Nathan & Co. v. Burma Fire and Marine Insurance Co., Ltd.
Present: Drieberg and Akbar JJ.
NATHAN & CO. v. BURMA FIRE AND MARINEINSURANCE CO., LTD.
42—D. C. Colombo, 43,955
Marine insurance—Policy to cover risk of particular voyage—Risks of tran-shipment not covered—Policy warranted free from particular average—
Effect of special clause.
A Marine Insurance policy covered the risk of a voyage from “ Colomboto Vizagapatam including all risk of crafts and boats to and from theship or vessel.”
The policy was warranted free from particular average, but therewas a special clause extending the liability of the insurers in the case oftranshipment to partial loss.
Held, that the policy did not .cover risks in transhipment.
Held, further, the clause referred to applies only where transhipmenthas become necessary by a peril insured against.
HE plaintiffs brought this action against the defendant Insurance
Company, to recover damages sustained by the loss of a part of ashipment of copper wire which was lost in transhipment at Cocanada,an intermediate port. The risk covered by the policy of insurancereferred to a voyage from Colombo to Vizagapatam on the ss. “ Gharinda ”and included all risk of craft and boats to and from the ship or vessel.
The learned District Judge held that the defendant company was notliable for loss sustained in the course of transhipment and dismissed theplaintiffs’ action.
Nadar ajah for plaintiffs, appellants.—The plaintiffs are entitled torecover the money as the defendants had insured the goods until thearrival of the ship at Vizagapatam. The risks mentioned in the bodyof the policy and in the marginal notes included all risk of craft andbpats to and from the ship during the voyage. The includes all lossesincurred in transhipment. Even if this risk is not specifically mentionedin the policy, any loss is covered by marginal note 5. According to thisthe company is still liable even though there is no mention of tranship-ment in the body of the policy.
Garvin (with him S. Alles), for defendant, respondent.—The plaintiff isnot entitled to the money as the goods were insured for the voyage fromColombo to Vizagapatam and against incidental risks on lighters to andfrom the boat at these two ports only. As the goods were lost in thecourse of transhipment into lighters at Cocanada, the company’s liabilityended at the time the goods left the “ Gharinda ” at this port. Theremust be an express stipulation to cover the risks of transhipment. Ifthere is no such express stipulation, the company will be liable for atranshipment of necessity only. Transhipment at Cocanada is notincidental to the voyage from Colombo to Vizagapatam.
Where the printed and the written parts of a policy are at variancegreater weight must be attached to the written part as this gives the realintentions of the contracting parties. See Dudgeon v. Pembroke.1
■ (1877) L. R. 2 (A. C.) 284.
DRIEBERG J.—Nathan & Co. v. Burma Fire and Marine Insurance Co. Ltd. 163
The policy being an F. P. I. policy the company would only be liablefor a total loss. Marginal clause 5 is quite inconsistent with the terms ofan F. P. I. policy as it would make the company liable for even a partialloss.
February 8, 1933. Driebehg J.—
The appellants brought this action to recover from the insurers, therespondents, damages sustained by the loss of a part of a shipment ofcopper wire which was lost in transhipment at Cocanada, an intermediateport. The risk insured so far as it appears in the body of the policy andin the typed matter inserted was at and from Colombo to Vizagapatamon the ss. “ Gharinda ” and included all risk of craft and boats to andfrom the ship. The policy was warranted free'from particular average.So far as this goes there is no room for doubt. The words “ all risk ofcraft until the goods are discharged and safely landed ” do not coverrisks of transhipment (Houlder Brothers v. Merchant Marine InsuranceCompany*). An express stipulation is needed to cover risks in tranship-ment. Where there is no such stipulation the insurer is only liable wheretranshipment becomes necessary as a result of a risk covered by thepolicy—section 59, Marine Insurance Act, 1906. Unless there is anexpress stipulation regarding transhipment or unless transhipment isnecessitated by a peril insured against, it amounts to an abandonmentof the insured voyage and the insurers are freed from liability. It is notsuggested that transhipment at Cocanada is an incident of a voyage fromColombo known to and contemplated by the parties.
The policy being warranted free from particular average the insurerswould only be liable for a total loss of the subject matter of the insurance.The consignment consisted of 7 bags and 47 bundles of copper wire andof these 7 bags are said to have been lost in transhipment at Cocanada.In the terms of the policy set out above the insurers would not be liablefor this loss.
It was sought however to make them liable by reason of certain marginalclauses on the policy which are as follows :—
“No. 5. Underwriters, not withstanding this warranty, to pay forany loss or damage caused by fire or by collision with any other shipor craft, and any special charges for warehouse rent, reshipping orforwarding, for which they would otherwise be liable. Also to pay theinsured value of any package or packages which may be totally lost intranshipment.”
The appellants claim that this has the effect of extending the policy torisks of transhipment. The written words in this policy so far as isnecessary to note in this connection are an insurance on the goods in the“Gharinda” on this yoyage “from Colombo to Vizagapatam including allrisk of craft and boats to and from the ship or vessel ”. Can this extendthe insurance to risks in another craft and at another port ? It is wellsettled that in cases of inconsistency between the printed and the writtenmatter in a policy greater weight must be given to the latter for the wordsin it are the language and terms selected by the parties for the expressionof their meaning Joyce v. Realm Marine Insurance Company*). In
* (1886) 17 Q. B. D. 354.* (187S) L. R. 7 Q. B. 580.
DRDSBERG J.—Fernando v. Fernanda.
Dudgeon v. Pembroke Lord Penzance said : “ The practice of mercantilemen of writing into their printed forms the particular terms by whichthey desire to describe and limit the risk intended to be insured against,without striking out the printed words which may be applicable to alarger or different contract, is too well ,known, and has been too constantlyrecognised in courts of law, to permit of any such conclusion
The marginal clauses 4 and 5 deal only with the warranty of free fromparticular average and in no way affect the contract regarding the con-ditions of transport which was the subject of agreement. Both clausesintroduce certain relaxations in the operation of the warranty whichwould otherwise make the insurers liable only in the event of a totalloss.
– Clause 4 provides that when the vessel or craft is stranded, sunk, orburnt, each craft or lighter is to be determined a separate insurance.The second part of clause 5 on which the appellants rely extends theliability of the insurers in the case of transhipment to partial loss, whereasotherwise they would be liable only for a total loss but this does notextend their liability to losses in all cases of transhipment but appliesonly where they are liable under their contract, that is to say, when thetranshipment is rendered necessary by a peril insured against.
The appeal is dismissed with costs.
Akbar J.—I agree.