Amlin Corporate Member Ltd (on its own behalf and on behalf of all other members of Syndicate 2001 at Lloyd's in relation to policy reference B0738MC000720B) and Others v Oriental Assurance Corporation
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Davis,The Master of the Rolls |
| Judgment Date | 07 August 2014 |
| Neutral Citation | [2014] EWCA Civ 1135 |
| Docket Number | Case No: A3/2013/2395 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 August 2014 |
[2014] EWCA Civ 1135
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, COMMERCIAL COURT
MR JUSTICE FIELD
2010 Folio 1383
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Davis
and
Lady Justice Gloster
Case No: A3/2013/2395
Mr Roger Ter Haar QC and Ms Caroline McColgan (instructed by Browne Jacobson LLP) for the Appellant
Mr Peter MacDonald Eggers QC (instructed by Norton Rose Fulbright LLP) for the Respondents
Hearing dates: Monday 17 th March 2014
Tuesday 18 th March 2014
Introduction
On 18 March 2014 this court dismissed the appeal by the defendant, Oriental Assurance Company ("Oriental"), against the judgment of Field J dated 31 July 2013. By that judgment Field J granted the claimants, Amlin Corporate Member Limited and other syndicates at Lloyd's which subscribed to policy reference B0738MCOOO720B ("Reinsurers"), a declaration to the effect that, by reason of a breach of a typhoon warranty in a reinsurance contract between Reinsurers and Oriental, Reinsurers are not liable to indemnify Oriental in respect of cargo liabilities relating to the loss of the vessel MV Princess of the Stars ("the Vessel"), off the coast of Romblon in the Philippines, on 21 June 2008, as a result of its encounter with Typhoon Frank.
These are my reasons as to why I considered it appropriate to dismiss the appeal.
The issues in the case relate to the construction of the relevant typhoon warranty clause and whether, in the events which happened, Oriental was in breach of warranty.
Background facts
Oriental is an insurance company established in the Philippines which insured the owner of the Vessel, Sulpicio Lines Inc ("Sulpicio"), a Philippine shipping company, in respect of its liability in the period 31 December 2007 to 31 December 2008 for loss of or damage to cargo.
The cover provided under the policy of insurance as between Oriental and Sulpicio ("the Original Policy") was expressed to be "within Philippine Territorial Limits" and was in respect of 22 scheduled vessels. The Original Policy contained a typhoon warranty clause in the following terms:
"TYPHOON WARRANTY CLAUSE
Notwithstanding anything contained in the Policy or Clauses attached hereto, it is expressly warranted that the Vessel carrying subject shipment shall not sail or put out of sheltered Port when there is a typhoon or strom [sic-should be "storm"] warning at that port nor when her destination or intended route may be within the possible path of a typhoon or storm announced at port or [sic — should be "of"] sailing, port of destination or any intervening point. Violation of this warranty shall render this policy "VOID".
However, should the vessel have sailed out of port prior to there being such a warning, this warranty, only in so far as the particular voyage is concerned, shall not apply but shall be immediately reinstated upon arrival at safe port."
The Original Policy incorporated wordings which are expressed to be governed by English law. Although Oriental argued that the Original Policy was governed by Philippine law, it was common ground that there is no material difference between English law and Philippine law with respect to policy interpretation and the effect of a breach of warranty. In any event, there was no evidence of Philippine law before the court in relation to these aspects.
Oriental reinsured the Original Policy with Reinsurers ("the Reinsurance Policy") subject to an Annual Aggregate Limit of
"PHP 450,000,000 covering all vessels, excess of PHP 50,000,000 any one accident or occurrence each vessel each section inclusive of original policy deductible of PHP 2,500,000 anyone [sic] accident or occurrence each vessel."
The Reinsurance Policy, which is governed by English law, contained a "follow the settlements" condition in the following terms:
"To follow all terms, conditions and settlements of the original policy issued by the Reinsured to the Insured, for the period specified herein, in respect of sums and interests hereby insured."
The Reinsurance Policy contained a typhoon warranty in what was for all relevant purposes identical terms to the typhoon warranty clause in the Original Policy, save that the second paragraph (starting "However ….") had been omitted. The clause read:
"Notwithstanding anything contained in this policy or clauses attached hereto, it is expressly warranted that the carrying vessel shall not sail or put out of Sheltered Port when there is a typhoon or storm warning at that port nor when her destination or intended route may be within the possible path of the typhoon or storm announced at the port of sailing, port of destination or any intervening point. Violation of this warranty shall render this policy void."
The Reinsurance Policy also contained a claims control clause in the following terms:
"In the event of a claim arising under the Original Policy the Reassured shall give immediate notice thereof to the Underwriters and the Reassured shall not make any settlement of any claim without the consent of Underwriters hereunder."
As Field J described in paragraphs 6 and 7 of his judgment, one of the scheduled vessels under the Original Policy was the Vessel, a Ro-Ro vehicle and passenger ferry of 23,824 gross tonnage built in 1984. At 20:04 on 20 June 2008 the Vessel left Manila on a scheduled trip to Cebu, an island to the South East. The cargo had a total weight of 2,978 tons and included lorries and containers stowed in the cargo deck and cars and SUVs stowed on the car deck. There were 713 passengers on board and 138 crew. At about 09:00 on 21 June 2008, the Vessel sailed into the eye of Typhoon Frank, about 8 nautical miles from Aklan Point on Panay Island. By 11:00 she was listing 40° to port and had become unmanoeuvrable. The wind was very strong and the waves 20 foot high. At around 12:00 the Master, Captain Florencio Marimon ("the Master"), gave the order to abandon ship and shortly thereafter the Vessel capsized South West of Sitio Cabitangahan, Brgy Taclobo, Sibuyan. Tragically, over 800 lives were lost and only 32 of those on board survived. The Master was among those who died. I emphasise that the policies the subject matter of this case only relate to cargo claims and do not relate to any claims for loss of life or loss of the Vessel.
As Field J described in paragraph 8 of his judgment (which I gratefully adopt), there had been a number of bulletins in relation to the development of Typhoon Frank. It had started on 18 June 2008 as a low pressure area at about 830 kms East of Mindanao. At 17:00 that day the Philippine Atmospheric, Geophysical and Astronomical Services Administration ("PAGASA") reported in a Severe Weather Bulletin ("SWB") No 1 that the low pressure area had developed into a tropical depression named "Frank" whose centre at 16:00 was estimated to be 670 kms East Northeast of Hinatuan Surigao del Sur. The forecast movement was West Northwest at 15 kph. At 23:00 on 19 June 2008, PAGASA reported in SWB No 5 that, as at 22:00 that day, the centre of Frank was estimated to be 330 kms East Southeast of Guiuan, Eastern Samar, with maximum winds of 85 kph and forecast to move Northwest at 15 kph. On 20 June 2008, PAGASA issued SWB No 6 and SWB No 7 at 04:00 and 11:00 respectively, giving Frank's estimated location, the strength of the wind and stating that it was forecast to move West Northwest. At 16:45 on 20 June 2008 PAGASA issued SWB No 8. This contained a Public Storm Warning Signal ("PSWS") No 1 in relation to Manila. A copy of SWB No 8 was in the Master's hands before the Vessel departed for Cebu at 20:04. It read as follows:
"W E A T H E R R E P O R T
SEVERE WEATHER BULLETIN NO.8
TYPHOON FRANK ISSUED AT 445PM JUNE 20/2008
TYPHOON FRANK HAS MADE LANDFALL OVER EASTERN SAMAR AND IS NOW HEADING TOWARDS BICOL REGION.
AT 4PM TODAY THE EYE OF TYPHOON WAS LOCATED AT THE VICINITY OF WESTERN SAMAR OR 50KMS SE OF CATBALOGAN CITY COORDINATE 11.5N 125.1E WITH MAX SUSTAINED WINDS OF 140KPH NEAR THE CENTER AND GUSTINESS OF UP TO 170KPH. IT IS FORECAST TO MOVE WNW AT 19KPH.
FORECAST POSITION:
TYPHOON FRANK IS EXPECTED TO CROSS SAMAR TODAY AND WILL BE OVER CAMARINES NORTE BY TOMORROW AFTERNOON. BY SUNDAY AFTERNOON IT WILL BE AT 50KMS NW OF BALER AURORA AND AT 30KMS NW OF LAOAG CITY BY MONDAY MORNING.
PSWS NO.3 — OVER CAMARINES NORTE, CAMARINES SUR, ALBAY, INCLUDING BURIAS ISLAND SORSOGON, CATANDUANES, MASBATE, SAMAR PROVINCES, LEYTE, INCLUDING BILIRAN ISLAND.
PSWS NO.2 — OVER QUEZON, INCLUDING POLILIO, MARINDUQUE,...
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