CA-2024-000950 - [2025] EWCA Civ 1019

Ms Philippa Hopkins KC for the appellant insurers criticised the judge’s approach, submitting that there was no good reason to think that exclusion 1(e) in the American clauses was intended to achieve the same result as the equivalent English clause. There were material differences between the two clauses. Rather, the same considerations which had caused the term ‘customs regulations’ to be construed broadly in the English clause were equally applicable to the same term in the American clause, but the latter was then broadened further by the addition of the ‘similar’ wording, which must be given some meaning, whereas the judge’s approach had effectively made it redundant.

Ms Hopkins advanced two interpretations of exclusion 1(e). Her primary case, which she termed ‘the wider construction’, was that the exclusion excludes all detention under ordinary peacetime laws. On this interpretation the effect of the ‘and similar’ wording is that any regulation which is not concerned with hostilities is similar to a customs or quarantine regulation. She submitted that customs and quarantine regulations are merely examples of the kind of regulation dealt with by the exclusion.

Ms Hopkins’ alternative submission, ‘the narrower construction’, invoked two maxims known to lawyers and students of Latin as ‘ejusdem generis’ and ‘noscitur a sociis’. These were explained by the Divisional Court in Financial Conduct Authority v Arch Insurance (UK) Ltd [2020] EWHC 2448 (Comm), [2020] Lloyd’s IR Rep 527:

‘67. In respect of certain policies, reference was made by the parties to the maxims or canons of construction ejusdem generis (of the same kind) and noscitur a sociis (known by its associates). These are specific applications of the primary principle, which is to read the words of a particular provision in context: see Colinvaux’s Law of Insurance (12th ed) at §3-055.

68.

For instance, if a clause in an insurance policy covers, or excludes, the risk of damage to a number of items, it is likely that the words used denote things of the same genus (ejusdem generis), and each word can take its meaning from the words with which it is linked or surrounded (noscitur a sociis). In Watchorn v Langford (1813) 170 ER 1432, the insurance policy covered “stock in trade, household furniture, linen, wearing apparel and plate”. When the insured’s linen drapery goods were destroyed in a fire, the House of Lords held that the policy did not respond because the reference to “linen” must have been to household linen or linen in clothing, rather than drapery.’

Ms Hopkins submitted that both customs regulations and quarantine regulations are concerned with state sovereignty or security, and in particular with controlling the introduction of people or things into a state or its territorial waters – for shorthand, they are concerned with clearances. Thus customs regulations provide that goods cannot be imported, either at all or without permission, while quarantine regulations prohibit entry or prohibit departure without clearance from the state in question. Accordingly Ms Hopkins advanced two versions of this ‘narrower interpretation’. The first was that the ‘similar’ wording should be interpreted as covering any exercise by a state of control over its territory, including its territorial waters. The second was that it covers any regulation dealing with permission to enter or leave a state or its territorial waters.