Nima SARL v The Deves Insurance Public Company Ltd [2002] EWCA Civ 1132 (30 July 2002)

Nima SARL v The Deves Insurance Public Company Ltd [2002] EWCA Civ 1132 (30 July 2002)

The Court of Appeal held that, in light of the fresh evidence (including the crew member's statement), it was clear the vessel was a 'phantom ship' and never intended to sail to Dakar. Therefore, by operation of s.44 of the Marine Insurance Act 1906, the risk under the policy never attached and the claim must fail. The warehouse to warehouse clause did not displace s.44. As there was no serious issue to be tried, service out of the jurisdiction was set aside.

Citation
[2002] EWCA Civ 1132
Parties
Claimant/respondent: NIMA S. A. R. L; Defendant/appellant: THE DEVES INSURANCE PUBLIC COMPANY LIMITED
Jurisdiction
England and Wales
Judgment Date
30 July 2002
Procedural Posture
Appeal From High Court (commercial Court) / Court of Appeal Judgment on Application to Set Aside Service Out of Jurisdiction
Outcome
Appeal allowed; service out of jurisdiction set aside; claim dismissed for lack of serious issue to be tried.
Legal Topics
Marine Insurance, Jurisdiction, Forum Conveniens, Interpretation of Insurance Contracts, Burden of Proof, Section 44 Marine Insurance Act 1906, Institute Cargo Clauses
Insurance Law Private International Law Civil Procedure Marine Insurance Jurisdiction Forum Conveniens Interpretation of Insurance Contracts Burden of Proof +2 more

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Parties

NIMA S. A. R. L

Claimant/respondent

THE DEVES INSURANCE PUBLIC COMPANY LIMITED

Defendant/appellant

Procedural Posture

Appeal From High Court (commercial Court) / Court of Appeal Judgment on Application to Set Aside Service Out of Jurisdiction

Legal Issues

  1. 1 Whether the risk under the marine insurance policy attached where the vessel was a 'phantom ship' and never intended to sail to the contractual destination (s.44 Marine Insurance Act 1906)
  2. 2 Whether the 'warehouse to warehouse' clause (ICC Clause 8) displaces s.44 of the Marine Insurance Act 1906
  3. 3 Whether there was a serious issue to be tried justifying service out of the jurisdiction

Ratio Decidendi

The Court of Appeal held that, in light of the fresh evidence (including the crew member's statement), it was clear the vessel was a 'phantom ship' and never intended to sail to Dakar. Therefore, by operation of s.44 of the Marine Insurance Act 1906, the risk under the policy never attached and the claim must fail. The warehouse to warehouse clause did not displace s.44. As there was no serious issue to be tried, service out of the jurisdiction was set aside.

Court Disposition

Appeal allowed; service out of jurisdiction set aside; claim dismissed for lack of serious issue to be tried.

Orders

  • Order of Andrew Smith J refusing to set aside service out of jurisdiction is reversed.
  • Claimants' claim is dismissed for lack of serious issue to be tried under s.44 Marine Insurance Act 1906.