Esufali & Co. V. Samarang Sea And Fire Insurance Company

Present: Ennis A. C. J. and De Sampayo J.

ESUFALI & CO. v. SAMARANG SEA AND

FIRE INSURANCE COMPANY.

271-D. C, Colombo, 9, 771.

Marine insurance-Perils of the sea-Certificate of damage-Condition precedent to the right to recover claim-Evidence of previous claim -Ordinance No. 14 of 1895, s. 15.

Where a policy of marine insurance contained a clause to the following effect: -"In case of damage the agents of the company must be applied to for a certificate, and no claim will be admitted without their certificate."

Held, that it was a condition precedent to the recovery of a claim under the policy that such a certificate should be obtained.

Evidence that, on a previous occasion, on a claim preferred by the plaintiff in respect of another consignment of goods said to have been damaged by sea water, it was found by Court that the goods had been wilfully damaged by the plaintiff is admissible.

THIS was an action against an Insurance Company to recover a sum of Rs. 18, 477. 65 on a policy of insurance relating to 165 bags of coffee shipped by the Liangui Trading Company to the plaintiff from Singapore. The ship arrived on August 23, 1922. The coffee was landed on August 23 and 24, and stored in the warehouse of the Ceylon Wharfage Company, Ltd. On August 28 the plaintiff transferred the coffee to a Government warehouse for transhipment. On August 31 the plaintiff, without any notice to the defendant company or its settling agents in Colombo, caused the goods to be surveyed by Mr. Howard Smith. On September 4 he sent to the settling agents of the defendant company a copy of the survey report, and made a claim for Rs. 12, 333. 32, being the value of two-thirds of the coffee, which the surveyor was of opinion had been damaged by salt water. The company declined to pay the claim, as the bill of lading stated that the coffee had been shipped in apparent good order and condition, and as the boat notes issued by the Wharfage Company, when the goods left the ship's hold, showed that only two bags had stains, the contention being that the documents showed that the damage had occurred after the goods had left the ship's side, and that under the terms of the policy the company's liability ceased when the goods left the ship. By its answer the defendant company, for the first time, maintained further that the plaintiff could not maintain the claim in the absence of a certificate in terms of the following clause in the policy: "In case of damage Messrs. The South British Insurance Company, Ltd. must be applied to for a certificate, and no claim will be admitted

without their certificate. " At the trial evidence was led by defendant company that in connection with another shipment of sugar covered by a policy with another company, it was found that the plaintiff had caused the cargo to be wilfully damaged by sea-water after it had been landed on shore. The learned District Judge gave judgment for the plaintiff, and the defendant company appealed.

Samarawickreme (with him N. K. Choksy), for defendant, appellant. -The District Judge should not have admitted the bill of lading on its mere production as evidence against the defendant company as to the condition of the goods when shipped at Singapore. It could be evidence only as between the parties to it, and not against a third party (Arnold's Marine Insurance, EE, 1279 and 12S2; Scrutton on Bills of Lading, Article 52).

Ennis A. C. J. -It may be prima facie evidence, although not conclusive.

Samarawickreme. - Assuming that it is so, the boat notes are stronger proof of the condition of the goods when delivered from the ship except for two bags. The plaintiff has failed to discharge the onus on him to prove that the damage by salt water was caused by a peril of the sea. There is also clear evidence of the untrustworthy character of the plaintiff.

Ennis A. C. J. -How is the evidence of a

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