Queensland Insurance (Fiji) Ltd v Wongs Shipping Ltd [1985] FijiLawRp 20; [1985] 31 FLR 124 (8 November 1985)

[1985] 31 FLR 124

COURT OF APPEAL OF FIJI

Civil Jurisdiction

QUEENSLAND INSURANCE (FIJI) LTD

v

WONGS SHIPPING LTD

Speight, V. P., Roper, J. A., Mishra, J. A.

Date of Hearing: 28 October 1985
Date of Judgment: 8 November 1985

Insurance – 'Time Policy' − indemnification against perils of the sea plus an 'Inchmaree' Clause − allegation of unseaworthiness − respondent claimed lack of knowledge thereof − alternatively the proximate cause was the negligence of master covered by the 'Inchmaree' Clause − evidence unchallenged that any unseaworthy condition was not the proximate cause of the loss.

K. Chauhan for the Appellant
V. Parmanadam for the Respondent

Appeal against findings by the trial Judge in the Supreme Court that vessel 'Evelyn' was not unseaworthy in the manner alleged by the appellant and that its owners had no knowledge of any defect in the vessel's equipment that would make it unseaworthy and that the stranding of the vessel referred to below occurred in circumstances that appellant was liable to indemnify the respondent for damage to the vessel also referred to below.

On 2 December 1981 the 'Evelyn' left Suva for Tavuki calling first at Vunisea thereafter proceeding to Tavuki at approximately 10.30 p.m. The night was fine. The vessel went aground near the John Wesley Bluffs. It came off on the next high tide, then proceeded to Tavuki unloaded cargo and returned to Suva. It was found there was damage to the hull. This cost $20,000 to repair.

Respondent claimed on the appellant Insurer under 'Time Policy' of Marine Insurance. The appellant refused to indemnify respondent. The learned Judge in the Supreme Court held that the appellant was liable to do so.

The policy indemnified the respondent against "perils of the sea" including covering by an "Inchmaree" clause.

The clause read:

"7. This insurance includes loss of or damage to the subject matter insured directly caused by-·

(a) Accidents in loading discharging or shifting cargo or fuel Explosions on shipboard or elsewhere Breakdown of or accident to nuclear installations or reactors on shipboard or elsewhere Bursting of boilers breakage of shafts or any latent defect in. the machinery or hull.

Neglegence of Master Officers Crew or Pilots Negligence of repairers provided such repairers are not Assured(s) hereunder

(b) Contact with aircraft Contact with any land conveyance, dock or harbour equipment or installation Earthquake, volcanic eruption or lightning