{"id":421,"date":"2024-06-25T00:00:00","date_gmt":"2024-06-24T23:00:00","guid":{"rendered":"https:\/\/fenchurchlaw.hostingsystems.co.uk\/uk\/blog\/2024\/06\/25\/top-down-still-top-law-rsa-ors-v-textainer\/"},"modified":"2024-08-21T16:26:05","modified_gmt":"2024-08-21T15:26:05","slug":"top-down-still-top-law-rsa-ors-v-textainer","status":"publish","type":"post","link":"https:\/\/fenchurchlaw.com\/en-uk\/top-down-still-top-law-rsa-ors-v-textainer\/","title":{"rendered":"“Top Down” still top law: RSA & Ors v Textainer"},"content":{"rendered":"

In the recent decision of Royal & Sun Alliance & Ors v Textainer Group Holdings Limited & Ors <\/em>[2024] EWCA Civ 542, the Court of Appeal rejected an attempt by Insurers to avoid the application of the (seemingly) well-established \u201ctop down\u201d principle to the allocation of recoveries.<\/p>\n

Background<\/strong><\/p>\n

The (much simplified) background was as follows.<\/p>\n

Textainer is one of the largest owners\/suppliers of shipping containers.<\/p>\n

In 2016, approximately 113,000 of its containers were on lease to a Korean company, Hanjin Shipping Co Limited (\u201cHanjin\u201d).\u00a0 Hanjin became insolvent, and Textainer incurred a significant loss, partly in relation to containers which were never recovered and partly in relation to the cost of retrieving\/repairing the others, as well as lost rental income.<\/p>\n

Textainer had a \u201ccontainer lessee default\u201d insurance programme, written in layers up to (for present purposes) $75 million, with a $5m retention. Textainer\u2019s overall loss, as a result of Hanjin\u2019s default, was approximately $100m. It absorbed the first $5m through its retention, and its primary and excess layer insurers (\u201cInsurers\u201d) paid out policy limits amounting to $75m, leaving an uninsured loss of $20m.<\/p>\n

Textainer subsequently recovered approximately $15m in Hanjin\u2019s liquidation.<\/p>\n

Under ordinary \u201ctop down\u201d principles, all of that recovery would have inured to Textainer.\u00a0 Insurers nevertheless claimed that they were entitled to a proportionate element of it (amounting, on the above figures, to approximately 75%).<\/p>\n

The top down principle, and Insurers\u2019 attempt to circumvent it<\/em><\/strong><\/p>\n

The top down approach to the allocation of recoveries was established by the House of Lords\u2019 decision in Lord Napier and Ettrick v Hunter<\/em>[1993] AC 713.\u00a0 It equates to \u00a0assuming that the recoveries are made simultaneously with the loss and then considering how the net loss would be borne (ie, first by the retention\/deductible, then by the primary layer, then carrying up the excess layers, and finally to the uninsured element).<\/p>\n

Insurers argued that the policies in the present case were distinguishable from the stop loss policies considered in Napier<\/em>. The stop loss policies, they argued, applied to a single (or “unitary”) financial loss for a specified period of underwriting by the name. In contrast, the container lessee default policies did not (they argued) insure a unitary loss, but \u201ccovered the physical loss of or damage to individual containers and related costs\/loss of earnings as and when those losses were incurred, eroding first the retention, then the layers of cover, one by one\u201d.<\/em><\/p>\n

Insurers argued that there was a fundamental distinction between the case of a single or unitary loss (as considered in Napier<\/em>) and that of multiple losses, such as the present case. They argued that, although in the former case subsequent recoveries would reduce that single loss top down, where there were \u201cmultiple losses of different items of property at different times, recoveries in respect of those specific items not only could but must be allocated to the insurer who had indemnified against their loss\u201d.<\/em><\/p>\n

However, those arguments were at odds with the decision by Langley J in Kuwait Airways Corporation v Kuwait Insurance Co S.A.K<\/em> [2000] 1 Lloyd\u2019s Rep 252 (\u201cKuwait Airways\u201d<\/em>).<\/p>\n

Kuwait Airways<\/em><\/strong><\/p>\n

In that case, the policyholder, Kuwait Airways (\u201cKAC\u201d), had lost 15 aircraft when they were seized Iraqi forces during the 1990 invasion of Kuwait.\u00a0 The relevant aviation insurers paid KAC the policy limits of $300m, leaving it with $392m of uninsured losses.<\/p>\n

Subsequently, 8 of the aircraft, valued at c $395m, were recovered.\u00a0 Under conventional top down principles, that recovery would have inured to KAC, leaving its residual loss covered by the insurance payout.<\/p>\n

The aviation insurers nevertheless attempted to have the value of the recovered aircrafts apportioned pro rata<\/em> between them and KAC, on the supposed basis that \u201ceach aircraft loss was a separate loss, exemplified by the fact that each had its own agreed value in the policy, the premium was based on that value and\u2026the payment made of $300m was in effect a payment of 300\/692 of the agreed value of each aircraft\u201d. <\/em><\/p>\n

Langley J rejected that argument. He held that there could not be:<\/p>\n

\u201c\u2026 any justification for \u201cdisaggregating\u201d recoveries where there is an aggregate limit to the indemnity.\u00a0 Moreover the aggregate limit (in the case of one occurrence) applied regardless of the number of aircraft lost\u2026whether or not there were a number of losses or only one loss (there was certainly only occurrence) is my judgment nothing to the point\u2026\u201d. <\/em><\/p>\n

He also held that:<\/p>\n

\u201c\u2026 that conclusion accords with commercial good sense. Had KAC lost only the 7 aircraft which were in fact destroyed, its insurers would unarguably have had to pay up to the limit of the indemnity without any recovery.\u00a0 It would \u00a0be remarkable if the policy was to be so construed that, because KAC lost those 7 aircraft but also 8\u00a0 others which were later recovered intact, insurers became entitled to a credit for proportion of the value of the aircraft recovered\u201d.<\/em><\/p>\n

Faced with those comments, which seemed to apply so closely to the present case, \u00a0Insurers were compelled to submit that Kuwaiti Airways<\/em>could be distinguished or, failing that, was wrongly decided.<\/p>\n

The Court of Appeal\u2019s decision<\/em><\/strong><\/p>\n

Insurers had lost in the Commercial Court in front of David Railton KC, sitting as a Deputy Judge, and were no more successful when they appealed to the Court of Appeal.<\/p>\n

The Court of Appeal\u2019s judgment was given by Phillips LJ, with Arnold & Falk LJJ concurring.<\/p>\n

The Court of Appeal agreed with the Deputy Judge that the true nature of Textainer\u2019s insurance was cover \u201cagainst particular layers of loss\u201d <\/em>and that, if recoveries were not applied top down but proportionately to the insured layers as well as to the uninsured losses, Textainer would not receive the extent of the indemnity for which it had contracted.\u00a0 Moreover, Textainer would, if Insurers were correct, have been in a worse position than if the recoveries had been achieved before Insurers had paid out. By contrast, Dillon LJ, in the Court of Appeal in Napie<\/em>r, was clear that the outcome should be the same \u201cwhether the underwriters have or have not already paid the amount for which they are liable for the time the recovery is achieved<\/em>\u201d.<\/p>\n

In short, the Court of Appeal agreed with Textainer that the reality was that the insurance was not provided in relation to individual containers, most of which, if lost, would eventually be recovered, but that \u201cthe real subject of the insurance is the multiple strands of lost rental, costs and expenses which will be ongoing and intertwined\u2026\u201d <\/em><\/p>\n

Accordingly Insurers\u2019 challenge to the top down principle failed.<\/p>\n

Other issues<\/em><\/strong><\/p>\n

The Court of Appeal\u2019s judgment covered two other issues.<\/p>\n

(a)\u00a0\u00a0 Which losses were paid by whom?<\/strong><\/p>\n

This was a factual issue.\u00a0 Some of Textainer\u2019s containers had been leased to Hanjin on operating leases and some on finance leases.\u00a0 However, the settlement by the liquidator only applied to the containers supplied on operating leases.<\/p>\n

This required Insurers to show (assuming their challenge to the top down principle had succeeded) precisely which containers they had indemnified and which formed part of Textainer\u2019s uninsured loss. Only then could one allocate the recovery.<\/p>\n

Insurers argued that there should be a \u201cpragmatic assumption\u201d<\/em> that the losses in respect of finance leases would have occurred at the same time as, or at least in proportion to, losses in respect of operating leases, so that there was nothing to stop a pro rata<\/em>apportionment of the recovery between insured and uninsured losses.<\/p>\n

The Court of Appeal rejected that approach. It said it had been open to Insurers to adduce evidence on this issue and that, having failed to do so, they could not resort to an assumption.<\/p>\n

(b)\u00a0\u00a0 Under-insurance<\/strong><\/p>\n

Finally, Insurers sought belatedly to argue that, because there had been an element of uninsured loss, this indicated that Textainer had been under-insured and that its \u00a0loss should be reduced by the application of average.<\/p>\n

That argument failed.\u00a0 Phillips LJ held the concept of under-valuation or under-insurance has no relevance to insurance written in layers.\u00a0 Unlike a single policy insuring (say) a ship, where under-insurance exposes the insurer to the same risk (up to the \u00a0limit of cover) but the premium has been unfairly supressed, where cover is written in layers, the cover by definition matches precisely the value of the risk which the insurer has accepted.<\/p>\n

Conclusion<\/em><\/strong><\/p>\n

It is gratifying that Insurers\u2019 attempt to circumvent the top down principle was so robustly rejected by the Court of Appeal. Likewise, its clarification that under-insurance and \u00a0average have no relevance to insurance written in layers will also be welcomed by policyholders.<\/p>\n

Jonathan Corman, Partner<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

In the recent decision of Royal & Sun Alliance & Ors v Textainer Group Holdings Limited & Ors [2024] EWCA […]<\/p>\n","protected":false},"author":68,"featured_media":126,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[3],"tags":[195,348],"class_list":["post-421","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news","tag-financial-commercial-risks","tag-financial-professional-risks"],"acf":[],"yoast_head":"\n"Top Down" still top law: RSA & Ors v Textainer - Fenchurch Law UK<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/fenchurchlaw.com\/en-uk\/top-down-still-top-law-rsa-ors-v-textainer\/\" \/>\n<meta property=\"og:locale\" content=\"en_GB\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\""Top Down" still top law: RSA & Ors v Textainer - 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