Mysterious disappearance clauses

Under an all risks policy the assured is able to recover by proving a fortuitous loss. Under a mysterious disappearance exception, the insurers are discharged from liability if they can prove that the loss was mysterious. How are these concepts to be reconciled? Gloster J in AXL Resources Ltd v Antares Underwriting Services Ltd [2010] EWHC 3244 (Comm) was asked to consider the matter.

AXL: the facts

The assured, AXL, a company incorporated in the Bahamas, carried on the business of metal trading. It was insured by the defendants under a Lloyd’s Marine Open Cargo Policy. The policy was ‘all risks’ but contained what is apparently a fairly standard clause, providing: ‘Excluding Mysterious Disappearance and Stocktaking Losses’.