147-NLR-NLR-V-22-AMJEE-v.-THE-QUEENSLAND-INSURANCE-CO.-LTD.pdf
( 508 )
Present: Ennis and De Sampayo JJ.
AMJEE v. THE QUEENSLAND INSURANCE CO., LTD.398—D. C. Colombo, 1J.95.
Consignment of sugar—Insurance against the perils of sift and fire, the.—
Sugar damaged by salt footer arid heat—Is damage covered by
polity f—Burden of proof.
The plaintiff insured with the defendants a consignment ofsugar against the perils of the sea, fire, and all other perils, losses,and misfortunes. When the sugar was landed in Colombo, it wasfound to be damaged by salt water and damaged by heat, so thatsome of the bags- were chaired, and the contents more or lesssolidified.
Held, that in the circumstances the onus of proof Was on thedefendant company to show that the charring and the damageby sea water was not the result of a peril of the sea or of fire againstwhich they had insured.
There was a condition of things on board which caused thecharring of the bags of sugar, but did not go to the extent of causingan actual outbreak of fire.
Held, that in the circumstances the loss, although, strictlyspeaking, not a loss by fire, was a loss ejusdum generis, and wouldcome under the general clause in the policy of insurance.
1 1 Bal. Reports 1.
1921.
1921.
Amgee v. TheQueenslandInsuranceGo., Ltd.
( 604 )
'T'HE facts appear from the judgment of the District Judge(L. Maartensz, Esq.):—
The plaintiff in this action took out an insurance policy for 9,000dollars signed by the defendant company in respect of 360 bags of whitesugar shipped at Singapore for Colombo on board the ss. Meidai Maru.The sugar was insured against, inter aUa, perils of the seas, fire, and allother perils and misfortunes,
The sugar was damaged in transit, and the plaintiff is seeking torecover the loss, Its 7,249* 60, sustained by him by reason of 'the damageto the sugar
The claim is. repudiated by the Insurance Company, and I tried thefollowing issues
Was the cargo of sugar consigned to defendant by the ss. MeidaiMaru damaged on the Voyage ?
Was the said damage cohered by the policy of insurance ?
What damage, if any, is plaintiff entitled to T
Plaintiff’s counsel stated that he relied on the port of the policyprotecting the sugar against perils of the seas, fires, and all other perilsand misfortunes. The following issues were suggested by defendant’scounsel:—
If the damage was caused by perils of the seas or fire, was it dueto any inherent vice of any part of the cargo ?
6. Was the said cargo improperly stored, if so, are the defendantsliable ?
That the cargo of sugar was damaged by heat and moisture cannotbe disputed. It was surveyed by Mr. Howard Smith, one of Lloyd'ssurveyors, who is also an assistant in the firm of Aitken, Spence & Co.,local agents of the Insurance Company.
Mr. Smith states in his report: “ I found 360 double, bags of whitesugar more or less badly stained and discoloured, some bags havingthe appearance of having been charred. The sugar in these latterbags was caked and more or less solid, whilst it was more or less moistin the remainder. A strong smell of pepper pervaded the majorityof the bags. In subsequently applying the usual test, I found evidenceof salt water. The vessel noted protest. The papers were producedfor inspection. I am of opinion that the damages to a portion ofthe above sugar was, in the first place, due to very great heat, if notactually fire, and the damage by salt water may possibly have beencaused by the use of same in either preventing a fire or quenching it.The protest states that the ss. Meidai Maru arrived in the harbourof Colombo on January 16, having experienced heavy weather and highseas between Singapore and Colombo, causing the vessel to ship waterand rendering it impossible to open the hatches.”
According to Mr. Smith, the Captain of ship note protest even if thesea is quite smooth to protect themselves against any damage to thecargo. He added that if there was a fire, it would have been noted in theprotest, and a general average declared.
The bags were charred or scorched, but there were no holes in them,so that they had not actually come in contact with fire.
In cross-examination Mr. Smith stated that the moisture might havebeen due to sweating of the sugar and the drip from the roof of thehold and the stanchions supporting the hold, the result of heat engenderedby the sugar itself. * Some pepper carried on the same ship was damaged,
( 605 )
and Mr. Smith said that the damage might have been the result of theheating of the pepper—pepper being a commodity very liable todevelop extreme heat. There is no evidence as to how the damagewas caused. The moisture might have been caused by seas shippedon board. It might have been the result of the sweating of the sugar.It might have been caused by the drip from the stanchions and roofof the hold. The charring might have been caused by the heat en-gendered by the sugar owing to inherent vice. It might have beendue to the heating of the pepper. It might have been due to heatengendered by the closing of the hold owing to heavy weather.
On the evidence I find it impossible to say that the damage wasthe result of perils of the seas, fire, or other perils, losses, and misfortunes.
I answer the first issue in the affirmative.
1021.
Atnjee v. TheQueenslandinsuranceCo., Ltd.
I answer the second issue in the negative, and dismiss plaintiff'saction, with costs.
The evidence as to damages is not satisfactory, as the plaintiff wasnot in a position to produce his books in Court.
The policy of insurance wasas follows :—
PClaims payable in Colombo,
Goods Policy.By Messrs. Aitken, Spence & Co., Ltd.
Queensland Insurance Company, Ltd.
No. 45.29,830. Whereas Ranchordass Purshotum, Esq.,
Amount insured Bs. 9,000. hereinafter termed the Assured, has re-payable at Exchange. presented to the Queensland Insurance
Company, Ltd., that he is interested in orduly authorized as Owner, Agent, orotherwise to make the Insurance herein-after mentioned and described with thesaid Company.
Now this policy of insurance witnesseth that in consideration of thepremises and of the sum of as arranged, paid, or agreed to be paid bythe said assured to the said company as a premium at and after therate of as arranged …. per cent, for such insurance, the saidQueensland Insurance Company, Ltd., does covenant with the saidassured that the said company shall be subject and liable to pay andmake good and shall be applied to pay and make good all such lossesand damages hereinafter expressed as may happen to the subject-matter of this policy, and may attach to this policy in respect of thesum of dollars Nine thousand only hereby insured, which insuranceis hereby declared to be upon A C A & Co., 360 bags white sugarwarranted with average including war risk as per clause attached inthe ship or vessel called the ss. Meidai Maru, whereof is at present♦Master (or whoever else with the approval of the said company whenpracticable shall go as Master) of the said ship or vessel lost or notlost at and from Singapore to Colombo.
And the said company does promise and agree that the insuranceaforesaid shall commence upon the said ship at and from as aforesaid,and shall continue until she Hath moored at anchor.in good safety ather place of destination, and for such period afterwards not exceedingtwenty-four hours from such mooring, and upon -the freight and goodsor merchandise on board thereof from the loading of the said goodsor merchandise on board the said ship or vessel at as aforesaid, and
( 606 )
1021.
itrkfeejf. The
Queensland
until the said goods or merchandise be discharged and safely landedat as aforesaid. Including the risk' of craft to and from the ship orvessel. In event of the goods being carried beyond their port ofdestination or transhipped, it is agreed to hold the assured covered
inturanoe uo°viunu* wo,
OO't Ltd* * ^or suo^1 deviation in terms of the policy, provided the consignee givesdue notioe in writing to the representative of the said-company at the
a port of destination of such over-carriage, and pays an extra premiuma to be arranged for such deviation.
In witness whereof, the undersigned, McAlister & Company, 1 imited,being duly authorized by the Directors of the said company and onbehalf of the said company, have hereunto s^ their hands at Singapore,this 8th day of January, One thousand Nine hundred and Nineteen.
For McAlister & Co., Ltd.,Agents, Queensland Insurance Co., Ltd.
(Signed).
Hayley, for plaintiff, appellant.
Samarawickreme (with him Kwnetnm), for defendants, res-pondents.
August 2,1921. Ennis J.—
This was an action against an Insurance Company in respect ofinjury to 360 bags of sugar on a voyage from Singapore on thess. Meidai Maru. The policy of insurance is dated May 19, 1919,and insures against perils of the seas, fire, and all other perils,losses, and misfortunes* When the sugar was landed in Colombo,it was found to be damaged by salt water and damaged by heat,so that some of the bags were charred and the contents more or lesssolidified.
At the request of the plaintiff Mr. Howard Smith held a survey.Mr. Howard Smith is Lloyd’s Agent in Colombo, and is an assistantin the Insurance Department of the Agent of the defendant companyin Colombo. He signed a certificate that he found sea waterdamage, and that some of the bags had an appearance of havingbeen charred. Mr. Howard Smith gave evidence in the case andswore to the correctness of his report. On this evidence, as to thecondition of the commodity on arrival in Colombo, the onus ofproof would be shifted on the defendant company to show thatthe oharring and the damage by sea water was not the result of aperil of the sea or of fire against which they had insured.
It appears from the evidence that the Captain of the boat did notdeclare a general average, as in all probability he would have donehad there been a fire on board and he made no mention of firein the protest which he made. The learned Judge has found thattheie can be no dispute that the oargo of sugar was damaged by
( 507 )
heat and moisture, but he oame to the conclusion that there wasno evidence as to how the damage was oaused, and therefore it
1921*
was impossible to say the damage was the result of perils of the sea, Ewg8fire, or other perils or misfortunes. He accordingly dismissed the»-4ffyee «. Theplaintiff’s claim, and the plaintiff appeals.
It appears from the evidence that alongside the sugar a shipment Oo., Ltd.of pepper was stowed. Mr. Howard Smith saw this pepper sometime after he had made his report, and he says that the pepperwas more damaged than the sugar, it was scorohed. It wouldBeem, therefore, there was a condition of things on board whichoaused the charring of the bags of sugar and scorching of the pepper,but did not go to the extent of oausing an actual outbreak of fire..
It has been held that in such oireumstanoes a loss, although, strictlyspeaking, not a loss by fire^ was a loss ejuadvm generis, and wouldcome under the general olause in the policy of insurance (The Knightof St. Michael)1
For. the respondent it was contended that the state of heat mayhave originated in the consignment of sugar owing to an inherentvice in the consignment. When, however, we find from the evidencethat some other consignment was more badly damaged from thesame cause, I would prefer to draw the inference that the state ofheat originated in that consignment rather than in the consignmentof sugar.
In the circumstances the defendant has not rebutted the presump-tion, which arises from the charring and salt water damaged stateof the goods, that the damage waB oaused from one or other of theperils insured against. I would accordingly allow the appeal.
The learned Judge has not decided the question of damages.
I would accordingly set aside the decree, and send the case backto the learned Judge to fix the amount of damage. The appellantto have costs in both Courts.
De Sampayo J.—I agree.
Set aside.
1 (1S98) Probate, p. 80.