Any consideration of the method of insuring against war and related risks must start with the F.C. & S. clause. “F. C. & S.” does not mean, as someone hazarded the guess on first being confronted with these cabalistic initials, “Free of Counsel and Solicitors”. “Fees to Counsel and Solicitors” might have been nearer the mark. “Ten infamously obscure words” was the phrase used by Lord Justice MacKinnon of the “free of capture and seizure” clause, Yorkshire Dale v. M.O.T. [1942] 1 K.B. 35 at p. 43. Certainly they have in the past spawned more Court cases than any other clause in marine insurance. Most of these cases followed the first and second world wars; not all of the decisions are readily reconcilable.

Generally, the point at issue was whether the casualty constituted a war or marine peril, and one wonders whether, in certain cases, the decisions and the sophistry displayed would have been quite the same if there had been only one policy before the Court—if the question had been whether the assured should be paid, rather than which set of underwriters should pay.

The traditional method of insuring against war risks is to cover (subject to specific exceptions) only those risks excluded from the Standard Form of English Marine Policy by the clause:—

It is to be noted that the clause only covers perils taken out of the standard form of marine policy by the F.C. & S. clause. If a peril is not already covered in the standard form, it follows that it cannot be excluded by the F.C. & S. clause or written back as positive cover by the clause itself. It is for this reason that the war risk cover goes on to add specific perils (“hostilities, warlike operations”, etc.). The Institute war clauses then exclude any loss, damage, or expense covered by the standard form of marine policy with the F.C. & S. clause and the Institute Time clauses attached. By what may appear to be a rather tortuous route “mirror” coverage is provided between marine and war.

The F.C. & S. clause now in use in both the United Kingdom and the United States has a long history; the earliest reference in the cases to an exclusion of “capture and seizure” was in Greer v. Brown (1744) and Green v. Elmslie (1792). The last important landfall in the development of the F.C. & S. clause in its present form was the decision of the House of Lords in The Coxwold (1942) 73 L1.L.Rep. 1 which concerned a ship carrying petrol for the British forces which stranded off Skye. She had been proceeding