Neutral Citation:  EWHC 1127 (Comm) Claim No: 2006 Folio 167 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION COMMERCIAL COURT Cardiff Civil Justice Centre Date: Monday, 2nd June 2008 Before : HIS HONOUR JUDGE CHAMBERS QC sitting as a judge of the Queen’s Bench Division --------------------Between : ALLIANZ INSURANCE COMPANY EGYPT (a company incorporated under the laws of Egypt) - and AIGAION INSURANCE COMPANY S.A. (a company incorporated under the laws of Greece) ----------------------------------------Guy Blackwood (instructed by Holman Fenwick & Willan) for the Claimant Philip Edey (instructed by Clyde & Co LLP) for the Defendant Hearing dates : 3rd – 6th March 2008 --------------------Claimant/ Reinsured Defendant/ Reinsurer
HHJ Chambers QC : Introduction 1. The Claimant (“Allianz”) is an insurance company incorporated in Egypt. The Defendant (“Aigaion”) is a reinsurance company incorporated in Greece. It is Allianz’s case that on 30 March alternatively 2 April 2005, Aigaion agreed to reinsure 30 percent of the cover provided by Allianz in respect of a fleet of tugs that included the Ocean Dirk. The reinsurance is said to have been effected through Chedid & Associates Ltd (“Chedid”), a company of reinsurance brokers incorporated in Cyprus. On 23 July 2005 the Ocean Dirk became a constructive total loss. Allianz has sought payment from Aigaion of US$675,000.00 which is said to be its share of the loss. Aigaion has denied that it is liable to make the payment. The defences may be broadly described as follows. First, that there never was a concluded contract between Aigaion and Allianz. Second that, if there was such a contract, it contained a warranty to the effect that instalments of premium would be paid in the amounts and by the dates specified by Aigaion in a policy sent by Aigaion to Chedid in mid April 2005 and that, there having been no such payments to Aigaion, the cover had terminated automatically prior to the casualty. It is common ground that the assured suffered the casualty and was indemnified by Allianz. It is also accepted that, if Aigaion was on risk at the time of the casualty, it became liable to pay Allianz the sum claimed. In fact, Allianz paid the relevant instalments to Chedid but Chedid failed to pass them on to Aigaion. It is now time to pass on to the detailed history but, before doing so, I should make one general comment. It will be appreciated from what I have already said that the commercial background to this matter is that Aigaion feels that it was not on risk at the time that the casualty was suffered because the requisite instalments had not been paid. Whether Aigaion is right or wrong, it is easy to appreciate its stance from an ordinary business point of view. To the dough of this quotidien approach has been added the yeast of a forensic ingenuity that sometimes seems to lose sight of the fact that, although legal analysis may indeed produce results other than those the parties may have originally contemplated, it is no bad test to have in mind what the parties considered the position to be at the time. It is clearly established from the oral and written evidence that by the end of 2 April 2005 both parties considered Aigaion to be on risk.
The history to 2 April 2005
There are three people central to the story. Wael Wasfi, then marine underwriting manager at Allianz. Nassib Barbir, then account executive in the marine department of Chedid in Beirut. Nicolaos Tzimas, senior marine underwriter at Aigaion. Each of them gave evidence. Each of them was honest and straightforward. Their evidence was largely uncontroversial. For the most part the history emerges clearly from the documents. On 27 December 2004 Mr Wasfi sent Farid Chedid an e-mail which read: “As agreed during your visit to our offices, I have the pleasure to attach herewith, the term and conditions together with the vessels schedule.”
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