‘This insurance shall be subject to the exclusive jurisdiction of the French Courts and shall be subject to French law and practice, except as may be expressly provided herein to the contrary or where local insurance policy(ies) are issued or, at the insured option and where expressly required, this insurance can be subject to the jurisdiction of the English Courts and subject to English law and practice.’
‘… DELIVERY TERMS AND CONDITIONS Delivery of Goods is made by rail cars and/or by trucks. DAT [Delivered at Terminal] sea trade port, Ukraine at buyer’s option (to be specified in addendums to the contract), hereinafter referred to as ‘Place of Delivery’, acc Incoterms-2010 … The title of ownership for the Commodity is transferred from the Seller to the Buyer at the moment when the Commodity is accepted at the Place of Delivery. PAYMENT: Period of transferring goods at internal warehouses from seller to buyer. To be specified in addendums to the contract. Payment for the Commodity to be made in US dollars. … OTHER CONDITIONS AND ARBITRATION This contract is governed by English Law…’
‘DAT Odessa sea trade port and/or Chernomorsk sea trade port and/or Yuzhny sea trade port, Ukraine acc. Incoterms 2010 Or DAT Izmail sea trade port, Ukraine acc. Incoterms 2010 At buyer’s option’
‘DAP [Delivered at Place] Odessa sea trade port and/or Chernomorsk sea trade port and/or Yuzhny sea trade port, Ukraine acc. Incoterms-2010 at buyer’s option.’
‘Period of transferring goods at internal warehouses from seller to buyer: 29/11/201-15/12/2018 Payment for the Commodity to be made in US dollars. 80% of the goods value to be considered as offset of relevant prepaid amount under Commodity Supply Prepayment Agreement dated29 March 2018 between Quadra Commodities SA and Agri Finance S.A. Scanned copies of the following documents to be presented: -. Commercial invoice for 80% of goods value; -. Originals of warehouse receipt issued by the warehouse where the commodity is stored; -. Quality report issued by the warehouse that issues the warehouse receipt. In order to fix fact of offset, parties should sign an act of offset confirming goods value and quantity. Balance payment from the value of delivered and accepted goods by bank transfer to the Seller’s bank account within 3 (three) banking days, against the following documents for each lot of Goods: -. List of discharged wagons/trucks presented by the port warehouse -. Seller’s invoice -. Notice of forwarding agent/customs broker at the Place of Destination noting sufficiency of the Seller’s documents necessary for the customs clearance of the Commodity for export…’
‘Final quantity (weight) – final at acceptance\discharge of the transport at the Izmail Elevator LLC (Terminal) according to the verified scales of the Terminal.’
‘… 100% net cash against presentation of following originals documents in Buyers’ representative office in Odessa at Buyers’ option. Payment will be done within 3 banking days: -. Seller’s invoice -. Port Silo Warehouse receipt -. Act of transfer title ownership of the invoiced Goods to the Buyer issued by the Seller -. Written confirmation received from Gravita Commodities LTD, stating the acceptance/availability of the Goods at Izmail Elevator LLC (Terminal) -. Letter from the Seller’s forwarding agent (Gravita Commodities LTD), stating they have received all documents necessary for export of the Goods -. Quality report/certificate issued by Izmail Elevator Laboratory and/or first class GAFTA approved surveyor for Seller’s choice and account. … Title of goods passes to the buyers upon 100 pct payment.’
‘Ref. Storage agreement No. ZE-13-1 dd 13.07.17 WAREHOUSE RECEIPT We, Zaplazsky Elevator LLC (Warehouse), hereby confirm that as of 24.09.2018 there are 5 000,000 (say: five thousand MT 000) of Ukrainian Corn crop 2018 stored at its warehouses, located at 66521, Molodizhna str., 97, v Soltanivka, Lubashivsky district, Odessa Region, Ukraine. Quality – as per the Analysis card No. 185 dd 24.09.18. These Goods are the property of Quadra Commodities SA and we acknowledge that they are financed and pledged to Zurcher Kantonalbank. Furthermore, the Warehouse irrevocably undertakes to release Goods only against prior written instruction from Zurcher Kantonalbank, as the Goods are held to its order for East Oils Ukraine LLC’s account (the Forwarder). This is the only warehouse receipt issued for these Goods and we hold the original of this document at Zurcher Kantonalbank disposal until Goods are fully released and undertake to remit the same warehouse receipt to Zurcher Kantonalbank upon request. [signed by ‘Director’ of Zaplazsky Elevator]’
‘In essence, I understand from my investigations that the Agroinvest Fraud was a scheme whereby Agroinvest Group would obtain grain, corn and sunflower seeds from local farmers, which were stored in a number of elevators, that the group owned throughout the Odessa region of Southern Ukraine and the fraud was then perpetrated by the Agroinvest Group pledging and/or selling the same parcels of agricultural commodity products to multiple traders, via the issuance of fraudulent warehouse receipts. It is apparent from my enquiries, with trade and industry sources in Ukraine and also from press articles, that the same parcel of grain or seeds may have been pledged and/or sold many times over to different traders.’
‘When one examines the authorities therefore one sees that the court is concerned to analyse by reference to the terms of the policy what is the subject of the insurance; to analyse what insurable interest a person has in the subject of the policy; and to consider whether the subject “embraces that insurable interest” in the words of Blackburn J in Anderson v Morice(1875) 10 CP 609 at 622. Where on the wording of the policy the subject is not absolutely clear cut, it sometimes assists to identify the subject to ask what insurable interest the person has, but essentially the subject is defined by the words of the policy. It follows that in some cases the subject is so clear, that even when the insured can identify some insurable interest that it might have had, it will be held that the insured has failed to cover that interest by the policy. In other cases what is “embraced” within the subject of the insurance is less clear-cut, and in those circumstances the court may be able to say that the insurable interest is embraced within the subject of the insurance. The different elements of subject, insurable interest, and value are separate but impact one on the other.’
‘4(1) Every contract of marine insurance by way of gaming or wagering is void. (2) A contract of marine insurance is deemed to be a gaming or wagering contract – (a) where the assured has not an insurable interest as defined by this Act, and the contract is entered into with no expectation of acquiring such an interest; or (b) where the policy is made “interest or no interest” or “without further proof of interest than the policy itself”, or “without benefit of salvage to the insurer”, or subject to any other like term … 5(1) Subject to the provisions of this Act, every person has an insurable interest who is interested in a marine adventure. (2) In particular a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof.’
‘[76] … one can place the cases in groups. Group (1) are those cases where the court has defined the subject matter as an item of property; where the insurance is to recover the value of that property; and where thus there must be an interest in the property – real (sic) or equitable – for the insured to suffer loss which he can recover under the policy. Within this group are Lucena v Craufurd … The subject was certain identified ships; the perils insured against were the loss of those ships; the Commissioners had no interest legal or equitable in the ships but a mere expectation. That expectation could not be insured therefore the subject did not embrace the insurable interest. Also within this group is Anderson v Morice(1875) 10 CP 609;(1876) 1 App Cas 713 . Rice was the subject matter of the policy; if uninsured the plaintiff would have suffered no loss from any destruction of the rice since they were never at the plaintiff’s risk; the loss of profits might have been insured but were not. Therefore, the plaintiff could not recover. In Macaura v Northern Assurance Company Ltd and others[1925] AC 619 the subject matter of the insurance was identified timber owned by a company; a shareholder in the company had no interest in the timber whatever in that even without insurance the shareholder would suffer no pecuniary loss from destruction of the timber as such. Any loss suffered would have been as shareholder and his profits as shareholder were not the subject of the insurance. It was however recognised in Macaura that it would have been possible so to describe the subject of the insurance as to embrace the insurable interest in profits, and approval was given to Wilson v Jones(1867) LR 2 Ex 139 … [77] Group (2). These are cases where the court has defined the subject matter as a particular life of a particular person … [82] Group (3). There are then cases where even though the subject matter may appear to be a particular item of property, properly construed the policy extends beyond the item and embraces such insurable interest as the insured has. Wilson v Jones … exemplifies this group and is I suggest an important decision. The plaintiff was a shareholder in the Atlantic Telegraph Company. He insured himself with the defendant under a form of marine policy in common form but filled up with marginal additions. Those marginal additions contained the following words: At and from Ireland to Newfoundland, the risk to commence at the landing of the cable on board the Great Eastern, and to continue until it be laid in one continuous length between Ireland and Newfoundland, and until 100 words shall have been transmitted each way … the ship, etc, goods, etc, are and shall be valued at£200 on the Atlantic cable, value, say on 20 shares, at£10 per share. And also, written opposite to the clause: “touching the adventures, etc.” the words it is hereby understood and agreed that this policy, in addition to all perils and casualties herein specified, shall cover every risk and contingency attending the conveyance and successful laying of the cable, from and including its loading on board the Great Eastern, until one hundred words be transmitted from Ireland to Newfoundland, and vice versa, and it is distinctly declared and agreed that the transmission of the said one hundred words from Ireland to Newfoundland, and vice versa, shall be an essential condition of the policy. The attempt to lay the cable failed, through the cable breaking. The argument of the insurers included an argument that the subject matter of the insurance was the cable and that the plaintiff as a shareholder in the company had no pecuniary interest in the cable. [83] It was recognised by the court that the plaintiff as shareholder had no direct interest in the cable (see pages 144-145 in the judgment of Willes J, with which on this aspect all members of the court agreed). Willes J at 145 then said: The first question therefore is, what was the subject matter insured? Is this, as has been contended, an insurance on the cable, or is it an insurance of the plaintiff’s interest in a share of the profits to be derived from the cable which was to be laid down? In one sense, indeed, it is an insurance on the cable; that is, it affects the cable, as an insurance on freight affects the ship. The state of the ship and freight are so connected that it is impossible that they should be dissevered, except in cases where the loss of freight is effected by the loss of the goods only, in which case it might equally be said that the insurance on freight is an insurance on the goods. But except in that sense, it will appear, when the language of the policy is examined, that the insurance is an insurance, not on the cable, but on the interest which the plaintiff has in the success of the adventure. He then quoted the words already referred to and said: It is impossible to avoid arriving at the conclusion stated by Martin B., as the opinion of the Court below, that this was an insurance on the plaintiff’s interest in the adventure. [84] In the judgment of Blackburn J at page 150 he said: I know no better definition of an interest in an event than that indicated by Lawrence J., in Barclay v Cousins 2 East 544, and more fully stated by him in Lucena v Craufurd 2 B & PNR that if the event happens the party will gain an advantage, if it is frustrated he will suffer a loss. Now we must see whether the plaintiff was in this position. He was interested in a company which was about to lay down a cable across the Atlantic. If that event happened, there can be no doubt the owner of shares in the company would be better off; if it did not happen, there can be no doubt his position would be worse. It follows, then, equally without doubt, that if by proper words the parties have entered into a contract of insurance for that interest, the policy is good. Now, if they had stopped at the word cable, the plaintiff’s interest would not have been correctly or sufficiently described, according to the principle of the case of McSwiney v Royal Exchange Assurance Company14 QB 634, 646; 18 LJ (QB) 193; 19 LJ (QB) 222. Neither if they had said that it was the cable as shipped on board the Great Eastern, would it have been a sufficient description. But here they have used words as to which I will only say, that no one who looks at them fairly, and reads them in connection with the circumstances, can fail to see that the intention of the parties would be frustrated by such a construction as is contended for by the defendant. [85] Group 4 are policies in which the court has recognised interests which are not even strictly pecuniary. … even in the case of property something less than a legal or equitable or even simply a pecuniary interest has been thought to be sufficient. In The Moonacre[1992] 2 Lloyd’s Rep 501 Anthony Colman QC (sitting as a Deputy Judge of the High Court) ruled that the insured, Mr Sharp, had an insurable interest in the boat the subject of the insurance. The boat was owned by a company which was 100 per cent owned by Mr Sharp, but it was the two powers of attorney granted by the company to Mr Sharp giving him wide authority to enjoy and use the vessel exclusively for his own purposes that provided the insurable interest. ….’
‘The principles which I would suggest one gets from the authorities are as follows: (1) It is from the terms of the policy that the subject of the insurance must be ascertained; (2) It is from all the surrounding circumstances that the nature of an insured’s insurable interest must [be] discovered; … (4) The question whether a policy embraces the insurable interest intended to be covered is a question of construction. The subject or terms of the policy may be so specific as to force a court to hold that the policy has failed to cover the insurable interest, but a court will be reluctant so to hold. (5) It is not a requirement of property insurance that the insured must have a “legal or equitable” interest in the property as those terms might normally be understood. It is sufficient for a sub-contractor to have a contract that relates to the property and a potential liability for damage to the property to have an insurable interest in the property. It is sufficient under section 5 of the Marine Insurance Act for a person interested in a marine adventure to stand in a “legal or equitable relation to the adventure.” That is intended to be a broad concept. …’
‘… make a contract in deliberate terms which covers their assured in respect of a specific situation a court is likely to hesitate before accepting a defence of lack of insurable interest.’
‘In my opinion it is the duty of a court always to lean in favour of an insurable interest, if possible, for it seems to me that after underwriters have received the premium, the objection that there was no insurable interest is often, as nearly as possible, a technical objection, and one which has no real merit, certainly not as between the assured and the insurer. Of course we must not assume facts which do not exist, nor stretch the law beyond its proper limits, but we ought, I think, to consider the question with a mind, if the facts and the law will allow it, to find in favour of an insurable interest.’
“The interest need not be a property in the subject.” “It does not necessarily imply a right to or property in the subject insured. It may consist in having some relation, to or concern in the subject of the insurance which relation or concern may be so affected by the peril as to produce damage.”
‘16. Subject to section 20A below, where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. … 20A Undivided shares in goods forming part of a bulk (1). This section applies to a contract for the sale of a specified quantity of unascertained goods if the following conditions are met- a) the goods or some part of them form part of a bulk which is identified either in the contract or by subsequent agreement between the parties; and b) the buyer has paid the price for some or all of the goods which are the subject of the contract and which form part of the bulk. (2). Where this section applies, then (unless the parties agree otherwise), as soon as the conditions specified in paragraphs (a) and (b) of subsection (1) are met or at such later time as the parties may agree – a) property in an undivided share in the bulk is transferred to the buyer, and b) the buyer becomes an owner in common of the bulk. … For the purposes of this section payment of part of the price for any goods shall be treated as payment for a corresponding part of the goods. … 61(1) In this Act, unless the context or subject matter otherwise requires, - … ‘bulk’ means a mass or collection of goods of the same kind which – (a). is contained in a defined space or area; and (b). is such that any goods in the bulk are interchangeable with any other goods therein of the same number or quantity.’
‘A defined ‘space’ will usually and without undue difficulty be preferable to a named warehouse or ship, but a defined ‘area’ could be large enough for a real difficulty to arise in applying section 20A. A seller may state that it is holding goods for the buyer on its premises without stating precisely where, though both parties may know that the seller has only one, albeit extensive, site. This is not quite a case of the seller’s general trading stock and the site ought therefore to be a defined ‘area’.’
‘13A Implied term about payment of claims (1). It is an implied term of every contract of insurance that if the insured makes a claim under the contract, the insurer must pay any sums due in respect of the claim within a reasonable time. (2). A reasonable time includes a reasonable time to investigate and assess the claim. (3). What is reasonable will depend on all the relevant circumstances, but the following are examples of things which may need to be taken into account- (a). The type of insurance, (b). The size and complexity of the claim, (c). Compliance with any relevant statutory or regulatory rules or guidance, (d). Factors outside the insurer’s control. (4). If the insurer shows that there were reasonable grounds for disputing the claim (whether as to the amount of any sum payable, or as to whether anything at all is payable) – (a) the insurer does not breach the term implied by subsection (1) merely by failing to pay the claim (or the affected part of it) while the dispute is continuing, but (b) the conduct of the insurer in handling the claim may be a relevant factor in deciding whether that term was breached and, if so, when. (5). Remedies (for example, damages) available for breach of the term implied in subsection (1) are in addition to and distinct from – (a) any right to enforce payment of the sums due, and (b) any right to interest on those sums (whether under the contract, another enactment, at the court’s discretion or otherwise).’
‘Section 28: Insurance contracts: implied term about payment of claims 263 Section 28(1) inserts a new section 13A into theInsurance Act 2015 which will imply a term requiring the insurer to pay sums due within a reasonable time into all contracts of insurance made under the law of any part of the United Kingdom. 264 Breach of the new contractual term in insurance contracts will give rise to the usual remedies for breach of contract, including damages for loss. 265 Sections 13A(2) and (3) make further provision about the meaning of a “reasonable time”. Under section 13A(2), this will always include time to investigate and assess the claim. Section 13A(3) makes clear that what is reasonable depends on all the relevant circumstances and contains a non-exhaustive list of factors which might be relevant in considering whether the insurer has acted within a reasonable time. 266 The type of insurance involved may be relevant because, for example, claims under business interruption policies usually take longer to value than claims for property damage. In terms of size and complexity, larger more complicated claims will usually take longer to assess than straightforward claims. A claim may be complicated by its location, for example: if an insured peril occurs abroad, it is possible that investigation will be more difficult. 267 The reference to relevant statutory or regulatory rules or guidance might include, for example, rule 8 of the Financial Conduct Authority’s Insurance: Conduct of Business sourcebook (ICOBS) on claims handling, and paragraph 27 of Schedule 1 to the Consumer Protection fromUnfair Trading Regulations 2008 (SI 2008/1277) relating to commercial practices which are in all circumstances considered unfair. 268 Factors beyond the insurer’s control might delay payment. For example, investigations may be held up because the policyholder or a third party fails to provide relevant information in a timely manner. An insurer’s decision may also be dependent on the actions of another insurer. This may arise as a result of the interaction between business interruption and property insurance, or in the subscription market where a follower may be dependent on the lead insurer. 269 Section 13A(4) gives the insurer a defence to a claim for breach of the implied term where it had reasonable grounds for disputing the validity or quantum of a claim. Whether the insurer had reasonable grounds is intended to be judged objectively. 270 Section 13A(4)(b) provides that the insurer’s conduct in handling the claim may be a relevant factor in deciding whether the term was breached and, if so, when. An insurer who has a reasonable basis for disputing a claim or at least conducting further investigations may nevertheless be found to be in breach of the implied term if, for example, it conducts its investigation unreasonably slowly, or is slow to change its position when further information confirming the validity of the claim comes to light.’