clr/1989/1989_1_501.pdf

(1989)A. Hadjihannou, forthe plaintiffs. P.Polyviou, for the defendants. Cur. adv. vult. DEMETRIADES J. read the following judgment. According to the original petition filed bytheplaintiffs, their allegation wasthat 5 they had applied to the defendants to have a consignment of goods that was to be shipped to the United Kingdom, insured against Marine Risks as per Institute Cargo Clause (All Risks)valid from warehouse towarehouse, includingtheft, pilferage, non-delivery,short delivery, shortage and the costof recartoning and re- 10 labeling, but excluding theriskof blowing of tins.The insurance policyalso covered WarRisks,SR(InstituteStrikesRiotsand Civil Commotions Clauses) and CC Risks(Cargoclauses (AllRisks)). Atthe material time thegoods had alreadybeen removed from the warehouse of the ship's agents and were at allmaterial times 15 lyingon the quay of Famagusta Harbour. Itisthe allegation of the plaintiffs thatthe goods never reached theirdestination astheshiponwhichtheyweretobeloadedleftas a result of the outbreak of the coup d' etat that took place on the 15th July, 1974, and fhe events that followed as a result of the 20 Turkish invasion. The plaintiffs then submitted a claim to the defendants for compensation inaccordance with thetermsand conditionsof the insurance coverissued to them. By their Answer the defendants admitted that the goods were 25 notloaded on theship;thatFamagustaTown and Harbourhas,as from 14th August, 1974, been under the occupation and control of the Turkish army and that itmay be presumed or inferred that the goods have been lost as a result of warrisks.However, they allege, and I quote paragraphs 5 and 6 of their Answer which 30 read:«5 (

1. a)'War risks' are excluded from the Institute Cargo Clauses (AllRisks)Coverinrespect ofmarine bytheF.C. & S. Warranty in Clause 12 of the Institute Cargo 35 Clauses. 502 1 C.L.R. Fresca Foodsv.Guardian Royal DemetriadesJ. (b)Although the said cover includes 'War Risks S.R. andC.C.Risks'thisdoesnotgive coveragainstwarperil onland. 5 10 (
2. c)Clause 2(a)(
3. i)of the Institute War clauses 1.1.71 provides that the insurance againstWar Risks shall not attachpriortobeingonboardanoverseasversel. 6. The respondents further allege that inasmuch as the goodsatthetimeoftheiralleged orpresumed losswerestill on land and before loading on board the 'FRONTIER' at Famagusta there ws no cover even though the period of insuranceisfrom warehousetowarehouse». Photocopies of the relevant insurance documents are appendedtothisjudgment. TheoriginalPetitionwasfiledonthe31stDecember,1975. 15 AccordingtotheevidenceofP.W.1ChristosVassiliades,oneof the Managers of the plaintiffs, he gave the instructions for the insurance of the goods to Mr. A. Kyprianou, the Managing DirectorofCh.M.TheocharidesLtd.,theagentsofthedefendants inCyprus,andhadtoldhimthathewantedtheinsurancetocover 20 allrisks,warrisks,riotrisksand,also, to cover the goods from warehousetowarehouse. Forreasons that are tobe found inthe file, the action didnot proceedtobesetdownforhearing. On the 15th March, 1979, Counsel for the defendants made 25 thefollowing requesttotheCourt: «(a)The case has been fully prepared by Counsel for the defendants forthehearingofthe30thMarch,1979. 30 35 (b)Thedefendants intendedtoadduceevidencebycalling asawitnessMr.AndreasKyprianou,deceased,theManaging Director of Ch. M. Theocharides Ltd., the agents of the defendants inCyprus,andinfactthelateAndreasKyprianou hasgivenawrittenstatementtothedefendants' Counsel. (c)Regretfully thesaidAndreasKyprianoudiedon the5th March, 1979,and ithasbeen establishedbydefendants' Counset thatfor the moment thereisnobodyintheoffice ofthe defendant'sAgencyoffice,withtheexceptionofjuniorfemale 503 DemetriadesJ. FrescaFoodsv. GuardianRoyal

(1989)staff, who can give evidence inthiscase and the defendants' case will be prejudicially affected if they are deprived of the possibility of adducing evidence which is a necessity as aforesaid. (d)The defendants aremakingefforts tofind and appoint a 5 Manager of theirAgencywhom the defendants' Counsel will brief about thiscase soon after his appointment. (e)Counsel forthedefendantsrequestthatthiscase, subject to the Court's convenience, be refixed before summer vacations, because it isfair for the plaintiffs that they should 10 not be unduly inconvenienced by the death of the said andreas Kyprianou». On the 22nd April, 1980, the plaintiffs applied for the amendment of their Petition claiming an alternative prayer based onfraud and/or misrepresentation and/or negligentstatementby 15 the deceased Kyprianou. This application was based on an affidavit sworn byMr.Vassiliades,inwhich he alleged that*

1. By a misunderstanding that occurred during the timeI was giving instructions to our counsel, the full facts were not 20 placed before him and so the Writ of Summons and the Petition, drafted by him, do not contain the full facts and/or grounds on which the action should have been based.
2. Therefore the amendments sought by the attached application arenecessaryfordeterminingtherealquestionsin 25 controversy between theparties». Intheiramended Petition the plaintiffs allege the following: «3A. Further and/or in the alternative the Plaintiffs allege that they were induced to enter into the above agreement relying on therepresentationsand statementsof Defendants' 30 Agent in Nicosia that theywould inanycase be covered forall risks, including that of war, from warehouse in Famagusta to warehouse atthe place ofthedestination ofthe goods. 3B. The said representations were made as above without any reservation or limitation by the said Agent of the 3 5 Defendants. On the contrary he assured the plaintiffs that he was doing soafter consultations with hisprincipalsin London. 504 1C.L.R. Fresca Foodsv.Guardian Royal DemetriadesJ. 3C. The said representations were made or caused to be made by the Defendants well knowing that they were false and untrue and/or they were made by them recklessly not caringwhether theywere true or false. 5 10 3D. The defendants made or caused to be made the said representations in order to induce the plaintiffs to enter into theabove agreement. 3E. Bymeans ofthe saidrepresentations andactingon the faith thereof and in the belief that the same were true, the plaintiffs were induced toenter intothe above agreement». The defendants bytheirnewAnswerdenied theseallegaionsof the plaintiffs. On,the 11th February, 1981, counsel for the defendants, by letter asked the plaintiffs for the following further and better 15 particulars: 20 25 30 35 «Werefer totheabove action and to the amended petition you filed by order of the Court dated 11.6.80 and shall be obliged ifyou let us have within 10 days the following further and better particulars to which we believe we are entitled in law, making thus any application to the Court for such particulars unnecessary. In para 3A. you refer to certain 'representations and statements' of the defendants' agent that the petitioners would in any case be covered 'for allrisks'.Please statewith full particulars the exact content of such representations, the time they were made, the place they were made, by whom and towhom they were made and also whether they were in written form or merely oral. Is there any documentary evidence of these representations and statements? In para 3C. you allege that the said representations were false and untrue arid/orreckless.Whatmattersdoyou relyon inpleadingthis?Areyou allegingthatthere hasbeen fraud, in. otherwordsthatthepolicyofinsurance hasbeen extracted by deceit, thatitisvoidorvoidableandthatyouwilltherefore be seeking a remedy in tort? Does your allegation that the insurance policy was preceded by fraudulent or reckless statements amount toa repudiation oftheinsurance policyin question so thatyou no longer regard itasinexistence? Inany 505 DemetriadesJ. Fresca Foodsv.Guardian Royal

(1989)case are you relying on the representations and statements thatyouarenowpleadingasamountingtoeventsfurnishing a new cause of action or do you merely regard them as amplifying the termsof theinsurance policy?» To this letter the plaintiffs responded by letter dated the 27th February, 1981: «Werefer toyourletterofthe 11thFebruary 1981bywhich yourequest further andbetterparticularsofourallegationsset out inparas3Aand 3Coftheamended petition filed byorder of the Court and inform you the following: 5 *'·' A. The representations referred to in para 3A of the Amended Petition were made orally on the 19.7.74 by the late Mr. Andreas Kyprianou Managing Director of the Guardian's insurance Agency in Nicosia, to Mr. Christos Vassiliadesone ofthe Directorsoftheplaintiffs attheoffice of 15 theAgency in Nicosia. B. The late Mr. Kyprianou stated clearly to the said Mr. Vasiliadesthat thepolicycovered the carriage ofthegoodsin question from Famagusta Warehouse to Manchester Warehouse and thence to the final Warehouse for all risks 20 including warrisks. C. This sort of insurance was specifically requested by Mr. Vassiliades in the past and it was repeatedly made by the defendants' Agency in Nicosia, in connection with goods belonging totheplaintiffs, after they had obtained leavetodo 25 sobytheirHead Office in London. On 13.7.74 Mr. Vassiliades rang up Mr. Kyprianou and requested to insure the goods in question against all risks including war risks, from Warehouse to Warehouse and he answered O.K. On 19.7.74 the request was repeated by Mr. 30 Vassiliades and the assurances were given byMr. Kyprianou asstated above in parasAand B. Referring tothe2ndpartofyourletterbywhichyou request particulars of para 3C of the Amended petition, we can say with respect, thatitreferstolegalpointswhich willbe argued 35 atthehearingofthePetition andnottofactsforwhichyou are entitled toseek particulars. 506 1C.L.R. Fresca Foodsv. Guardian Royal DemetriadesJ. Inourviewallthe materialfacts onwhichwewillrelyatthe hearing for substantiating our legal grounds are sufficiently pleaded inthe Petition». By their amended Petition and the evidence given by the 5 plaintiffs' witness Mr.Vassiliades, it appears that two issues pose for decision (a) Were the plaintiffs induced to enter into the insurance Contract asaresultofthefraudulent orrecklessrepresentationsof thelateMr.Kyprianou, asthesearesetoutinparagraphs3Ato3E 10 oftheamended petition? (b)Ifthe answer to (a)above isinthe negative, whatisthe true construction of the terms of the Insurance Contract that covered thetransportation ofthe goods? Havingheardtheevidenceadduced, oraland documentary, as 15 well as the arguments of counsel, Ihave come to the following conclusions: As regards (a) above, having in mind the correspondence exchangedbetweentheplaintiffs and thedefendants, thefact that the question of fraudulent representations was never raised prior 20 to the death of the late Kyprianou and that this issue was only raised more than a year after hisdeath, Ifind that the allegations made by Mr. Vassiliades in this respect are an afterthought, because itwasmost unnaturalforthiswitness,whilstthecase was coming and going before the Court for hearing, to recollect the 25 alleged true events after the death of the late Kyprianou. In the result,thisissue fails. As regards now the second issue, I find that the insurance documents are very clearand unambiguous in that warriskswere only covered by the policy issued after the goods were to be 30 loaded onthe ship.Inthe resultthisclaim alsofails. In the light of the above, the action is dismissed with costs in - favour of thedefendants. Coststobe assessed bythe Registrar. Action dismissedwithcosts. 507