Issues
Issue Number: 136
Publication date: 15/10/2024

Dear Readers,

Welcome to the 2024 Issue of the BILA Journal, Issue #136.

This issue contains a broad variety of content including two full-length and two shorter academic articles, a collection of contributions forming a tribute to the late Professor Malcolm Clarke, comprising a lecture by Lord Justice Males and memorials from two of his former students, Julian Burling KC and Sir Richard Aikens, and finally two book reviews.

The full-length articles both engage with matters of strong current interest: our BILA Journal Article Prize Winner for 2024 on the legality of ransom payments, and a Platinum Open Access article on the coding of insurance contracts. The latter is not a “law” article, but it sheds light on an insurance contract coding method currently under development that is sure to be of interest to BILA journal readers and raises numerous interesting legal questions that will doubtless be fascinating to legal researchers in the future.

The shorter articles also both deal with matters of importance to the industry, namely the resolution of governing law conflicts between state and federal law as regards insurance disputes in the United States, and the interpretation of war risk exclusion clauses.

Lord Justice Males’s lecture engages with the interpretation of insurance contracts, an ever-evolving and always fascinating theme within our discipline.

The two books reviewed both feature the most recent research, one on the most longstanding class of insured risks, marine risks, and one on a class of risk that is gaining ever greater prominence, namely climate risk. I am grateful to the reviewers Franziska Arnold-Dwyer and Livashnee Naidoo for providing our readers with an evaluative overview of the contents.

I very much hope you enjoy this issue of the Journal which will be my last as Journal Editor. I have very much enjoyed undertaking this role over the past five years alongside my deputy Dr Franziska Arnold-Dwyer to whom I now hand over the reins.

I am very grateful to all our contributors for making this such a rich and thought-provoking issue of the journal.

Happy Reading!

Miriam Goldby

Articles
Matthew Taylor Raffety, Pirates and Private Law: The Legality of Ransom Payments in the Age of Terrorism
The current legal framework governing ransom payments by insurers to pirates is pragmatic rather than principled and faces several commercial, moral, and legal dangers. First, efficient ransom payments encourage more piracy, raising costs for all. Second, profound conflicts of interest exist between captives and those paying their ransom as to whether to pay quickly or prolong negotiations in hope of a better final price. Third, conceptual instability of what constitutes ‘piracy’ in both domestic and international law confuses matters considerably. Finally, current industry practice risks conflict with recent anti-terrorism legislation and anti-money laundering legislation. The essay concludes that expanded use of self-insurance pools, plus a new regulatory framework will bring needed clarity and stability to marine insurance markets, and thereby ensure that England remains a preferred jurisdiction for such matters.
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John Cummins et al. - 2024 - InsurLE for Computable Contracts in Insurance
For the most part, insurance contracts are monolithic, text-based documents, written in unstructured natural language interspersed with technical terms. This means that the many provisions embedded in the contract, both explicit and implicit, are difficult for both humans and computers to understand and process. Efforts to make insurance contracts computable have typically resulted in codified representations of contracts that are separate from the contract wording. This creates the problem of verifying whether or not the contract and the codified representation of the contract have the same meaning. In this paper we address this problem by proposing the use of a computable, controlled natural language, InsurLE, which exposes the internal logic of a contract, while preserving much of the syntactic form of the original wording. InsurLE is a domain-specific extension of LE (Logical English), which in turn is ‘syntactic sugar’ for the purely logical subset of the computer language Prolog and other logic programming languages. InsurLE extends LE by incorporating an insurance-specific ontology, restrictive relative clauses and a representation of rules and exceptions that mirrors their representation in existing insurance contract wordings. However, like LE and unlike many existing contract wordings, InsurLE avoids complex syntactic structures, which can make insurance contracts difficult to understand and process. As a consequence, contracts written in InsurLE can not only be executed by computer, but can also be easier for laypeople to understand.
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Shorter Contributions
Michael F. Sturley, Marine Insurance in the United States Supreme Court: Great Lakes Insurance SE v. Raiders Retreat Realty Co.
In 2024 the United States Supreme Court announced its decision in Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, the Court’s first marine-insurance decision since its infamous Wilburn Boat case almost seventy years ago. Wilburn Boat had created an unprecedented regime under which most marine-insurance disputes in U.S. courts were governed by state law rather than federal maritime law. The Raiders Retreat Court held that choice-of-law clauses in marine-insurance policies are presumptively enforceable. That specific holding endorses a possible solution to many of the problems that the Wilburn Boat decision created. More broadly, the Raiders Retreat majority opinion and a separate concurring opinion by Justice Thomas call into question the long-accepted understanding of Wilburn Boat that the lower courts and the maritime bar have shared for decades. Going forward, it is unclear how broadly Wilburn Boat will continue to apply and what that earlier decision will mean when it does apply.
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Richard L. Kilpatrick, Jr., What Courts Get Wrong About War
For half a century, Pan American World Airways v Aetna Casualty & Surety Co has been recognized as the leading American case interpreting the term “war” in the context of an insurance contract dispute. The case relays an “ancient international law definition” of the term purportedly based on English and American caselaw representing the idea that “war” only encapsulates hostilities performed by de jure or de facto governments. As modern conflicts regularly involve violence performed by non-state actors, this definition has continued to cause interpretive problems in insurance cases, which raises the question of whether the approach is indeed historically entrenched. Retracing the analytical steps contained in the Pan American decision, this brief article argues that the rule might not be so ancient after all.
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Tribute to Sir Malcolm Clarke
J Burling - 2024 - Professor Malcolm - An Appreciation Clarke
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Sir R Aikens - 2024 - Introduction
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Lord Justice Males - 2024 - Interpreting Insurance Contracts
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Book reviews
F. Arnold-Dwyer 'Review of Özlem Gürses (ed.), Research Handbook on Marine Insurance Law'
Franziska Arnold-Dwyer’s review of Özlem Gürses (ed.), Research Handbook on Marine Insurance Law (Edward Elgar, 2024), 392 pp, ISBN 978 1 80392 667 4, Hardback £200. Also available as e-book.
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L. Naidoo, Review of Franziska Arnold-Dwyer, Insurance, Climate Change and the Law
Livashnee Naidoo’s review of Franziska Arnold-Dwyer, Insurance, Climate Change and the Law (Routledge, 2024), 394 pages ISBN 9781032289595, Hardback £192. Also available as e-book.
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