Reliance Marine Insurance Co. v. Khab Rajpar & Co., Civ. App. 10-Z-67, 3/11/67, Kimicha Ag. C. J.

Reliance Marine Insurance Co. v. Khab Rajpar & Co., Civ. App. 10-Z-67, 3/11/67, Kimicha Ag. C. J.

The defendant insured a shipment of 58 bales of mats sent by the plaintiff from Hong Kong to Zanzibar. The bales were a damaged when unloaded in Zanzibar Barbour. When the goods were examined by customs authorities a short time later, 656 pieces valued at Shs. 1,977/- were missing. The insurance policy covered, inter alia, losses from “(p)irates, robbers, thieves and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the aforesaid subject matter of the insurance, or any part thereof.” The defendant insurance company did not dispute the amount or valuation of the plaintiff’s loss; however, it denied liability. The plaintiff, admitting that the policy was not an all-risks policy, argued that it was a warehouse-to-warehouse policy; the plaintiff contended that it had discharged its onus of proof by showing that the goods had been stolen before passing through Zanzibar customs officer who had passed on these goods, which said that the cases containing the goods were “torn” and “broken”. The defendant argued that, as this was not an all-risks policy, the plaintiff was obliged to show that the loss was occasioned by on of the perils enumerated in the policy, and that since the plaintiff had failed to do so, recovery should be denied. (Citing 2 Arnold on Marine Insurance, 15^th edition, Para. 1272; 22 Halsbury’s Laws  of England, 3d edition, Para. 73, Para 131; and distinguishing Kanti Ltd. v. British Traders Ltd., (1965) E.A.L.R. 108).

Held: (1) Theft, as defined by the Marine Insurance Act 1906, requires violence in the taking. (Citing (1922) All E. R. 372). It may be that the bales were accidentally damaged during the unloading, where upon someone helped himself to the goods. This would be pilferage and not theft under the Act, and the loss would not be covered by the policy.

            (2) The plaintiff, however, discharged his burden of proof, by showing damage by breaking and tearing in a manner neither natural nor inevitable. This damage amounts to theft under the marine Insurance Act. As the defendant neither conducted any cross-examination nor put forth any evidence to counter the plaintiff/s submissions, the judgment of the trial court in the plaintiff’s favour, awarding him Shs. 1,977/- as prayed, was correct.  

            (3) The report of the customs officer made at the time f his inspection of the goods, including his remarks on the back of the form, was admissible in evidence and, in the absence of contrary evidence, is presumed to be correct. (Citing Evidence Decree, Cap. 5, s. 114.)