AXL Resources Ltd v Antares Underwriting Services Ltd & Anor

This is an application by the claimant, AXL Resources Ltd (“the Claimant”), for summary judgement on the whole of its claim against the defendants, Antares Underwriting Services Limited (underwriting as Antares Syndicate 1274) and Catlin Underwriting Services Limited (underwriting as Catlin Syndicate 2003) (together “the Defendants”). It is common ground that the Claimant is a company incorporated in the Bahamas which carries on the business of metal trading and that the Defendants are underwriters carrying on business at Lloyd’s of London.

The principal amount claimed is US$1,825,415.01, together with a further amount claimed in respect of legal costs of €12,000. So far as the latter sum is concerned, Miss Sara Cockerill, counsel on behalf of the Claimant, has accepted that the issues raised are not suitable for determination under CPR 24. The Claimant also claims interest from 8 February 2009, a month after the claim was made, by which date the Claimant contends the claim should have been paid.

The application for summary judgment is said to raise a point of law which the Defendants say is of interest to the market, namely the true construction of a condition in a Lloyd’s Marine Open Cargo policy which provided “Excluding Mysterious Disappearance and Stocktaking Losses”. According to the Defendants’ evidence, this clause is commonly found in many cargo policies written in the London market and elsewhere.

The evidence before the Court on the hearing of the Part 24 application on 19 October 2010, can be briefly summarised as follows:

Sometime between 21 October 2008 and 27 January 2009 20 MT of cobalt cathodes in 2 x 40 drum/10 pallet lots numbered 64755 and 32009 (“the cobalt”) owned by the Claimant went missing from its attested location in an LME/LIFFE approved bonded warehouse run by Vollers Belgium N.V. (“Vollers”) in Antwerp. Each drum was about the size of an oil drum, weighed 250kg and was painted orange. The cobalt was the only cobalt which the Claimant had in store with Vollers at the time.

The cobalt was stored in a room (“the heating locker”) near the entrance of Vollers’ warehouse. Aside from two other drums of material it was the only material stored in the heating locker. There was no evidence of forcible entry.

The Claimant’s evidence is that the cobalt would have taken about an hour to move from its location using a fork lift truck.

On 27 January 2009 Vollers, on accessing the heating locker to prepare for a shipment of part of the cobalt on the Claimant’s instructions, found that the cobalt was missing and so informed the Claimant.

Vollers reported the loss as a theft to the Belgian police on the same date and, since then, the loss of the cobalt has been the subject of an ongoing criminal theft investigation by the Belgian and Dutch police and by the Antwerp Court.

On 9 March 2010 the Claimant’s Belgian lawyer, a Mr. Dirk Noels, inspected the police file. As a party civilly interested in the criminal investigation, the Claimant was entitled to do so. The review of the police file indicated that:

The cobalt was stored in the heating locker for extra security after information was received from the Port Police Authorities that thieves were looking for precious metals such as cobalt.

In theory, access to the warehouse was secured by a locked door protected by an alarm code, while access to the heating locker was then by means of doors, which were blocked by large bags weighing about one ton.

Between 23 December 2008 and 26 January 2009, the alarm system at Vollers was out of action.

Mobile phone records place two individuals with previous convictions for theft in the area during the period when the theft of the cobalt took place. These individuals had also in the past approached Vollers’ employees for access to the security code for the warehouse.

The investigation had uncovered evidence of other persons whose mobile phone records indicate a link to the individuals mentioned above, making inquiries relative to the sale of 20 tonnes of cobalt in the period after the theft of the cobalt.

According to a number of newspaper reports, over the weekend of 11/12 September 2010, the Belgian police arrested a gang which had been engaged in various criminal activities including: “… the theft of 20 tonnes of cobalt in early 2009 at a company in the port of Antwerp”.

The cobalt was insured under a contract of insurance dated 4 July 2008 under which the Defendants agreed to insure the Claimant under a Marine Open Cargo Cover, by which the Defendants agreed to accept risks and declarations attaching from 8 July 2008 to 7 July 2009. It is not in dispute (Footnote: ¹) that the policy was an all risks policy, written on the terms of the Institute Cargo Clauses (A), which covered “all risks of loss and damage to the subject matter insured” (subject to the exceptions defined therein) and that the policy excluded “Mysterious Disappearance and Stocktaking Losses”. The value and location of the cobalt as at 31 July 2008 had been declared to the Defendants on 11 September 2008 in the sum of US$1,825,415.01, based on the declared purchase cost.

On 27 January 2009 the Claimant notified the Defendants of the loss and made a claim under the insurance policy. Letters before action were sent by the Claimant’s previous solicitors in March and April 2010. The Claim form was issued on 25 June 2010 and served with the Particulars of Claim on 29 June 2010. The Defendants have refused to pay out under the policy.

Although some of the above facts were not formally admitted by the Defendants, I am satisfied that the Claimant has established them on the balance of probabilities and that the Defendants have no reasonable prospect of establishing the contrary at trial. Indeed, the above factual summary was not for practical purposes in dispute, the arguments between the parties being focussed elsewhere.

At the hearing, in the context of argument about the relevant period, if any, in respect of which interest was payable, I was told by Mr. Guy Blackwood, counsel for the Defendants, on instructions, that their loss adjuster had attended Vollers’ premises but had not been able to gather information. It was common ground that this summary did not adequately cover the facts, and, accordingly:

on 25 October 2010, I was supplied by the Claimant with a copy of the loss adjuster’s report; and

on 29 October 2010, I was supplied by the Defendants with a copy of a statement from the loss adjuster.

On 5 November 2010, I was sent by Miss Cockerill a further third witness statement from Mr. Dirk Noels, the Claimant’s Belgian lawyer. On behalf of the Claimant, she applied for permission to adduce that statement in support of the Claimant’s application. Mr. Blackwood, in a letter to the Court dated 5 November 2010, objected to the statement being received in evidence. He submitted that:

In my judgment, in the absence of any request by the Defendants to respond to Mr. Noels’ third witness statement, or any suggestion that they are prejudiced by its introduction, I should allow the Claimant to rely on the statement notwithstanding its late service. In so far as material, it reads as follows:

The Claimant’s position, as presented by Miss Cockerill in her submissions, is that:

Since the policy is an all risks policy, it is for the insured to prove no more than the fact of its accidental loss. The insured does not have to disprove “mysterious disappearance”, i.e. prove that the exclusion does not apply, or even actually to prove a specific cause of loss, such as theft.

It is for the Defendants to adduce evidence that the loss was in fact caused by something which comes within the “mysterious disappearance” exclusion. If they were to do so, the burden might then shift back to the Claimant to prove an actual cause. But, in the present case, where there has been no attempt by the Defendants to show that the loss was a “mysterious disappearance”, whatever that phrase may mean, the Claimant need actually do no more than prove a loss caused by fortuity.

Here the Defendants have done nothing to suggest, let alone show, an explanation for the loss of the cobalt that could genuinely constitute a mysterious disappearance. Accordingly, the Defendants have failed to show a real prospect of being able to defend the claim at trial and the Claimant is entitled to summary judgment.

Moreover, in the circumstances set out at ii) and iii) above, there is no need for the Court to decide what is meant by the phrase “mysterious disappearance”. The phrase is apt to cover situations such as where no obvious cause appears for the loss of the property, or where goods are inferentially mislaid, as with stocktaking losses, or, for example, when a ring cannot be found, and it is not clear when it was last seen. But the exclusion can only be applicable in the absence of evidence of a more credible explanation. Thus where, as here, theft is, on the evidence (which need not be direct), a credible and believable cause of the disappearance, the mysterious disappearance exclusion will not apply.

The Defendants’ position, as presented by Mr. Blackwood in his submissions, is as follows:

The Claimant must prove on the balance of probabilities that the disappearance was caused by theft. This they have not done on the evidence before the Court on the Part 24 application.

The Defendants are entitled to require the Claimant to prove the circumstances of the loss. The Defendants need the opportunity to review the materials collated in criminal proceedings which are presently underway in Belgium before this claim is adjudicated upon. They have not had access to the criminal files in Belgium and for the purposes of this application it must be assumed that they are not entitled to such access, as that is the advice which they have received.

The words “mysterious disappearance” should bear their ordinary and natural meaning, viz. a loss which arises from events which are not well defined in time and place or a loss which arises in circumstances which arouse speculation or are hard to explain.

In the present circumstances, even on the Claimant’s own factual case the loss is not sufficiently well defined in time and place. Thus the Defendants have a real prospect of defending the claim on the basis that the loss came within the scope of the “mysterious disappearance” clause. That is because:

The loss is said to have occurred at some unknown time during a period which exceeds three months.

The loss is said to be attributable to person or persons unknown.

There is no evidence of or allegations of forcible entry.

The whereabouts of the cobalt remains unknown.

The Belgian criminal investigation has yet to come to a conclusion. The outcome of that investigation is, therefore, unknown.

No records of cargo movements to and from the warehouse have been made available.

The Claimant’s case is that it would have taken a professional storage company about 1 hour to move the cobalt from its secure location using a fork-lift truck. If correct, this only adds to the mysterious circumstances in which the loss occurred. Even if the Claimant were correct, and the effect of the “mysterious disappearance” clause was to distinguish between theft and lost/ mislaid, the amount of time and high degree of visibility which the Claimant says would have been involved in moving the cobalt does not point only to theft; an equally plausible explanation is that the cobalt was shipped in error to the wrong location/consignee.

Even if the court were not persuaded that the Defendants have a real prospect of defending the claim on the basis that the loss came within the scope of the “mysterious disappearance” clause, there are compelling reasons (Footnote: ³) why the claim should not be finally determined here and now:

The proper construction of the “mysterious disappearance” clause is a point of general importance to the market.

The Belgian criminal investigation has yet to run its course.

The Defendants have not been able to review evidence which may well have a bearing on the claim (the sorts of documents which the Defendants would like to review are records of cargo movements to and from the warehouse, internal stocktaking records, instructions given to Vollers by the Claimant etc). By contrast, the Claimant has been able to review the file. Evidence collated in that investigation may well have an impact on this claim.

Thus determination of this claim should wait until the criminal investigation in Belgium has come to a conclusion (which is likely to be in the next few months).

Given my view as to the state of the evidence on this application (to which I refer below), it is not actually necessary for me to decide the threshold point raised by Miss Cockerill in relation to the burden of proof, since it is only in circumstances where there is insufficient evidence as to how the loss was caused, that it is necessary to analyse the matter in terms of the burden of proof.

However, although not necessary for my decision, I accept her submission that, on the wording of this particular all risks policy:

The onus is on the insured to establish that the loss occurred accidentally;

but that once he has done so, the burden of proof is on insurers to bring themselves within any exception in the policy; see MacGillivray paragraphs 19-006 – 19-007:

My reasons may be summarised as follows.

How a mysterious disappearance clause will work in a particular case, and upon which party the particular burden of proof lies, must necessarily depend upon its context, and the particular wording of the clause in question. In Colinvaux’ s Law of Insurance (Footnote: ⁴), the position is stated to be as follows:

Mr. Blackwood relied upon the above passage and the decision in Widefree to support his argument that the burden of proof lay upon the Claimants to prove the circumstances of the loss, and, effectively, that it was attributable to theft and thus did not fall with the exclusion clause. However, the wording of the clause in that case clearly imposed an obligation on the assured to prove “the date and circumstances of any loss”. There is no such provision in the present case. That being so, it seems to me that the distinction which Colinvaux makes in the quoted passage between an all risks and property and liability policies is an important one. The nature of an all risks policy is to enable an insured to claim without proving more than the fact of the loss.

Thus, in my judgment, what I have to decide for the purposes of this Part 24 application is not whether the Claimant has proved theft of the cobalt, still less whether it has proved the dates on which, or the circumstances in which, or the persons by whom the cobalt was stolen, but rather whether the Defendants have a real prospect of showing at trial that the loss was in fact caused by something which comes within the “mysterious disappearance” exclusion. This they could, of course, do by either:

persuading the Court that the evidence adduced by the Claimant is so ambivalent in its nature as to how the loss was caused, that it leaves open the real possibility that the loss was caused by “mysterious disappearance” - such as, for example, its misdelivery or unauthorised delivery to an unknown recipient or purchaser, or its removal by Vollers to a different warehouse; and/or

adducing evidence of its own to show that there is a real possibility that the loss was caused by that type of “mysterious disappearance”.

I accept Mr. Blackwood’s submission that the words “mysterious disappearance” should bear their ordinary and natural meaning. In my judgment, precisely what could constitute such a disappearance will depend on the nature of the property in question and the circumstances of the particular loss. Thus 20 or 30 pigs may “mysteriously disappear” by wandering off through an open gate perhaps to nearby woodland, or to their deaths on the roads, but, if 1,029 pigs disappear from a farm of approximately 3000 pigs in unknown circumstances, “the numbers simply defy a finding of mysterious disappearance.” (Footnote: ⁹)

So in my judgment, one does not need to have an all-embracing or exclusive definition of the circumstances comprising “mysterious disappearance”. It will depend on the context. Normally it will involve a situation where the cause of the loss cannot be identified or the circumstances in which the property has been lost arouse speculation or are hard to explain.

For present purposes there is no need to seek to define the phrase more precisely.

On the basis of:

the Claimant’s evidence in the form originally before the Court at the hearing of the application, as contained in the witness statement of Edmund Stanley (a partner in Elborne Mitchell, the Claimant’s solicitors) dated 15 September 2010, and in Mr. Dirk Noels’ statement of 9 September 2010; and

the Defendants’ evidence as contained in the witness statement of Christopher Dunn (a partner in Waltons & Morse, the Defendants’ solicitors) dated 15 September 2010;

Furthermore, if it were necessary for me to do so (because I was wrong in my conclusion as to the burden of proof), I would have found that, in any event, the Defendants had no real prospect of succeeding at trial in the defence that the Claimant had not proved that the loss of the cobalt was caused by theft, as opposed to as a result of “mysterious disappearance”, because the latter had not or could not prove the necessary date and other details of the theft. In my judgment, given the circumstances of the loss, the physical state and location of the cobalt, and the other evidence, the only realistic inference that can be drawn here is that the loss was caused by theft. In my judgment that was the position even on the original evidence before me, but was clearly confirmed by the subsequent statement of Mr. Dirk Noels, which I was sent after the hearing. That evidence made it clear that at least two suspects had confessed to the theft of the cobalt.

Contrary to Mr. Blackwood’s alternative submission, I see no compelling reason why the claim should not be finally determined here and now on a summary basis. On the contrary, I see no reason why insurers should be entitled to have the privilege of postponing payment of a claim under an all risks policy for any longer than they have already.

As to Mr. Blackwood’s various arguments in support of this submission :

I have held that the “mysterious disappearance” clause is to be construed according to the normal meaning of those words, and that what constitutes such a loss will depend upon the nature of the property insured and the circumstances of the loss. I cannot see that a full trial will shed any greater light on what is said to be a point of general importance to the market.

I see no reason why the Claimant should have to await the result of the Belgian criminal investigation, let alone the outcome of any criminal trial, before being paid under the policy. Theoretically it is possible that no-one will in the event be found guilty of theft; for example, the suspects who have already confessed may say that they were coerced by others into giving untrue confessions. But that is beside the point. There is nothing in the evidence which raises the slightest possibility of the loss of the cobalt being attributable to some administrative incompetence on the part of Vollers, or, worse, to some dishonest collusive participation on the part of the Claimant in its disappearance (and, indeed, as to the latter, none was suggested). Whilst the course of the criminal investigation may better inform both parties what claims exist against others, in my judgment there is no real prospect that it may reveal that the Defendants are entitled to invoke the exclusion clause.

Accordingly, in my judgment, the Claimant is entitled to summary judgment on its claim.

The quantum of the Claimant’s claim is not in dispute. It has acknowledged that a small adjustment must be made to the sum set out in the Particulars of Claim and application notice to reflect a small sample removed in late 2008. Thus the Claimant’s principal claim is for US$1,825,415.01.

For the purposes of its claim to interest, the Claimant’s case is that the claim should have been paid by 28 February 2009, a month after the claim was made. Miss Cockerill submits that it has been apparent from the first that this was no “mysterious disappearance”; and that a month is a more than reasonable time to investigate the claim and approve it for payment.

Mr. Blackwood relied upon Quorum v. Schramm (Footnote: ¹⁰) (and the other authorities referred to therein), where the court reviewed the authorities on interest, noting that it is proper to allow insurers some time to consider the claim before interest should start to accrue, and that that time varies according to the way in which the claim is presented and the circumstances of the case. He referred to the fact that here the claim notification of 27 January 2009 was very brief and provided almost no details about the loss. Accordingly, he submitted that, if the Claimant’s claim were to succeed, interest should not start to accrue until much later; a letter before action was not sent before 16 March 2010 and the claim was an unusual one, given the uncertainties which he submitted remained about the circumstances surrounding the loss.

In my judgment, having regard to the particular circumstances of the loss and the nature of the claim, I exercise my discretion to award interest as from 1 April 2009. I choose this date to reflect the fact that the Defendants are entitled to some time to consider the claim before interest should start to accrue. Although the claim was made on 27 January 2009, their loss adjusters’ report was not signed until 12 March 2009, and I have allowed them some time after that date to consider their position.

As to rate of interest, Miss Cockerill submitted that, in the current financial climate, the appropriate rate of interest to be applied to the Claimant’s claims is US Prime rate plus 1%. However, whilst sympathetic to the submission that the cost of borrowing in the current climate may realistically well be greater than US Prime rate, I indicated that, if she wanted to justify a higher rate than US Prime (Footnote: ¹¹), she would need to produce evidence or other materials to support the appropriate rate claimed. In the event she indicated that the Claimant was content with US Prime rate.

I will hear submissions from counsel as to the quantum of interest and other post-judgment matters.