9/11 Attack On The World Trade Center: How Many Events?

The decision of Mr Justice Field in Aioi Nissay Dowa Insurance Company Ltd v Heraldglen Ltd & Ano1arose from an appeal against an Award made by a Tribunal comprising Ian Hunter QC, David Peachey and Richard Outhwaite.

One of the questions the Tribunal had to decide was whether the losses sustained by the defendants arising out of the 9/11 attack on the Twin Towers of the World Trade Center (WTC) were caused by one or more occurrences or series of occurrences "arising out of one event". This was in the context of applying policy limits and deductibles in four retrocession excess of loss reinsurances written by the claimant in favour of the defendants. The Tribunal concluded that the losses were caused by two separate occurrences arising out of separate events.

In reaching this decision the Tribunal applied the test of the "unities" (time, place, cause and intention) derived from the Dawson's Field Arbitration and as developed by Mr Justice Rix (as he was then) in Kuwait Airways Corporation v Kuwait Insurance Co SAK2. Only extracts of the Award are referred to in the appeal judgment so it is difficult to understand precisely which arguments were canvassed in front of the Tribunal and also how the Tribunal reached its views regarding the various unities.

In respect of unity of intent, referred to as the circumstances and purposes of the persons responsible, the Tribunal acknowledged that the hijackings were part of a coordinated plot but observed that it was clear from the legal authorities on similar aggregation clauses that a conspiracy or plan could not of itself constitute an occurrence or event. In respect of unity of cause, the Tribunal found there were two separate causes for the insured losses because there were two successful hijackings of two aircraft, despite these being in execution of a single "dastardly plot". In respect of unity of location, it found that while the Twin Towers were part of an overall complex the Towers were separate buildings. In respect of unity of time, it acknowledged the relative closeness in time between the commencement of each flight and the subsequent crashes. However, it was justifiable for the Tribunal to take account of the whole period of time from check-in and passenger scrutiny to the collapse of each of the Towers (not just from the time each flight took off) because it was dealing with airline and/or security company liabilities in respect of the hijacks. Moreover, the timings of the collisions...