RAPHAEL LOGISTICS T LTD VS PHOENIX T ASSURANCE CO

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL CASE NO. 17 OF 2023 RAPHAEL LOGISTICS (T) LTD.................................................... PLAINTIFF VERSUS PHOENIX OF TANZANIA ASSURANCE CO. LTD........................... DEFENDANT JUDGMENT March 5th, 2024 & April 3ff h, 2024 Morris, J This suit results from a marine insurance contract between the parties above. The plaintiff sues the defendant claiming that the latter breached it. He seeks the court to declare as such and order him to compensate the plaintiff with USD 1,674,861 and £ 275,723 along other auxiliary reliefs. The defendant denies all allegations towards his liability or remedies sought hereof. The deciphered history of this case is that the plaintiff owns a crane. Its model is TADANO FAUN ATF 130G-4 under registration number YN62 AFZ (the crane). Around August 2021 the crane was leased to/hired by Bollore Transport and Logistics (T) Ltd (elsewhere, Bollore) for a work at Songosongo. Thus, it was to be transported from the plaintiff's Dar es salaam 2 warehouse to the said destination in the first week of September 2021. Consequently, the plaintiff purchased the marine insurance from the defendant. The value at risk was set at Tshs 1,770,000,000/-. He paid Tshs 7,310,100/- being premium for the applicable insurance policy no. 23685/21/HO. The crane got damaged when it was being transported to Songosongo on September 5th , 2021. Upon being notified of such accident, the defendant registered the claim as number Ol/21/CK/HO but repudiated liability later. The defendant alleged that the accident fell outside the scope of cover because it was caused by a third party who was handling the crane (Bollore). Fervently, the defendant maintained such denial throughout the trial and craved for dismissal of the suit with costs. This rivalry led to framing of three (3) issues for the Court's determination, namely; i) Whether the damage caused to the crane YN62 AFZ is covered under insurance policy between the plaintiff and the defendant. ii) If the 1st issue above is in the affirmative, whether the defendant breached the insurance policy by repudiating the plaintiff's claim. iii) To what reliefs are parties entitled. 3 The parties enjoyed legal representation from a two-lawyer team each. Mr. Fikiri Liganga and Ms. Rosemary Mzee, learned advocates appeared for the plaintiff. The defendant had advocates Bertha Nanyaro and Norbert Mlwale on his side for defence. Pursuant to rules 49 and 50 of the High Court (Commercial Division) Procedure Rules, 2012; Mr. George Joseph Oiso lodged his witness statement for the plaintiff as PW1. Further, Messrs. Robert Kalegeya, Farhaan Manji and Elly Weke followed suit for and on behalf of the defendant as DW1, DW2 and DW3 respectively. All witnesses' statements were adopted by the Court as evidence in chief for each respective witness. Moreover, all witnesses appeared for cross and re­ examination sessions according to the law. Furthermore, the plaintiff tendered two exhibits: the insurance cover note dated 04.09.2021 (P l); and the demand letter together with reply thereof (P2). Likewise, the defence had exhibits to tender and rely on. Eight (8) of them were admitted in evidence. That is, the Institute Cargo Clauses A [to be referred in short as ICCA, (DI)]; emails dated 08.09.2021 and 30.11.2021 (D2); demand letters dated 23/09/2021, 30.09.2021 and 01.10.2021 (D3); a preliminary loss assessment report of 09.09.2021 and a letter dated 31.01.2022 (D4); a preliminary loss assessment report of 4 24.03.2021 (D5); a final loss assessment report of 22.05.2023 (D6); TADANO damage report of 02.10.2021 (D7); and Tanzania Metrological Authority (TMA) report of 28.07.2023 (D8). The Court makes reference to these exhibits while analysing parties' evidence herein. The plaintiff's solo witness (PW1), apart from reiterating the basic contents of the pleadings, maintained that the crane was damaged by marine associated perils while on board the marine vessel. He also contended that, despite the early intimation of the claim to him, the defendant took no serious steps to analyse, assess, adjust and process the claim professionally so as to arrive at settlement of the same according to the policy (exhibit Pl). In addition, PW1 asserted that the plaintiff timely provided the defendant with estimates of repair from manufacturers of the crane but it took the latter about eight (8) months before deputing the loss adjusters to do the needful. The costs of repair and transportation of the damaged crane to and from Germany, according to him, totaled £ 275,723 and $ 207,782 respectively. He contended further that, on top of such costs, the plaintiff suffered in terms of loss of profit, reputation and business prosperity. Consequently, the plaintiff served the defendant with the demand letter the 5 response of which was repudiation of the claim (exhibit P2). He reiterated the plaintiffs relief per the presented pleadings. On the part of the defence, the testimonies of DW1-DW3 primarily complimented each other. DW1 started by acknowledging existence of the insurance policy between the parties (exhibit P l) but added that the risk was covered in line with the ICCA (exhibit DI). To him, ICCA excluded the liability of the insurer in circumstances of this case. He stated that the plaintiff contracted Bollore to handle transportation logistics of the crane. However, the said third party (Bollore) violated standards of securing cargoes on board the marine vessel. Consequently, when the vessel encountered a strong wind mid sea, a 70-ton underground gas tank (gasometer) tipped over and landed on the crane thereby damaging it. Thus, in his opinion, the proximate cause was not a sea factor (wind) but the handlers' negligence. DW1 also stated that the defendant delt with the claim professionally by deputising both internal and external loss assessors who came up with reports (exhibits D4-D6); all of which apportioned the blame to Bollore for mishandling the voyage by ignoring necessary safety standards. Moreover, he stated that TMA certified that around the fateful day the wind was 6 moderately violent not to shake the vessel and lead to the damage herein. Hence, the defendant's repudiation was justified. On his part, DW2 (defendant's internal assessor) testified that he inspected the damaged crane at Dar es Salaam port and discovered that the gasometer which was improperly or negligently secured and parked near the crane, swayed, tipped over and fell on the crane thereby causing the damage under reference. Likewise, he contended that the blame was on Bollore. In a bid to reinforcing the defence further, DW3 presented himself and testified in Court as the licensed external assessor who assessed the loss on behalf of the defendant in March and May 2023. He stated that he also discovered that the accident was occasioned by the third party's negligence and poor harnessing of the cargo that was near the crane. He referred to exhibits D6 and D8 and testified that the wind at the time of accident was not excessively ferocious near Mafia Island. In the conclusion, while the first d to witnesses testified that the plaintiff's suit is unmaintainable and that the same should be dismissed with costs; the last witness recommended for compensation to the plaintiff to be considered on the basis of the adjusted amount in his final report. 7 The above testimonies notwithstanding, both sides filed respective written closing speeches as sanctioned by the Court. I hasten to appreciate the expressive final submissions from each party's counsel. Naturally, the submissions summarised strengths of own case and painted the weaknesses observed in the opposite side's suit theory. For the plaintiff, it was submitted that the accident occurred within the risk covered under the policy. To him, the defendant's repudiation is illegitimate and contrary to the policy. He argued further that ICCA (exhibit DI) does not exclude the present risk unless construed out of context. According to him, the defendant was not negligent and/or at fault anyhow. It was his additional contention that, so long as the defendant is aware of who exactly he holds as having caused the accident, the insurer can proceed against such person under subrogation doctrine. He also argued that facts not disputed by the defendant during the trial, should be considered as accepted by him in line with Em m anuel Saguda @Su!ukuka & Another v R, Crim. Appeal No. 422B of 2013; and Paulina Samson Ndawavya v Theresia Thomas Madaha, Civ. Appeal No. 45 of 2017 (both unreported). 8 In addition, the plaintiff maintained that the defendant failed to clearly prove how the risk herein is excluded under the policy. Hence, he should be held liable to pay compensation to the policyholder; and if he so wishes recover his paid amount by way of subrogation. He cited section 79(1) of the Marine Insurance Act, 1906 to further reinforce his argument that the defendant becomes "subrogated to all the rights and remedies of the assured in and in respect of that subject matter as from the time of the casualty causing the loss." It is the plaintiff's conclusion, therefore, that the defendant's repudiation herein is nothing but an intentional breach of the insurance policy between parties above. Regarding remedies to the parties, the plaintiff asserted that he is entitled to the full sum insured under the policy (Tshs 1,770,000,000/-). Further, is argues that such amount attracts interest at both commercial and court rates in his favour; in addition to general damages and costs of the suit. On his part, the defendant submitted that his repudiation is justifiable under the policy and the law. To him, the covered voyage was Dar es Salaam - Zanzibar not Dar es Salaam - Songosongo. Further, he argued that the policy is subject to ICCA which excludes damage caused by the third party's 9 negligence. He made reference to the witnesses' testimonies and stated that all of them proved that the accident was caused by the negligence of Bollore (third party). He cited Clause 4 (4.3) of ICCA as the most relevant provision which exonerates him from the alleged liability herein. Moreover, he submitted that the plaintiff's pleadings do not contain clear facts of causation of the damage to the crane. It was submitted further that such omission by the plaintiff notwithstanding, the accident occurred on the day when and at the place where the wind was significantly calm and wave height notably low. Hence, to him, the accident did not fall within the scope of cover. The defendant also introduced and argued that despite the loss herein falling outside the cover, it is important to appreciate that the insurance policy is subject to the doctrine of utmost good faith. Blending such doctrine to the matter at hand, the defendant submitted that, after intimation of his claim, the plaintiff did not accord the former party with the necessary cooperation; which omission amounted to breach of the policy. I was referred to section 37 of the Law o f Contract Act, Cap 345 R.E. 2019; Simba Motors L td v Joh Acheiis & Sohne GMBH a n d Another, civil appeal No, 72 of 2020 (unreported); and Photo Production Ltd v 10 Securicor Transport Ltd [1980] 1 All ER 566 to the effect that parties are conjoined by the law to honour own promises in contracts. With the above conclusion, the defendant argued further that the plaintiff's suit should be dismissed with costs because: he failed to prove the specific damage suffered by him contrary to law; the contract of insurance is for indemnity and the plaintiff cannot benefit over and above the actual loss suffered; and that the claimed amount is not only exorbitant but also unjustifiable. Towards such conclusions, the defendant made reference to cases of Fikiria Richard Mwasenga v Yohana Adam Kalonge and Another, Civil Appeal No 1 of 2021; Alliance Insurance Corporation Ltd v Arusha Art Ltd, Civil Appeal No. 297 of 2017; Reliance Insurance (T) Ltd vMaxinsure (T) Ltd, Civil Appeal No. 107 of 2019; Saniam Genera! Insurance (T) Ltd vDennis Charles and2 Others, Civil Appeal No. 51 of 2021 (all unreported); and Rayne v Preston (YSSty 18 CD 1. Under the first issue the Court is being moved to determine whether the damage caused to the crane is covered under insurance policy between the plaintiff and the defendant. Whereas parties do not dispute existence of a valid insurance policy between them, on the one hand; and the genuineness of the accident that caused substantial damage to the insured 11 crane, on the other; they are at loggerheads regarding the scope of the insurance cover. The plaintiff-policyholder maintains that the accident is fully covered. To him, he never breached any term of the policy and the accident was caused by the marine perils. However, the defendant is stanch that the reading of ICCA (especially Clause 4.3), leads to one-and-only one conclusion: that the accident falls outside the scope of the marine insurance herein. The defence draws its strength from a number of factors. I will state them here. One, that the plaintiff contracted Bollore to handle the crane to the intended destination. Hence, liability shifted to the latter (e.g. paragraphs 6 and 7 of WSD; and 5, 6 and 11 of witness statement of DW1). Two, Bollore mishandled the cargo (gasometer) on a vehicle which was parked near the crane such that when the vessel carrying, among others, the cargo and the crane faced the sea winds, the gasometer tipped over and fell on the crane. Such negligence on the part of Bollore (third party) made the accident to fall outside the policy cover pursuant to ICCA. Three, the proximate cause of the accident was not a sea/marine peril but the negligence of the third party (DW1 during cross examination session). 12 As I pick the task of resolving the first issue, I will first discuss the concept of proximate cause of the loss. The justification for this preference is straightforward. The parties have taken issue as to whether or not the cause of the loss was a marine-associated risk. Further, the answer to such question interpolates a similar enquiry, if it was not; whether it is excepted by the policy or law. Proximity of the cause of loss, otherwise referred to in Latin as causa proxima principle, places emphasis on whether or not the contingences took place within or outside the realms of an insurance cover. Both the cause and effect of loss should be regarded as being proximate to one another. Otherwise, when the two are not proximate, they are considered too remote to warrant indemnity or compensation. In Latin maxim, actus proxima non remota spectator. In principle, in the presence of the proximate cause, if it is the one which is insured against, the insurer cannot avoid liability. Therefore, the major object of this principle is to identify the 'nearest cause' of the loss. Moreover, the cause may be natural or manmade or a combination of both. The rationale of the principle is fourfold. Firstly, a series of successive causes (events) may occasion loss of/to the insured property. That is, one 13 contingency starts and another/others in succession of each other lead to complete loss or damage to the property. Secondly, for some reason, the insured may purchase cover for his property leaving out other causes of the loss to the subject property. Thirdly, the actual nearest cause of loss is to be found out of the many. Fourthly, a loss whose cause is more than one, the nearest or closest of all is to be used to determine whether or not the insurer is liable. Thus, the remoter the cause, the less the likelihood of or no liability on the part of the underwriter. Principally, thus, the proximate cause of loss out of a chain of causation following upon the occurrence of the event insured against should be direct, effective and latest. In mind hereof, I have courts holdings in Re Etherington and The Lancashire and Yorkshire Accident Insurance Co. [1909] 1 K.B; Becker, Gray & Co. v. London Assurance Corporation [1918] A.C. 101; Leyland Shipping Co. Ltd. v. Norwich Union [1918] A.C. 350; Samuel & Co. (P.) v. Dumas\W2A\ A.C. 431; Nasser Mohamed Omer v Prudential Assurance Co. Ltd{V&$y\. EA 79; and Jupiter Genera!Insurance Co. Ltd v Rajabaii Hasham & Sons (1960) 1 EA 592. 14 In the matter at hand, evidence has it a clear proof that the vessel encountered sea tides due to the wind that caused the gasometer to tip over, fall on and damage the crane. At page 9 (last paragraph) of his final report (exhibit D6), the defendant's external loss assessor (DW3) states th a t" the cause of the loss is attributed to strong ocean winds and currents experienced by the carrier vessel MV Zuhra". In essence, therefore, the cause of the tipping over was a natural contingency (the wind) but the falling resulted from the poor harnessing of the gasometer (human factor). However, it has to be noted that in the absence of the wind/sea waves the tipping over and/or falling of the 70-ton cargo (gasometer) on the crane was not automatic. More so, in this case, the latter did not occasion at Dar es Salaam port but after miles of voyage. Important to note further is the fact that contingencies of a windy ocean form part of the marine perils. The above elucidation notwithstanding, another important question is whether or not the accident-causing risk herein was excluded under the policy. On record, DW1, DW2 and the defendant's counsel were passionate that ICCA excludes the risk in express terms. Below, I reproduce the Clause relied on by the defendant to repudiate the claim. It reads; "4 In no case shall this insurance cover 15 4.3 loss damage o r expense caused b y insufficiency or unsuitability o f packaging o r preparation o f the subject m atter insured to withstand the ordinary incidents o f the insured transit where such packaging o r preparation is carried ou t b y the assured o r their employees o r p rio r to the attachm ent o f this insurance." From the quoted excerpt the following relevant aspects are evident. One, loss resulting from insufficient or unsuitable packaging or preparation of the insured item is excepted. Two, the insufficiency or unsuitability is measured in relation to the ordinary incidents of the insured transit. Three, for the risk to be excepted, the packaging or preparation must be done by the insured or his employees upon or after purchase of insurance. Four, poor packaging or preparation of the insured subject matter done by anyone prior to purchase of insurance is also left out. The logic of all the foregoing conditions is not very far to find. The insurance contract, by its nature, covers the happening of the loss that is entirely accidental or fortuitous in so far as the insured is concerned. Thus, if the insured mishandles the subject matter of insurance, he is taken to facilitate/contribute to the loss. The principle, hence, complements the settled rule that no one should benefit from self-authored wrong. Reference 16 is made to George Benjamin Ferdandes v Registrar of Titles and Another, Civil Appeal No. 65 of 2018; Godebertha Rukanga v CRDB Bank Ltd and Others, Civil Appeal No. 25/17 of 2017 (both unreported) I will now apply the cited Clause to the present matter. It is obvious that the crane was not subject to preparation/packaging howsoever (paragraph 3 at page 15 of exhibit D6). That is, the accident did not result from the way the crane was packaged/prepared. Instead, it was the other cargo (gasometer) which was poorly harnessed. The first and second conditions are accordingly inapplicable. Nonetheless, assuming the crane was to be packaged/prepared; in the present matter, such undertaking was not done by the plaintiff or his employees. The third exclusion fails too. Likewise, in line with the first two conditions; that the crane was not subject to packaging/preparation as envisaged by the above Clause, the fourth condition is inapposite. The foregoing analysis aside, the defendant has spent considerable time building his repudiation upon the doctrine of utmost good faith (uberimae fidei/fides}. This doctrine demands that parties to an insurance contract should transact on the basis of the 'whole truth7. However, to the insured this duty is mostly significant at the time of proposing for the policy 17 to enable the underwriter to assess the risk fully. To the insurer, the obligation includes disclosure of the scope of cover so that the proposer makes a founded decision whether or not to purchase the cover; or to negotiate for more appliable extension(s) under the ordinary product. At the time of the claim, the principle exists to help the underwriter to establish the exact cause of the loss and attachment of liability under the policy. Hereof, I am guided by holdings in Macaura r, NorthenAssurance (1925) AC619; S at Dev. Sharma v. Home Ins. Co. N Y (1966) EA 8; Lucerna v. Craufurd (ISOS') 2QB & PNR 269; Barnett v. London Assurance Corp. (1926) 4 6 ALR 526, Jubilee Ins. Co. Ltd. v. John Sematengo [1965] EA 233, Kenindia Assurance Co.Ltd v. Kamithi & Another [2004] 2 EA 115\ In this suit, however, this doctrine is unhelpful to the defendant. To begin with, from inception of the claim his repudiation is based on the want of cover. That is, his ground of repudiation the claim is that the accident falls outside the scope of cover. For instance, in his letter of April 4th , 2022 to the plaintiff's advocate (exhibit P2), the defendant states that his repudiation is based on the ground that Bollore used "a small ship unfit for the carriage of the cargo resulted into this loss" contrary to Clause 5.1.1 of ICCA. But 18 previously, the defendant had communicated to the plaintiff through his brokers that the loss was not covered because it resulted from insufficiency or unsuitability of preparation of packaging of the subject matter against Clause 4.3 of ICCA (refer to defendant's letter to the brokers dated January 31st, 2022 - exhibit D4). In addition, throughout his pleadings, the defendant does not specifically advance the subject doctrine as his ground of defence. All that is pleaded hereof concerns the unyieldingness of the insured to supply claim­ supporting documents. In law, parties are bound by respective pleadings. This rule calls for no overemphasis. It was well settled in Salim Said Mtomekeia v Mohamed Abdallah Mohamed, CoA Civil Appeal No. 149 of 2019; Scan Tan Tour v The Catholic Diocese o f Mbuiu, CoA Civil Appeal No. 78 of 2012; Lawrance Surumbu Tara v The Hon. Attorney General and 2 Others, CoA Civil Appeal No. 56 of 2012; (all unreported); and James Funke Ngwagilo vAttorney Genera! [2004] TLR 161. Moreover, the defendant is raising the doctrine in his final submissions. It is a settled law that arguments and submissions from the bar are not evidence. See, for instance, The Registered Trustees o f the Archdiocese o f Dar es Salaam v The Chairman, Bunju Village 19 G overnm ent & 1 1 Others, Court of Appeal Civil Appeal No. 147 of 2006; Bish In te rn a tio n a l B. K & R u d o lf Teurnis Van W in k e ih o f v Charles Y aw S arko d ie & Bish Tanzania Ltd, Land Case No. 9 of 2006; Furthermore, the alleged lack of plaintiff's cooperation is inoperative, in my view, because the omission did not prevent the defendant from assess!ng/adjusting the loss to finality. Lest, the independent loss assessor (DW3) would have failed to produce his final report (exhibit D6). In the same vein, the defendant would wish to rely on the subject doctrine while the envisaged cooperation of the plaintiff hereof, was sought in pendency of this suit. Thus, logic would dictate that the defendant's move and demands were calculated to undermine the pending suit. Another manifest aspect from the defence case theory is that the accident occurred along the uncovered voyage. That is, it is asserted that the cover was purchased for the route of Dar es Salaam warehouse - Zanzibar warehouse; but the route embarked herein was Dar es Salaam - Songosongo. I have taken liberty to read the applicable Cover Note (exhibit P l). Whereas the interest of the policy is rendered as "On consignment of used Tadano Faun ATF130G-4 mobile crane being transporting (s/c) from Dar es Salaam to Songosongo as per the commercial invoice no.24985 dated 20 24/10/2018"; the voyage therein is indicated at "from Tanzania-Dar es Salaam Warehouse to Tanzania Zanzibar Warehouse". My reading of those sections from the same Cover Note, move me to raise a number of arguments. As it was the case for uberimae tides, the defendant did not plead that he repudiated the claim for want of the insured voyage. It has been raised as an afterthought. Further, as the two destinations are covered in the same contract, it was the obligation of the underwriter-defendant to be clear on what route he was indeed insuring. Insurance is a standard form contract. Ambiguous terms in such kind of contract should be construed against the author. That is the law. Indeed, it is the core spirit of verba forties accipiuntur contra proferentem rule. This rule runs from the Latin maxim which literally means "against the offeror" or "guilt of the drafter" (Rajdip Housing Developm ent L td v Wambugu [1999] 2 EA 279; and Cheieta Coffee Plantations L td v Mehisen\y&$\ E.A. 203). Furthermore, on being cross examined DW1 stated that the covered voyage was Dar es salaam-Songosongo. In addition, it is undisputed that the accident occurred before "MV Zuhra" reached at either of the two destinations in controversy. That is, the incident did not occur at Songosongo nor did it happen at Zanzibar. Further, the defendant has not established the 21 exact spot where the accident occurred to prove to finality that the vessel had changed the insured route to warrant exception under the policy. All that is mentioned is the sea area near or around Mafia. In the absence of such conclusive evidence, in my view, the Court cannot safely hold that the voyage was changed at the insured's instance to substantiate repudiation of his claim. Nevertheless, the defendant did not communicate his repudiation on such basis. In view of the analysis, arguments, reasoning and conclusions above; the first issue is answered in the plaintiff's favour. I accordingly pass it. For exactness, the risk which occurred was duly covered under the insurance policy herein. I now move to the second issue. The same is dependent on the affirmation of the first issue. After determining the latter in the affirmative, the Court has to accordingly determine whether the defendant breached the insurance policy by repudiating the plaintiff's claim. In this connection, I will evaluate the evidence to establish the post-accident obligations of parties. The first obligation of the insured-plaintiff, according to the Cover Note (exhibit P l), is to notify the defendant directly or through his agent for the claim within East Africa or outside East Africa respectively. Undisputedly, this 22 duty was duly performed by the plaintiff [paragraphs 3(b) of plaint; 4 and 5 of WSD; 1G and 7, 8 of witness statements by PW1 and DW1 respectively). The other obligation, according to DW1 (upon being cross examined), is upon the insurer-defendant to assume that the intimated claim was payable and take necessary steps to attend the scene of the accident and assess, adjust and report about the settlement of loss or otherwise. Regarding this aspect, parties are locking horns. The plaintiff alleges that the defendant did not timely heed to the claim from inception [paragraphs 3(c)(e) and (g) of the plaint; and G and H of P W l's statement]. On his part, the defendant contends that he expeditiously delt with the claim by appointing loss assessors who revealed that the accident was caused by the third party's negligence (paragraphs 4 and 12 of the written statement of defence -WSD; and 8,9 and 10 of D W l's statement). While I agree with the defendant's contention that the insurer took up the matter immediately by assigning the claim number; and deputing his internal assessor to visit the locus in quo (exhibits D2 and D4) I have adequate reservations against the justification for his haste conclusion leading to impugned repudiation. Firstly, after his visitation, the defendant's internal assessor (DW2) produced the Preliminary Damage Inspection Report 23 (exhibit D4). As this was the initial authorship, logically its findings were not final. Secondly, the last-but-one paragraph of said report provided that; "It was dear to everyone there at this point, that the crane was damaged extensively, and more experts an d equipment were needed at the site to ensure proper actions were taken to offload the crane to avoid any further damage. This was to be done the n e xt day onwards as it was already starting to get dark by then, We took phots o f the vehicle, the crane, the cargo and the vessel/ship. We le ft the port' (bolding rendered for emphasis). Thus, initial report was not a safe document to go by in the absence of the follow inspection/assessment and/or the final report thereof. Thirdly, the defendant commissioned another/parallel investigation, assessment and adjustment of the loss in 2023 without first recalling or withdrawing the repudiation letters (exhibits P2 and D4). Fourthly, the defendant repudiated the claim before obtaining the external loss adjuster's findings as per the preliminary and final reports in March 2023 and May 2023 (exhibits D5 and D6) respectively. Fifthly, the said reports (D5/D6) were obtained over one and a half years after the accident. To be precise, way after this suit was pending before this Court. More so, data and facts to make founded 24 professional conclusions had been distorted or wasted. Admittedly, the defendant's external loss assessor indicates that by then, "crucial evidence by sighting the damage whilst still on board the ship, have since been lost". Sixthly, none of the three reports (D4-D6) conclusively recommended for repudiation of the claim. To the contrary, the independent/external loss assessor's final report (exhibit D6) recommended; under the Policy Cover/Liability section (pages 14 and 15 of exhibit D6) that, "the insured cannot be blamed for the loss" and that, the "occurrence (accident) was therefore in our opinion fortuitous in as far as the insured is concerned and we have not found the insured in breach of any of the policy clauses. Further, the operating peril at the time of the loss is covered and under the circumstances, liability cannot be denied in this instance". Seventhly, the repudiation was reached at by the defendant prior to his receiving the TMA Weather Report (Data Delivery Report - exhibit D8). As it is evident, the subject report was procured on July 28th 2023. From the record of this Court, at that particular time, the Court had framed issues to be determined; witnesses' statements were already filed; and the suit fixed for next stages of hearing. 25 Eighthly, the mentioned tardiness on the defendant's part hereof (obtaining TMA's weather update), the subject report (exhibit D8) indicates in conclusion (Item/Clause 2) that around the period covered therein, seas were "rougher towards the southern parts of the coast (Mafia, Kilwa and surrounding seas)." Ninthly, the underwriter being the expert in insurance business and protocols, he appreciates the application of the doctrine of subrogation in claims where a third party is responsible for the loss against which the underwriter indemnifies or compensates the policyholder. {Suffish International Foods Processors Uganda L td a n d another v Egypt A ir Corporation [2003] 1 EA 330). However, in this matter, the defendant unjustifiably undermined his recovery avenues under the policy. Not even after being advised to do the needful by his professional advisor - DW3 (paragraph 3 at page 22 of exhibit D6). In addition to the above obligations, the insured-plaintiff was obliged to supply the necessary claim-supporting document to his underwriter­ defendant. It is on record that the latter demanded various documents from the plaintiff via email on November 30th, 2021 (exhibit D2). However, the defence pleadings and testimonies indicate that the plaintiff-insured accorded little cooperation to the defendant's external loss assessors. 26 Nevertheless, it has to be noted that the defendant did not advance such insured's adamancy as a ground for repudiation. Be that as it may, the cooperation hereof, as alluded to earlier, was being sought while the insured had filed this suit. Moreover, though DW1 (as was the case for other witnesses) testified acknowledging that the alleged negligent third party was known and indeed that the plaintiff had even initiated loss-recovery procedures (exhibit D3), the defendant opted not to pursue him through subrogation and/or joining him in the suit as a third party. However, no further evidences were given by him/them to justify the defendant's disinclination hereof. I need no overemphasis that parties should honour own parts of the bargain in the contracts they execute freely. I refer to the cases of Unilever Tanzania Ltd v Benedict Mkasa t/a Bema Enterprises, Civ. App. No. 41 of 2009; and Phiiipo Joseph Lukonde v Faraja A lly Said, Civ. App. No. 74 of 2019; Sim on Kicheie vA veiine M. Kiiawe, Civ. App. No. 160 of 2018; and Joseph Mbwiiiza vKobw a M oham edLyeseeio Msukuma & Others, Civ. App. No. 227 of 2019 (all unreported). Subsequently, in view of this whole evaluation, the second issue is also merited. That is, the defendant is hereby held to breach the insurance 27 contract between the parties herein by his unsubstantiated repudiation of the plaintiff's claim. To conclude, the Court is left with the third issue. This one relates to the reliefs parties are entitled to. With full conviction, this one is exceedingly dependent upon the findings of the two preceding issues. Evidently, the two issues relate to establishment of liability, rights and duties of the parties. Both have already been determined in affirmation. Incidentally, the beneficiary of such findings is the plaintiff. Definitely, now the Court embarks on translating such findings in terms of reliefs. It is also obvious that the dictates of common-sense momentously lead to excavation of the answer on whether or not the plaintiff is entitled to the remedies sought in this suit. One of the reliefs sought by the plaintiff (if not the major one) is for payment of Tshs 4,685,862,080.07 (equivalent of £ 275,723.00 and USD 1,674,861.00) being the repair costs of the crane; return transport charges of the crane for the Dar es Salaam - Hamburgh trip; and compensation for the loss of income following non-use of the crane with effect from the accident day to the filing of the suit. To address this limb of the plaintiff's demands I am inclined to discuss various aspects surrounding it. One, this category of claim is specific. In law, for the claimant to be granted specific 28 damages, he must discharge two duties satisfactorily. That is, he must specifically plead and prove them. See, for example, Bamprass Star Service Station Ltd v Mrs Fatuma Mwaie [2002] TLR 390; Zuberi Augustino vAnicet Mugabe [1W2\ T.L.R. 137; Stanbic Bank Tanzania Ltd v Abercrombie & Kent (T) Ltd, CoA Civil Appeal No. 21 of 2001 (unreported) that special damages require strict proof. In the matter at hand, while his pleadings adequately contain facts constituting such claims; the plaintiff did not discharge the other twin-duty. In principle, PW1 testified to the effect that the crane was insured at about Tshs 1.8bn/-; it suffered damage whose repair costs totaled £ 275,723; and it was to be repaired in Germany because there are no qualified mechanics locally, the round trip which would cost him USD 1,674,861. Nevertheless, he did not prove the crane's value by producing purchase receipts or valuation report thereof; its estimates of damage were not produced; and the crane's repair assessment was also not tendered. In other words, he did not prove to the Court how he arrived at the figures claimed under this section of the reliefs. Two, the alleged total claim-figure comprises of loss of profit. Apart from merely stating that the plaintiff lost income which would have been 29 generated from various projects which he had to forego because he had no crane for such jobs; PW1 did not produce in Court such contracts or cancellation of the engagements that he had failed to perform due to the damaged crane. Further, he did not tender any proof of income that the plaintiff used to earn by leasing the crane prior to its damage. Even the contract that he allegedly signed with Bollore was not pleaded or tendered in such connection. Three, proof of the lost income, as discussed hereof notwithstanding, standard marine policies do not cover loss of profit/income or business interruption. However, the insured may purchase extensions of cover to include such product, if it is available from the given underwriter. Hence, if the plaintiff wished to claim under the stated income, he was obliged to prove the subject extension under the policy first. Four, marine insurance may be a valued or unvalued contract. See, sections 27 and 28 of the English Marine Insurance >4c/supra). Hence, the principle of indemnity does not generally apply to the former category. However, it is applicable in unvalued marine insurance covers. Under insurance jurisprudence, a policy is valued if the amount payable for the claim for loss arises or at the time of maturity of the cover is predetermined/preset from inception of the policy. 30 In the present case, in the absence of proof of extent of damage as total loss or otherwise, the plaintiff lacks the legal justification for payment of his claim on the basis of the value at risk (Tshs 1.8b/-). In view of the above analysis of evidence and law, the onus of proving the special damages rested on the plaintiff (See section 110 of the Evidence Act, Cap 6 R.E 2022). In such connection, the plaintiff who claimed to be entitled to payment of money presented in his pleadings, was duty bound to account for full value and/or costs constituting the gross amount therein. In other words, despite pleading the specific damages, the plaintiff did not prove them precisely as required by the law \_Pauiina Samson Ndawavya v Theresia Thoams Madaha (sz/p/3)]. The foregoing omission on the part of the plaintiff notwithstanding, I am also mindful of the operating rule not to shift the burden of proof to the opposite party unless the party on whom the duty lies has his part discharged. However, in my view, such rule may be departed from on sufficiently justifiable reason(s). Hence, the rule is subject to exceptions. I take it justice that one of such exceptions is when the other (adverse) party admits to certain liability. In the current case, the defendant's third witness (DW3) tendered in Court, the detailed adjustments of the loss suffered by 31 the plaintiff in his final loss assessment report (exhibit D6). Precisely, for example, at page 18 of the report (headed as 'adjustment'); the assessor (DW3) presents that "the repair costs are commensurate with the reported and assessed damage". Such evidence was not controverted or contradicted by either party. In addition, after the whole adjustment exercise, the assessor recommended for total loss of the crane and payment of USD 342,779.00 to the insured-plaintiff. As if this expert opinion in his report was not enough, DW3 reiterated such amount of compensation in his evidence in chief (witness statement). In particular, paragraph 11 of such evidence, DW3 testifies as follows: " That in an y case, I consider the am ount o f USD 342,779.00 as the am ount recommended fo r compensation based on m y loss assessment a n d adjustment that I have detailed from page (sic) 16, 17, 18, 19, 20, 21 a n d 2 2 o f Exhibit 'D-6'." In the absence of any contrary evidence; and in view of the fact that the same testimony was given by or in favour of the defendant's case; and that the said witness was not declared hostile; I hold that the defendant technically admitted that the stated amount was his due liability against the 32 plaintiff. To conclude if the defendant indeed admits to such fact, I will make reference to sections 19, 20 and 22 of the Evidence A c t {supra\ Principally, admissions may be in the form of oral, documentary or written statements of the party to suit or his authorised agent. In particular, I quote section 22 in whole below for comprehension of my conviction hereof. It provides as follows; "Statements made b y persons to whom a p a rty to the su it has expressly referred fo r information in reference to a m atter in dispute, are adm issions" court's emphasis). In line with the citation above, the defendant not only mentioned DW3 as his duly appointed professional assessor (paras 12 and 10 of the WSD and D W l's witness statement), but he also paraded him in Court for the testimony-session. In addition, his professional report was tendered and relied on by the defendant in the trial. I am aware that circumstances of admissions under the Evidence A c t {supra} differ from conditions leading to judgement on admission under the Civil Procedure Code, Cap 33 R.E 2019 [see, Fu ll Gospel Bible Fellowship Church vs Eigoodness EmmanuelRwatto, Civil Rev, No. 4 of 2021(unreported)]. 33 In the former legislation, for example, admissions are not conclusive proof of the matter admitted (section 26). But, in the present case, the defendant has gone further and ratified DW3 averments in the form of testimony given under oath before this Court. I am, thus, loath to hold that the defendant would dissociate himself from such evidence. On such note and convictions expressed earlier in this judgment, the plaintiff is, henceforth, entitled to such unequivocally admitted amount (USD 342,779.00) by the defendant in settlement of his claim hereof. I proceed to so allow it. Furthermore, the plaintiff claimed for additional reliefs. By way of recap, such remedies are: one, interest at commercial rate; two, court-rate interest of 12% on decretal sum from the date of judgement to full settlement thereof; three, cost of the suit; four a n d last, any discretionary reliefs by the Court. In determining the above additional reliefs, I will be brief here. Starting with commercial interest, I have gone through the entire documents of the plaintiff to find the basis of this claim to no avail. Indeed, the plaintiff does not state the exact interest rate to be awarded. Predominantly, apart from stating it in the pleadings, the plaintiff did not give any proof thereof howsoever. P W l's main testimony did not 34 substantiate this remedy either. Further, during oral testimony, PW1 did not mention how the plaintiff was legally entitled to it, even in passing. Primarily, it is the dictates of law that claims for interest must be pleaded, particularised and proved for them to pass. See, for instance, National Insurance Corporation (T) Lim ited k China Civil Engineering Construction Corporation, Civil Appeal No. 119 of 2004; Zanzibar Telecom L td v. Petrofuel Tanzania Ltd, Civil Appeal No. 69 of 2014; A lfred Fundi v. Geied Mango a n d Two Others, Civil Appeal No. 49 of 2017; and A m i Tanzania Lim ited v Prosper Joseph Mseie, Civ. App. No. 159 of 2020 (all unreported). The Court is heedful of the principles laid down in Yara Tanzania Lim ited v Ikuwo Genera! Enterprises Limited, Civil Appeal No.309 of 2019; and A m ani Safari Adventure Lim ited v Petrofuei (T) Limited, Civil Appeal No. 67 OF 2023 (both unreported) that: on the basis of mercantile practices, interest may be granted to the winning litigant even where he has not proved it specifically. Nevertheless, in the matter at hand, the plaintiff somewhat contributed to his plight. It is on record that he did not accord the defendant with the necessary cooperation needed in the processing of the claim. Hereof, I am 35 concerned with the pre-repudiation demand of necessary documents from him by the defendant and proposal for the parties' meeting. Throughout the trial, the plaintiff did not prove that he supplied all the required documents (as requested or instructed by his insurer herein) for the latter to act accordingly. Further, the Court has been availed with weighty evidence to the effect that the defendant timely deputed the assessor to the claim; demanded claim-supporting documents from the plaintiff; carried on preliminary assessment of the loss; and invited the plaintiff to a meeting (exhibit D2); but the plaintiff reciprocated with reserved cooperation. On such basis therefore, the defendant cannot be blamed fully for the entire pack of circumstances of this suit. Hence, the plaintiff's prayer for interest is accordingly disallowed. However, the Court awards the plaintiff 7% interest on the decretal sum from the date of this judgment to full payment together with costs of this suit. To sum up, the following reliefs are granted to the plaintiff: payment of USD 342,779.00 being compensation regarding the insurance claim; interest at 7% from the day of this judgment to full settlement of the decree; and his costs incurred hereof. In the upshot, this case accordingly succeeds to the scope stated in this judgment. It is so ordered. The right of appeal is explained to parties. Judge April 30th, 2024 Judgement delivered this 30th day of April 2024 in the presence of Mr. Fikiri Liganga and Ms. Bertha Nanyaro, Advocates for the plaintiff defendant respectively. C.K.K. Morris Judge April 30 th, 2024