In (1) Global Process Systems Inc (2) Global Process Systems (Asia Pacific) Sdn Bhd v Syarikat Takaful Malaysia Berhad – Lawtel 9.4.09 the Claimant insureds claimed against the Defendant insurer in respect of the loss of three legs of a jack-up rig which was being towed on a barge from Texas to Malaysia.. The question was whether the cause of the loss of the rig was inherent vice or accidental.

The Commercial Court held that to show that the loss in question was fortuitous, in the sense that it was not inevitable, represented a low hurdle for the insured. Probability, however high, did not bring a case within the ambit of inevitability. The failure of the legs as the rig was towed around the Cape was very probable, but it was not inevitable. Damage could be caused by inherent vice without it being inevitable. The exception for inherent vice was the same in the context of both carriage by sea and marine insurance. Inherent inability to withstand the ordinary incidents of the voyage was clearly an appropriate test of inherent vice.

It therefore held, on the basis of the expert evidence, that the proximate cause of the loss was inherent vice because the legs were not capable of withstanding the normal incidents of the insured voyage, including the weather reasonably to be expected.