QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ENGELHART CTP (US) LLC
|- and -
|LLOYD'S SYNDICATE 1221 FOR THE 2014 YEAR OF ACCOUNT & 6 OTHERS
LUKE PARSONS QC and BEN GARDNER (instructed by Kennedys) for the Defendants
Hearing date: 27 March 2018
Crown Copyright ©
Sir Ross Cranston:
The insurance policy
"On goods and/or merchandise and/or cargo and/or interest of all descriptions, that being the property of the Assured and/or for which they are responsible … including but not limited to Grain and oil Seeds, Soyabeans, Sugar and Ethanol, Metals, power and Gas Oil … all whilst in transit and/or in store elsewhere anywhere in the World."
"(a) 'All Risks' in accordance with the Institute Cargo Clauses (A) CL 382 (1.1.09) … and/or American Institute Cargo Clauses (Sept. 1, 1965) 32B-10 but with Clause No. 3 amended to read as follows: 'Against all risks of physical loss of or damage to the subject-matter insured from any external cause' …"
"This insurance contract is subject to the above conditions and the commodity specific insuring conditions but it is understood and agreed that in all cases, the most favourable conditions will benefit the Assured notwithstanding what is mentioned on the insurance certificate and/or insurance declaration."
"This insurance is subject to the above Operative Conditions and where applicable the below commodity section insuring conditions. It is noted and agreed that unless otherwise declared to the contrary, the broadest coverage shall apply."
"As per operative conditions but also extended at the sole option of the Assured to include leakage and/or shortage and/or difference in weight and/or difference in volume as is appropriate howsoever arising.
Claims for leakage and/or shortage and/or difference in weight and/or difference in volume as is appropriate shall be assessed by a comparison of shipped and delivered weights or shipped and delivered volumes … as evidenced by an independent recognised surveyor which shall be binding on and accepted by Underwriters and the Assured for all purposes."
"Notwithstanding that the terms of purchase may provide that the responsibility of the Sellers and/or their Insurer shall cease at any point during transit it is agreed that cover hereunder shall operate for the whole transit per policy operative conditions…Where, by agreement with the Suppliers, the Assured accepts responsibility for the goods ex Suppliers' premises, cover commences when the goods leave such premises or at such time at which Assured takes a financial interest in the goods, whichever is the earlier."
"Concealed Damage Clause
It is agreed that any loss or damage discovered on removal the final packing shall be deemed to have occurred during the transit insured hereunder (and irrespective of attachment of Assured's interest) and shall be paid for accordingly unless proof conclusive to the contrary be established, it being understood that any containers, cases and / or packages showing signs of damage are to be opened as soon as practicable.
Notwithstanding anything contained herein to the contrary where Cargo, insured hereunder, is carried in Containers, it is agreed, as between the Assured and Insurers, that the seaworthiness and/or cargoworthiness of the Container is hereby admitted.
It is agreed that this Insurance contract is also to pay for shortage of contents (meaning thereby the difference between the number of packages as per shippers and/or suppliers invoice and/or packing list loaded or alleged to have been laden in the container and/or trailer and/or vehicle load and the count of packages removed therefrom by the Assured and / or their agent at time of container emptying) notwithstanding that seals may appear intact, and/or any other loss and/or damage including but not limited to cargo and/or container sweat howsoever arising.
This insurance contract covers physical loss of or damage to goods and/or merchandise insured hereunder through the acceptance by the Assured and/or Shippers of fraudulent documents of title, including but not limited to Bill(s) of Lading and/or Shipping Receipt(s) and/or Messenger Receipt(s) and/or shipping documents and/or Warehouse Receipts and/or other document(s) of title.
This insurance contract is also to cover physical loss of or damage to goods insured caused by utilisation of legitimate Bill(s) of lading and/or other documents of title without the authorisation and/or consent of the Assured or their Agents and/or Shippers."
"…Over the years the policy wording developed …but the underlying philosophy throughout was to procure a broad and flexible contract providing cover against all risks of loss and damage to oil in which Glencore acquired an interest wherever it was situated. As the insurers were aware, Glencore's involvement in the purchase and sale of crude oil and products was solely as a trader….
 As might be expected in these circumstances the contract was worded in very broad terms."
"When construed in their context, the words were not, in my opinion, intended to provide cover for a measurement error in circumstances where there is no loss of the cargo. In short, they were not intended to provide cover against paper losses which it is conceived would not ordinarily be covered in a policy of this kind."
"This policy covers loss or damage occasioned through the acceptance by the Assured and/or their agents or shippers of fraudulent Bills of Lading and/or shipping receipts and/or messenger receipts."
"The practice is potentially very dangerous and one which is strongly deprecated by the Joint Cargo Committee. It could have the effect of committing Underwriters to financial losses unrelated to any maritime perils and where no cargo of any nature exists. Underwriters are strongly recommended not to agree to include this undesirable form in any contract. In addition any amendments of this nature should be agreed by all underwriters on the contract."
The claimant's case