JUDGMENT

David Wong Dak Wah J:

The Proceedings

[1] The plaintiff's claim is for loss of goods in the sum of RM396,000 under a Marine Cargo Policy taken out with the defendant which disclaims liability on the ground that the plaintiff had breached certain conditions of the policy rendering it unenforceable.

Undisputed Facts

[2] The defendant by a Marine Cargo Policy (the policy) provided insurance coverage in respect of goods valued at RM400,000 carried on board motor vessel M.V "Kuasa Jaya No.1" (the vessel). On at or about 23 September 2003, the plaintiff alleged that the vessel carrying 428.4804 cubic meters of sawn timbers (goods) was sailing from Pontianak, Kalimantan, Indonesia and heading towards Sibu, Sarawak, Borneo before she went missing. It was also alleged that on 30 November 2003, the Indonesia Navy located the vessel abandoned in the Java Sea near Surabaya in Indonesia. Attempts to locate the crew and the goods proved futile. As a result of the loss, the plaintiff made a claim under the policy which was rejected by the defendant for breaches of warranties by the plaintiff.

Issues

[3] Having read the submissions of counsels and the evidence adduced, it is my view that the following issues require my deliberation:

1. Whether the vessel is a classified vessel as set out in Institute Classification Clause 1 August 1997 and if not what is the consequence in respect of the liability of the defendant under the policy?

2. Whether the goods were legally imported?

3. Whether the vessel was rendered unseaworthy on the grounds that:

a: The vessel did not have a full complement of qualified crew.

b: By sailing beyond the plying limits imposed by the government.

c: Mr. Lau Kah Ding is a common director of the plaintiff and Perkapalan Kuasa Sdn. Bhd. the company owning the vessel and would be privy to the acts of the ship-owner and the plaintiff's breaches in:

i. special condition (iii)(a);

ii. clause 5 of the Institute Cargo cl. (A) 1 January 1982;

iii. s. 39 of the Marine Insurance Act 1906

[4] Before I consider the counsels' submissions on the issues let me say that I agree with Mr. George Lim, counsel for the plaintiff, that the policy is an all risk policy as can be gathered from cl. 1 which reads as follows:

Clause 1. This insurance covers all risks of loss of or damage to the subject-matter insured except as provided in Clauses 4, 5, 6 and 7 below.

[5] An 'all risk' policy is defined in Marine Policy, J.K Goodacre on "Marine Insurance" at p. 123 as follows:

Under an "all risk" cover, the class of insured perils is so wide that an assured is considered to have discharged his burden of proof by showing that the cause of loss was one insured against, although he is unable to point to a particular cause, provided it has occurred during the currency of the Policy.

The damage proved was such as did not occur, and could not be expected to occur, in the course of a normal transit. The inference remains that it was due to some abnormal circumstance, some accident or casualty. We are, of course, to give effect to the rule that the plaintiff must establish his case, that he must show that the loss comes within the terms of his policies; but where all risks are covered by the Policy and not merely risks of a specified class or classes, the plaintiff discharges his special onus when he has proved that the loss was caused by some event covered by the general expression, and he is not bound to go further and prove the exact nature of the accident or casualty which, in fact, occasioned his loss.

[7] In the case at hand, both sides concede that there is no proof as to the actual cause of loss. The only inference could be that the crew had pilfered the goods and abandoned the vessel. Such risk of loss in my view is covered by an all risk policy unless it is excluded in the exclusion clauses and on the authority of B