Lord Justice Luxmoore:-

On 13th November 1936, the appellant entered into a contract of insurance against loss or damage by fire with the respondent company in respect of a stock of merchandise deposited in a warehouse situate in the commercial centre, Jaffa. The terms of the contract are embodied in a policy of insurance issued by the respondent company to the appellant. The only condition material to be considered in this appeal is condition 6. It is in the following terms:

This insurance does not cover any loss or damage which either in origin or extent is directly or indirectly, proximately or remotely occasioned by or contributed to by any of the following occurrences or which either in origin or extent directly or indirectly, proximately or remotely arises out of or in connection with any of such occurrences, namely:-

(1) Earthquake, volcanic eruption, typhoon, hurricane, tornado, cyclone or other convulsion of nature or atmospheric disturbance.

(2) War, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not) mutiny, riot, civil commotion, insurrection, rebellion, revolution, conspiracy, military, naval, or usurped power, martial law or state of siege or any of the events or causes which determine the proclamation or maintenance of martial law or state of siege.

Any loss or damage happening during the existence of abnormal conditions, whether physical or otherwise directly or indirectly, proximately or remotely occasioned by or contributed to by or arising out of or in connection with any of the said occurrences shall be deemed to be loss or damage which is not covered by this insurance except to the extent that the insured shall prove that such loss or damage happened independently of the existence of such abnormal conditions.

In any action, suit or other proceeding where the company alleges that by reason of the provisions of this condition any loss or damage is not covered by this insurance the burden of proving that such loss or damage is covered shall be upon the insured.

On 14th December 1936 a fire occurred in the warehouse containing the insured stock and damage was caused thereto to an extent which was subsequently fixed by agreement between the parties at £P. 1900. The appellant claimed payment of this sum from the respondent company but the latter refused to pay alleging that the appellant's claim was not covered by the policy because one or other of the occurrences specified in sub-cl. 2 of condition 6 existed at the time when the fire occurred. On 30th March 1937 the appellant instituted proceedings against the respondent company in the District Court of Jaffa claiming payment by the respondent company of the sum of £P. 1900 with interest and costs. In the course of these proceedings, a preliminary question was raised for the determination of the District Court, viz., whether the onus of proving the existence of one or other of the occurrences specified in sub-cl. 2 of condition 6 of the policy lay on the appellant or on the respondent company. On 27th January 1938, the District Court held that the onus of proof was on the respondent company. As the result of this ruling when the action subsequently came on for hearing on 1st June 1938, counsel for the respondent company called as a witness on behalf of that company the Assistant District Superintendent of Police at Telaviv. No other witness was called either on behalf of the respondent company or of the appellant and after hearing argument by counsel on behalf of both parties the District Court reserved judgment. On 16th June 1938, the District Court ordered the respondent company to pay to the appellant the sum of £P. 1900, interest and costs.

The basis of this decision, as appears from the written judgment of the District Court is that the respondent company had not discharged the onus of proving that abnormal conditions existed at the date of the fire in the area where the warehouse was situate, the Court holding that t