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Colonial Cases

Gubbay v. Allgemeine, 1929

[insurance]

Gubbay v. Allgemeine Versicher-ungsgesellschaft fur See, Fluss und Land Transport

Anglo-German Mixed Arbitral Tribunal (Division A), Constantinople
1929
Source: The Times, 21 June 1929

ANGLO-GERMAN TRIBUNAL.

MEANING OF "DEBT" UNDER TREATY.

The Anglo-German Mixed Arbitral Tribunal (Division A), consisting of Dr. Helge Klaestad (President), Mr. Heber Hart, K.C., (British member), and Dr. Robert Wendriner (German member), sitting in London, delivered judgment dismissing the claim by Elie N. Gubbay, a British national, who before the War carried on business at Galata, in the Turkish Empire, against the Allgemeine Versicher-ungsgesellschaft fur See, Fluss und Land Transport in Dresden, £1029 (or 115,317 gold piastres), alleged to be  due under a policy of insurance.

It appeared that the defendants, in January, 1913, insured for £30,000 certain goods sold by the claimant to a firm in Baghdad, and that these goods were damaged during transport, the purchasers declining to accept them.  The insurance policy provided that: -

En cas d'avarie s'adresser a Bagdad a Messrs. Stephen Lynch and Co. pour la constatation des avaries. Aucune avarie ne sera reconnue si le certificat n'est pas signe par le susdit agent.

The claimant accordingly referred the matter to Lunch and Co., who, by certificate of June 27, 1913, stated that damage had been suffered, and assessed the claimant's loss at 115,317 gold piastres, after deduction of the proceeds of sale of the damaged portion of the goods.  As the defendants refused to pay any compensation, the claimant brought an action against them before the German Consular Court at Constantinople, which, by a judgment of April 21, 1914, decided in principle in favour of the claimant. The defendants appealed to the German Reichesgericht, who, in January, 1921, dismissed the appeal.  The present claim, under Article 304 (b), which was for the amount assessed by Stephen Lynch and Co., was primarily resisted on the ground that it did not fall under Article 304(b), but under Article 296 of the Treaty. ...

The TRIBUNAL, in their judgment, said that it was submitted by the claimant that three was no "debt," within the meaning of Article 296, due to him on January 10, 1920.  In view of the fact that the amount of compensation due under the policy was in 1913 assessed in accordance with the terms of the policy, that this amount was never challenged afterwards by the parties, it was, in fact, claimed by the claimant in the proceedings before the German Consular Court in 1914, and later on before the Reichsgericht and in the present proceedings, and was not at any time disputed by the defendants, the Tribunal were of opinion that the claimant's claim in respect of this amount had, on January 10, 192-0, all the elements necessary to constitute a "debt" within the meaning of Article 296.  In accordance with the provisions of this Article and the Annex thereto this claim could, therefore, only be settled through the intervention of the Clearing Office established thereunder and could not be entertained under Article 304 (b).

The claim was accordingly dismissed, the defendants being awarded £20 as costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School