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Colonial Cases

Hogg Brothers v. China Fire Insurance Company, 1865

[insurance]

Hogg Brothers v. China Fire Insurance Company

Consular Court, Shanghai
14 February 1865
Source: The North- China Herald, 18 February 1865

 

H.B.M. CONSULAR COURT.

Shanghai, February 14th, 1865.

HOGG BROS. versus THE CHINA FIRE INSURANCE COMPANY.

The following is a copy of the judgment given in the above case.

In this action Messrs. Hogg Bros. & Co. sue thr China Fire Insurance Company for Tls. 50,000, insured on goods descried in the policy as "their own in trust or on commission," and the defendants resist the claim, on the grounds that Messrs. Hogg Bros. & Co. were not interested in the goods in question, and that the loss had been fraudulently stated.

The plaintiffs explained at the opening of the proceedings that their interest was not strictly that which was stated in their declaration, that they really sued for protecting Ping-ke, the Chinese merchant to whom the goods insured belonged, and that entertaining themselves the same conviction, they had led Ping-ke to believe that the said goods were covered.  Further, that as the fact of Ping-ke being the real owner of the goods was known to the defendants at the time the policy was effected, they, Messrs. Hogg Bros., claim a right to sue upon the policy which stood in their name, and the general claim on the part of Ping-ke included a particular claim on their own account of Tls. 7, 570.

The defendants denied all knowledge of the goods being Ping-key's and resisted the claim because the plaintiffs had laid the ownership of the goods entirely in Ping-ke, whom they - the Company - had never insured, and the defendants further declared that they had never received any intimation from Messrs. Hogg Bros. that the latter themselves possessed the particular insurable interest above stated.

Though the Court would have been justified bin non-suiting the plaintiffs upon the policy, and in directing them to bring their own cause of action in another form, it seemed desirable in the interest of all parties that investigation should proceed in order that it might appear how far the allegations as to the contract, though standing in the name of Hogg Bros., having really been made by the C.F.I. Company with Ping-ke, could be sustained.  The Court and Assessors are convinced that no engagement was ever made by the Insurance Company with Ping-ke, either direct or through Messrs. Hogg Bros. as his agents, and although satisfied that there has been no intentional misrepresentation on the part of the plaintiffs, whose case as to the supposed understanding relative to the ownership of the goods rested on the parol evidence of one witness, the Court can perceive from certain attendant facts that the memory of that witness has proved inaccurate in describing conversations which occurred eleven months ago.  But even had the testimony produced by the defendants to contradict the said understanding been less conclusive, the Court would not have been at liberty to allow parol evidence to vary the terms of the written statement, except upon the clearest evidence of mistake or fraud in its execution.

In respect of the alleged fraudulent statement of loss, the Court and the Assessors also hold that this plea has been completely sustained.  It has been as clearly proved by the plaintiff's witnesses as by those for the defence, that a shorter time than half an hour elapsed from the time that the godown-keeper, being himself in bed in the godown, first discovered signs of fire until the roof fell in and showed that the contents of the building were then limited to two burning masses of loose cotton, some packages of tobacco, and a pile of coffin-wood.  When extinguished, these heaps shewed not a trace of the cotton having been previously packed in bales, as the plaintiff's witnesses declared was the case, with the trifling exception of 500 or 600 catties.  The loss is stated by Ping-ke at 703 bales of cotton, 518 bales of tobacco, and a few minor articles.

If this statement were correct a very large proportion of this mass of material, although by no means readily consumable, must have been annihilated between the time of the breaking out of the fire and falling in of the roof, the cotton must have been thrown out of its form in bales into two loose heaps and every vestige of its former packed condition been obliterated.  To the mind of the Court and assessors such a result would be physically impossible, and they are therefore satisfied that the godown, at the time of the occurrence of the fire, did not contain the quantity of goods stated in the claim.  HARRY S. PARKES, Consul.

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