September 2, 2004 

Dear Mr. L: 

Thank you for your letter requesting an interpretation of the applicability of the 

“make available” requirement under section 103(c) of the Terrorism Risk Insurance Act1

(“TRIA”) to members of the Norwegian marine hull insurance community. In direct 

response to your inquiry, we do not believe that the “make available” requirement of 

section 103(c) of TRIA is satisfied by offering marine insurance for acts of terrorism as 

described in your letter. We note, however, that the “make available” requirement only 

applies to entities that meet the TRIA definition of “insurer”2

 and to situations that 

involve an “insured loss”3

 within the meaning of the Act. 

Background 

Your clients, Norwegian marine insurers, provide insurance against marine and 

war perils to ship owners and operators on the basis of the hull and hull war risk terms of 

coverage in the Norwegian Marine Insurance Plan of 1996 (“NMIP”), as revised and 

updated in 2003. Chapter 2 of the NMIP defines the perils insured against as “marine 

perils” and “war perils.” The scope of risks insured as “marine perils” is broadly defined 

under Section 2-8 of Chapter 2 as “all perils to which the interest may be exposed,” with 

four enumerated exceptions. The first of these exceptions is “the perils covered by an 

insurance against war perils” as defined in Section 2-9 of Chapter 2. Section 2-9 of 

Chapter 2 defines “insurance against war perils” to include “riots, strikes, lockouts 

sabotage, acts of terrorism and the like.” (Emphasis supplied). Thus, Section 2-8 

coverage is broad-based but excludes the terrorism risk, while Section 2-9 coverage is 

narrow but specifically includes the terrorism risk. 

Section 2-10 of Chapter 2 of the NMIP explicitly provides that “unless otherwise 

agreed, the insurance [under the NMIP] covers only marine perils.” Thus, unless ship 

owners affirmatively specify their desire for “war perils” coverage under Section 2-9, the 

Section 2-8 coverage for “marine perils” will be issued. In follow-up discussions with 

your firm, we were told that it is commonly understood by Norwegian ship owners that 

“war peril” coverage under the NMIP must be requested by the ship owner. Your firm 

also indicated that “marine peril” and “war peril” coverage under the NMIP are usually 

written by separate insurers. Insurers who write “marine peril” coverage under Section 2-

8 usually do not write “war peril” coverage under section 2-9, and vice versa. 

 

1

 Pub. L. 107-297, 116 Stat. 2322, 15 U.S.C. §6701 note. 

2 Id. at section 102(6)(A). There is no information in the letter indicating whether Norwegian Hull Insurers 

meet any of the five categories of “insurer” in TRIA section 102(6)(A) and §50.5(f)(1)(i) of Treasury’s 

regulations. 

3 Id. at section 102(5). 
Make Available 

You seek an interpretation from this office of whether the “make available” 

requirement of TRIA section 103(c) can be satisfied by offering insurance on the basis of 

the NMIP. Section 50.23 in the TRIA regulations provides that an insurer “must offer 

coverage for insured losses resulting from an act of terrorism that does not differ 

materially from the terms, amounts and other coverage limitations (including deductibles) 

applicable to losses from other perils.” This means an “offer” of coverage -- something 

more than simply disclosing that coverage is available for purchase.4

 We envision that an 

“offer” of coverage that satisfies the TRIA “make available” requirement requires an 

affirmative act on the part of an insurer; passive reference to the availability of coverage 

is not sufficient. 

With regard to the NMIP, you stated that Norwegian ship owners wishing to 

obtain “war peril” coverage must explicitly express their desire for such coverage at the 

time insurance is sought. If they do not expressly request coverage, section 2-10 of the 

NMIP acts to limit coverage for “marine perils” only. Until the ship owner requests “war 

peril” coverage, an insurer does not “offer” coverage within the meaning of our 

regulations. We do not believe this meets the “make available” requirement of TRIA

section 103(c) and §50.21 of our regulations. Insurers who write marine insurance under 

the NMIP must make an affirmative offer of coverage to ship owners at the time an 

inquiry for insurance is made. The passive availability of “war peril” coverage in the 

NMIP is not an offer of coverage as contemplated by §50.21 of our regulations. 

Thank you for your inquiry. We hope this explanation of TRIA and its “make 

available” requirement are helpful to you. For additional information or if you have other 

questions that need to be addressed, please write or call the Program office at 202-622-

6770. 

* * * 

This response addresses the application of the Act and regulations to the specific 

situation set forth in your request, as you have represented the facts to Treasury. If there 

is a change in any of the facts or assumptions presented, and such facts or assumptions 

are material to a conclusion presented in this response, then the requestor may not rely on 

that conclusion generally or as support for any proposed or subsequent activity. This 

response is provided by the Terrorism Risk Insurance Program as a means of stating its 

current interpretation of the Act and regulations. The Program may revise or revoke this 

interpretation upon its own initiative or upon the enactment of amendments to the Act or 

regulations. 

TERRORISM RISK INSURANCE PROGRAM

Jeffrey S. Bragg 

Executive Director 

 

4 68 F.R. 59725 (October 17, 2003). 

2