NISSIM ISAAC BEKHOR Vs. HAJI SULTANALLI SHUSTARY

JUDGEMENT

(1.) On the 9th of June 1914, the defendant-firm, carrying on business in Bombay, purchased from the plaintiff, a merchant, also carrying on business in Bombay, five tons round copper bottoms, c.i.f. Mahomerah, July shipment, by a contract in writing at the price and on the terms mentioned in the said contract. The defendants agreed to pay for the copper in Bombay against Bills of lading. The copper was shipped on board the steamer Tangistan on or about the 28th day of July 1914, and the plaintiff says he obtained the relative Bills of lading and also insured the copper against the ordinary marine risks. On the 5th day of August, in consequence of war having broken out between Great Britain and Germany, the plaintiff s agent in England insured the copper against war risks and paid 10 per cent. premium for such insurance. The documents arrived in Bombay on the 7th of September, whereupon, the plaintiff delivered three invoices for the copper to the defendants and called upon them to pay the invoice price and also the aforesaid premium for insurance against war risks. The defendants refused to pay the amount demanded on the ground that they were not liable to pay the aforesaid premium. By another contract in writing, dated the 17th July 1914, the defendants purchased from the plaintiff 900 bags of sugar, c.i.f. Mahomerah, July shipment, at the price and on the terms mentioned in the said contract. The defendants also agreed to pay for the sugar in Bombay against the Bills of lading. The plaintiff alleges that, in performance of the contract, he got the sugar shipped at Hamburg on board the steamer Nicomedia on the 28th of July 1914, and obtained the relative Bills of lading, and also insured the sugar against the ordinary marine risks. On the 29th of July, his agent in England insured the sugar against war risks and paid half per cent. premium for such insurance. He further alleges that the Bills of lading relating to the sugar arrived in Bombay on the 15th day of August. Thereupon, he delivered to the defendants an invoice of the sugar and called upon them to pay the sum of Rs. 19251-15-3, being the price of the sugar inclusive of the aforesaid premium for insurance against war risks. He further alleges that he has tendered the Bills of lading for the sugar and the policy of insurance against war risks to the defendants, but they have failed to pay the amount claimed. Accordingly, he asks for a decree in this suit for the sum of Rs. 8878-4-11, being the price of the copper with interest at 9 per cent. from the 7th of September, 1914, and the sum of Rs. 19251-15-3, being the price of the sugar with interest at 9 per cent. from the 22nd of August 1914.

(2.) The defendants in their written statement deny that they were liable to pay the 10 per cent. premium for insurance of the copper against war risks. As a matter of fact, since the suit was filed, the defendants have paid the whole of the plaintiff s claim in respect of the copper without prejudice to their contentions in this suit, in order to get delivery of the copper; and if their contentions are correct they will be entitled to a refund of the amount paid for the insurance against war risks. With regard to the sugar the defendants do not admit that the plaintiff got the sugar shipped at Hamburg on the 28th of July or that the plaintiff obtained the relative Bills of lading in respect of such shipment. Finally, they contend that, in view of the war and the proclamations that have been issued from time to time by the British Government, the contract between the parties has become impossible of performance.

(3.) Exhibits A and B are the contracts for the purchase of copper and sugar respectively. They are what are called c.i.f. contracts under which the purchaser is bound to pay the stated price for the goods on tender of the documents showing that the goods have been shipped for transit to the port of destination, duly insured according to the terms of the contract, and that freight has been paid. I think it is clear that under these contracts the seller was not bound to insure against war risks. This was admitted by defendants counsel, and by the plaintiff in his circular of the 28th July 1914 addressed to his constituents (Ex. D.) whereby he drew their attention to the necessity of insuring sugar indented through him against war risks in view of the political situation in Europe. He also asked them to note that if he did not receive any instructions by 6 p.m., he would effect the necessary insurance against war risks on their sugar, and debit them with the extra premiums. Without receiving any instructions from the defendants the plaintiff cabled on the 28th to his agent in England to effect insurance against war risks, and I find that he was not justified in debiting the defendants with extra premiums in the absence of express instructions from them which, as a matter of fact, were not given. The sugar indented for under Ex. B was insured against war risks at 1/2% premium but it appears now that the condition for such insurance was that the sugar was to be shipped before the 1st August. The copper indented for under Ex. A was not insured until the 5th August when, owing to war having been declared between Great Britain and Germany, 10% premium was charged by the under-writers.