Bayview Motors Ltd v Mitsui Marine and Fire Insurance Company Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice David Steel |
| Judgment Date | 23 January 2002 |
| Neutral Citation | [2002] EWHC 21 (Comm) |
| Docket Number | Case No: 2000/1132 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 23 January 2002 |
[2002] EWHC 21 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
The Honourable Mr Justice David Steel
Case No: 2000/1132
MICHAEL NOLAN (instructed by SWINNERTONS for the CLAIMANTS)
S.J. PHILLIPS (instructed by WALTONS & MORSE for the DEFENDANTS)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice David Steel
Introduction
The claimants bring a claim under two "all risks" policies of insurance, dated the 10 th July 1997 and the 8th August 1997, subscribed by the defendants, for losses suffered as a result of the loss of two shipments of motor vehicles which had been shipped from Japan to the Dominican Republic in July and August 1997 for onward carriage to the Turks and Caicos Islands. The claimants contend that the vehicles were stolen or otherwise taken without any legal justification by employees of the Dominican customs after discharge from the vessels in Santo Domingo. The claimants put forward a claim amounting to some US$ 174,747 including a claim for $4,500 for expenses incurred in trying to minimise their loss.
It is the defendants' case that the cars were "confiscated" by the Dominican customs authority because, in purported contravention of Dominican law, the cars had not been declared for transhipment at their respective loading ports. As a consequence, the defendants contend that the loss was caused by "seizure", an excluded or excepted peril under the terms of the insurance cover.
It is also contended that the loss was proximately caused by the claimants' failure to take reasonable steps to avert or minimise their loss, in particular by ensuring that their rights against the Dominican customs were properly preserved by seeking legal advice or otherwise pursuing legal proceedings.
The background
The claimants are dealers in motor vehicles in Providenciales in the Turks and Caicos Islands. In 1997, they bought two consignments, each of six vehicles, from Toyota Tsusho Corporation. The terms of the contracts of sale both referred correctly to the destination of goods being the Turks and Caicos Islands but all the vehicles were in fact sold CIF Santa Domingo in the Dominican Republic, payment being made by letter of credit against presentation of documents.
The first consignment was insured under a contract of insurance contained in a marine cargo policy dated 10th July 1997 by which the defendants had agreed to insure the six Toyota vehicles against all risks, for a voyage on board the "Topaz Ace" from Yokohama, Japan to Santo Domingo, warehouse to warehouse in the amount of $76,615.00. The second consignment was insured under a contract contained in a marine cargo policy dated 8th August 1997 by which the defendants agreed to insure the second set of six Toyota vehicles against all risks for a voyage on board the "Hojin" from Nagoya, Japan to Santa Domingo, warehouse to warehouse in the amount of $93,632.00. In the case of both policies, the named assured was the seller, Toyota.
Both policies incorporated the 1/1/63 version of the Institute Cargo Clauses which provide, inter alia, as follows:
"1. This insurance attaches from the time the goods leave the warehouse or place of storage at the place named in the policy for the commencement of the transit, continues during the ordinary course of transit and terminates either on delivery:
a) to the Consignees' or other final warehouse or place of storage at the destination named in the policy;
b) to any other warehouse or place of storage, whether prior to or at the destination named in the policy which the Assured elect to use either
(1) or for storage other than in the ordinary course of transit;
(2) for allocation or distribution; or
c) on the expiry of 60 days after completion of discharge overside of the goods hereby insured from the overseas vessel at the final port of discharge whichever shall first occur…
If after discharge overside from the overseas vessel at the final port of discharge, but prior to termination of this insurance the goods are to be forwarded to a destination other than that to which they are insured hereunder, this insurance whilst remaining subject to termination as provided for above, shall not extend beyond the commencement of transit to such destination.
5. This insurance is against all risks of loss or damage to the subject-matter insured but shall in no case be deemed to extend to cover loss damage or expense proximately caused by delay or inherent vice or nature of the subject-matter insured ….
9. It is the duty of the Assured and their agents, in all cases, to take such measures as may be reasonable for the purpose of averting or minimising a loss and to ensure that all rights against carriers, bailees or other third parties are properly preserved and exercised.
12. Warranted free of capture, seizure, arrest, restraint or detainment and the consequences thereof or of any attempt thereat…."
The first consignment.
The claimants' previous practice had been to import vehicles from Japan via Bermuda. But in about March 1997, a company called Cargo Express, being the local representative of the freight forwarding company used by the claimants, Tropical Shipping, offered to arrange the importation of vehicles via Santo Domingo. Attracted by the prospect of lower costs of importation, the claimants decided to undertake two trial runs on the new route.
The first consignment of vehicles arrived at Santo Domingo on 11th August, 1997 on board the vessel "Topaz Ace". Neither the bill of lading nor the cargo manifest mentioned the fact that they were intended for shipment on to the Turks and Caicos albeit the bill named the claimants as the notify party and gave their Turks and Caicos address. The significance of this was that by virtue of Article 135 of the Dominican Customs Regulations No. 1469 of the 30th October 1943:—
"The transit of goods to foreign ports will be allowed, provided that such statement is made at the port of origin, and, in the case of emergency, by means of a special request upon the arrival of the goods at a Dominican port."
Article 138 of the same Regulations provided that, if the cargo was not transhipped 60 days after its arrival, 15 days was available to opt for its re-shipment or a declaration for local consumption, except in the case of a properly justifiable force majeure.
On 13th August 1997, two days after discharge, Schad Inc., acting as local agents for the claimants, wrote to the Customs collector of the Dominican Port of Authority at Santo Domingo requesting correction of the cargo manifest so as to record (in addition to the chassis numbers) that the "merchandise in international transit to Providenciales". The same day, Tropical Shipping wrote to the customs collector at the port requesting delivery of the six vehicles with a view to their being shipped on board "Tropic Isle" on the following Friday, 15th August from Puerto Plata to their final destination in the Turks and Caicos. This latter request was confirmed as "appropriate and acceptable" by Schad in a letter to the General Director of customs dated 14th August.
The second consignment.
The second consignment arrived at Santo Domingo on the 14th September 1997 on board the vessel "Hojin". This time the bill of lading expressly referred to the fact that the vehicles were for transhipment to Providenciales in the Turks and Caicos and indeed the same information appeared in the cargo manifest. It appears that the customs in Santo Domingo had already requested a letter from the shippers Toyota confirming that all the cargo was to be transhipped to the Turks and Caicos. Such a letter was written by Toyota on the 18th September, and legalised by the DominicanConsulate on th 19th September. It covered both shipments and served "to verify that the Toyota vehicles in your possession of which details described hereunder are intended for transhipment to Bayview Motors Limited Providenciales………" It concluded: "Should the documentation on these vehicles not meet your requirements, please consider the letter as verification for the same." Schad duly dispatched this letter to the general Directorate of Customs.
Despite Toyota's optimism expressed in a letter to the claimants dated 19 th September 1997, that the verification letter prepared and sent by them would result in the release of the vehicles, no release was forthcoming, despite the acknowledgement by the customs of the receipt of that letter on 30th September. No progress having been made, Mr Aquino, the managing director of the Claimants, sought the assistance of Toyota. Toyota recommended that he should contact their local distributor, Delta Commercial, and on the 17th October 1997, Mr Aquino wrote to Delta Commercial as follows:
'Alvaro, thank you for your offer to help me with my problems with Customs in your country. The problem is not clear to me but it seems that originally Customs told us the paper work was not correct for the trans shipment. Since then we have provided what we believe to be the proper documentation. Still they do not seem to be interested in clearing our vehicles. The Tropical Shipping agent has been working on this but has not made any progress. Follows is the appropriate documents and a letter authorising your company to negotiate on behalf of us. I included a letter in Spanish if needed but my Spanish is...
To continue reading
Request your trial
- Bayview Motors Ltd v Mitsui Marine and Fire Insurance Company Ltd and Others
-
Clothing Management Technology Ltd v Beazley Solutions Ltd Trading as Beazley Marine UK
...a loss. 33 Most of the cases giving guidance about CTL concern ships rather than cargo but there are some parallels with the Bayview v Mitsui Marine [2002] 1 Lloyd'sRep 652 and [2003] 1 Lloyd's Rep 131 where the Court of Appeal implicitly approved the decision of David Steel J that a CTL h......
-
Melinda Holdings SA v Hellenic Mutual War Risks Association (Bermuda) Ltd (The "Silva")
... ... been the hearing of a claim by a Liberian company, Melinda Holdings SA ("Melinda"), as Claimant, to enforce its War Risks insurance by the Defendant, Hellenic Mutual War Risks ... principles set out in Schedule 1 to the Marine Insurance Act 1906, particularly at Rule 10) the ... the Ministry of Justice (as were all the others for whom he was responsible). Although a judge of ... gave short shrift to such an argument in Bayview Motors Ltd v Mitsui Marine and Fire Insurance Co ... ...
-
Anbest Electronic Ltd v Cgu International Insurance Plc
...Customs bond at Khor Fakkan Terminal. As Steel J expressed the position in an analogous situation in Bayview Motors v. Mitsui Marine [2002] 1 Lloyd’s Rep 652, at paragraph 26, page “Mr Aquino’s evidence was to the effect that the cars had been placed within a fenced off parking lot within t......
-
THE CESSATION OF SUE AND LABOUR
...Fire and Marine Insurance Company, Ltd[1969] 1 Lloyd’s Rep 293 (CA); Bayview Motors Ltd v Mitsui Marine and Fire Insurance Co Ltd[2002] 1 Lloyd’s Rep 652 (CA); Integrated Container Service Inc v British Traders Insurance Co Ltd, supra n 8. It is said that, where cargo is insured for a voyag......