described above were not uncommon in some circumstances, the insured was not bound to disclose them, even though they tended to increase the risk.

The judge pointed out that Glencore's storage of oil at Fujairah represented only a small part of the risk covered by the open cover as a whole. In these circumstances, whilst requirements as to formalities recording the quantities stored might have been appropriate had the Fujairah storage operation been written as a facultative risk, the underwriter of this open cover was not concerned with the precise arrangements at the storage facility.

Moore-Bick J was prepared to accept that circumstances, none of which could be described as extraordinary in isolation, could when combined give rise to a duty of disclosure. However, for this to be the case, the combination of circumstances had to operate so as to enhance the risk of loss significantly. This was not the case here since, on analysis, each matter complained of was unrelated to any other. Accordingly, Glencore had not been bound to disclose the nature of its relationship with MTI.

Glencore had positively misrepresented that it did not have reason to believe that there would be any blending of oil held by MTI to its order. The judge accepted that this may have been a material mis-statement. He held, however, that Alpina had not been induced by that representation to grant cover in that, on the facts, the statement had not made any difference to the individual underwriter's perception of the risk.

Comment
An appeal is understood to be pending. [Editor, 30 May 2004]