FEDERAL COURT OF AUSTRALIA

Swashplate Pty Ltd v Liberty Mutual Insurance Company trading as Liberty International Underwriters [2020] FCA 15

ORDERS

THE COURT ORDERS THAT:

1.    The separate question identified in the orders of the Court made on 14 June 2019 that is:

Pursuant to Federal Court Rule 30.01 the Court determine as separate question whether or not the Applicant is entitled to indemnity in respect of its claim for the cost of repairs to aircraft 56044 VH-TOS under policy of insurance SY-HEL-17-900043 for damage sustained during carriage of the aircraft from Picayune, Mississippi to Queensland in May to July 2018.

be answered “No, the Applicant is not entitled to indemnity.”

2.    On or before 3 February 2020, the parties file draft short minutes containing any further orders considered to be necessary to finalise the matter.

3.    To the extent necessary, time be extended for any application for leave to appeal to a date by reference to r 35.13 of the Federal Court Rules 2011 (Cth) to run from no earlier than Monday 3 February 2020.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    The applicant acquired in the United States of America and imported into Australia two Bell 427 helicopters. Both were damaged in transit for reasons that will be explained. The respondent issued two Aviation Helicopter Single Transit Policies of Insurance: policy SY-HEL-17-900043 in respect of helicopter serial number 56044 and policy SY-HEL-17-900044 in respect of helicopter serial number 56047.

2    The respondent has granted indemnity in respect of the second helicopter (56047) under policy 900044 but denies indemnity in respect of the first helicopter.

3    The parties agreed upon the hearing of a separate issue on liability in respect of coverage of the first helicopter, the terms of the order that was made on 14 June 2019 at the hearing being as follows:

1.    Pursuant to Federal Court Rule 30.01 the Court determine as separate question whether or not the Applicant is entitled to indemnity in respect of its claim for the cost of repairs to aircraft 56044 VH-TOS under policy of insurance SY-HEL-17-900043 for damage sustained during carriage of the aircraft from Picayune, Mississippi to Queensland in May to July 2018.

4    Both helicopters were damaged during transit when they moved in their containers because the temporary wheels were not chocked in their final stowage position, or there was insufficient or unsuitable strapping employed. The reason why the insurer accepts responsibility for one, but not the other, helicopter is a timing question. The insurer contends that in respect of the first helicopter the inadequacy of packing took place before the attachment of the policy. That timing is crucial for the operation of one of the exclusions in the policy.

5    For the reasons below, the applicant is not entitled to indemnity and the answer to the posed question is “no”. In the circumstances, the proper relief is to dismiss the application in respect of the claim for indemnity for the damage to the relevant helicopter under the relevant policy.

6    The arguments of the parties and their resolution require close attendance of the chronology of events and to the terms of the relevant policy.

7    The evidence (led by the applicant) comprised:

(a)    an amended statement of agreed facts that also contained relevant documents including the policy wording (Exhibit A);

(b)    various email exchanges being pp 176–179 behind tab 10 of the Court Book (Exhibit B);

(c)    two affidavits of Michael Anthony Yip (a licensed aircraft maintenance engineer) affirmed on 15 February 2019 and 2 May 2019 respectively; and

(d)    one affidavit of Blake Amour (an employee of the logistics company that arranged the transport of the helicopters) affirmed on 18 February 2019.

8    No evidence was led by the respondent.

The essential facts

9    In examining the facts and arguments it is necessary to bear in mind the time difference between Picayune, Mississippi where the helicopters were placed into their shipping containers and began their voyages by truck to the Port of New Orleans, and the east coast of Australia where the insurer and insured were when they entered into the contract of insurance. In May 2018, Picayune was 15 hours behind Australian Eastern Standard Time (AEST). So, 5pm Friday 18 May (Picayune time) was 8am Saturday 19 May (AEST).

10    At 8am on Tuesday 15 May 2018 (Picayune time) both helicopters were outside the hangar at Picayune. The main rotor blades had been removed. Later, on 15 May 2018, helicopter 56044 was moved into the hangar and hoisted for the removal of its skids. By the end of 15 May 2018, or early 16 May 2018 (Picayune time) helicopter 56044 was further dismantled by the removal of three fins, a stabiliser and the tail rotor. By 17 May 2018, components removed from both helicopters (56044 and 56047) had been packed in boxes, or otherwise prepared for loading.

11    On 18 and 19 May 2018 (Picayune time) three containers arrived for transportation of three Bell 427 helicopters. The first container was for a helicopter unrelated to this claim. The second container, used for helicopter 56044, arrived at 3pm 18 May 2018 (Picayune time), being 6am AEST on 19 May 2018. The third container, used for helicopter 56047, arrived at 8am on 19 May 2018 (Picayune time), being 11pm AEST on 19 May 2018. The containers were placed outside the hanger on the ground, as they were too large to be placed inside.

12    As soon as the second container was placed outside the hangar at 3pm on Friday 18 May (Picayune time) helicopter 56044 was moved in the hangar and taken outside for loading into the container by affixing axles and wheels where the skids had been so that the helicopter could be wheeled into the container. After it was pushed into the container, the helicopter was tied down. During this operation chocks should have been applied. Shortly before 5pm (Picayune time) the doors of the container containing helicopter 56044 were shut and the container was loaded on to the truck, which then departed for New Orleans at or shortly after 5pm.

13    On the following day, Saturday 19 May, at 8am (Picayune time), the third container arrived and the same process took place in relation to the loading of helicopter 56047. As with helicopter 56044, there was no chocking that should have been carried out. Loading of the packed container on to the truck was effected by about 10am (Picayune time), and the truck then departed.

14    Meanwhile, at 6:38pm on Thursday 17 May (Picayune time) Mr Yip (who was in Picayune overseeing the dismantling and packing of the helicopters) sent a text message to Mr Martin Williams, the broker at Austbrokers who arranged the insurance, in the following terms:

“Hi Martin. Do we have transit insurance for two containers each with a Bell 427 travelling from Picayune airport to Maroochydore?”

15    The evidence does not disclose a reply to Mr Yip’s inquiry. Mr Williams received the email at 9:38am AEST on Friday 18 May. On the following day, Saturday 19 May, at 1:48pm AEST, Mr Williams sent an email enclosing two placement slips to Ms Elisabeth Baker of the respondent insurer in the following terms:

…

Becker Helicopter Services Group Pty Ltd

SY-HEL-17-900043 & SY-HEL-17-900044

Cargo Insurance ? single transit x 2

Please find attached Placement Slips for agreement in respect of two policies being placed under our existing facility.

I know you are away. As discussed, happy for you to finalise paperwork once you return.

…

16    The placement slips referred to, it is to be inferred, were in the form discussed below with the exception of an error as to date, referred to in the next paragraphs. On the following Monday, 21 May 2018, at 9:11am AEST Ms Baker responded to Mr Williams changing the date:

…

Thanks for your email. …. I note the inception date on these ones is the 19th April. Can you please confirm the correct date.

…

17    Shortly thereafter at 9:37am AEST, Mr Williams replied enclosing amended slips, and saying relevantly:

Sorry about that correct date 19 May. Amended Slips attached.

18    On the following day, Tuesday 22 May 2018, at 1:39pm AEST, Ms Baker replied by email enclosing the two placing slips, saying relevantly:

Thanks for your confirmation. On that basis I confirm cover bound with effect from the 19th May. Please find my stamped and signed slips noting the same attached.

19    It is important to appreciate that Mr Williams and Ms Baker were arranging these terms without any discussion of the stage of any activity that had, or might have, been reached in storing or moving or dealing with the helicopters in question. The issue was: what was the correct inception date from which cover was bound? A date was given. It was not given in the context of the mutually known or understood or discussed circumstance as to the position of the helicopter and that it was on the truck already, having already been packed and stowed in the container and put on the truck. Rather, the inception date was given in connection with two single transit policies for two helicopters in Picayune for which placement slips had been provided (inferentially, in the form referred to below) pursuant to a Master Slip reflecting a facility (as referred to below) for the single transit carriage of helicopters.

The policy documents

20    The slips sent by Austbrokers, as agent of the applicant, to the respondent were submitted under an insurance facility negotiated in May 2017 and extended in May 2018. A Master Slip records this facility between Austbrokers and Liberty and the form that slips would take. It can be inferred that the Master Slip was on the files of, or available to, Mr Williams and Ms Baker.

21    The Master Slip described the “class” of insurance intended to be covered as “Helicopter Cargo Insurance (single transit)”. The “Policy Number” was “to be advised.” Thus the Master Slip envisaged a specific single transit policy for each helicopter (which occurred). The “Policy Wording” was identified as “LIU-AUS-MAR-CAR-A-06-12.” This was the Liberty International Underwriters policy wording that came to be used in relation to the helicopter and the policy in question (SY-HEL-17-900043 covering helicopter 56044). This policy wording incorporated the 2009 Institute Cargo Clauses (A) CL.382 01.01.09 (the 2009 ICC (A)). The “Period of Insurance” was described as:

Risks attaching during the period

From:    23 May 2017

To:    22 May 2018     both days inclusive LST

22    The Master Slip contained three conditions that reflected a Helicopter Single Transit Endorsement (HST Endorsement) contained in the Liberty International Underwriters policy wording LIU-AUS-MAR-CAR-A-06-12, as follows:

1    Coverage includes loading and/or unloading but not the risk of disassembly / re-assembly / packing-unpacking of the units

2    Cargo professionally packed, stowed and carried AND/OR packing and stowage overseen by a qualified aviation engineer

3    Blades packed, stowed and carried in own box

23    The Master Slip also had an extension for what was referred to as “Static Cover” (a phrase not defined) for a period of up to 5 days prior to loading.

24    The placement slip for policy SY-HEL-17-900043 (the operative placement slip) covering helicopter number 56044 was relevantly in the terms annexed and marked A. It was before Ms Baker having been provided by Mr Williams, albeit with the incorrect date adjacent to “Period of Insurance”. The “Period of Insurance” (once corrected by Mr Williams in the exchange referred to above) was:

From:     19 May 2018

To:    Date of Arrival at Sunshine Coast Airport QLD

25    It is to be noted that the Master Slip (prepared by the applicant’s broker) refers to LST, but the operative placement slip does not. The letters LST stood for local standard time.

26    The insurer’s primary point is that the date (19 May 2018) is to be understood as the time and date of the place where the insured property was at the time the insurance was effected, that is, Picayune. The failure to chock or to provide sufficient or suitable strapping occurred on 18 May 2018, Picayune time, though 19 May AEST.

27    Conditions 1, 2 and 3 in the operative placement slip were as contained on the Master Slip. Condition 2 was satisfied. Condition 3 is irrelevant. Condition 1 makes clear that coverage includes, relevantly, loading, but not the risk of disassembly or packing of the units. The question of “packing” is dealt with more particularly in cl 4.3 of the 2009 ICC (A) referred to below. The “extension” on the second page of the slip was the Static Cover extension found in the Master Slip. It stated (as in the Master Slip):

Coverage is extended to include Static Cover for up to 5 days prior to loading

28    Adjacent to the heading “Voyage” on the operative placement slip appeared “From Picayune (Mississippi) to Sunshine Coast (QLD)”.

29    The Master Slip described the “Geographical Limits” as including “Imports: Worldwide excluding to/from any US Embargo Countries.”

30    The Master Slip identified the anticipated premium by reference to a percentage of value of the cargo (not by reference to time).

31    The policy wording identified as LIU-AUS-MAR-CAR-A-06-12 (as anticipated in the Master Slip) was incorporated by the operative placement slip. This policy wording slip incorporated the 2009 ICC (A), as anticipated in the Master Slip.

32    The policy wording contained the HST Endorsement that contained the three conditions on the operative placement slip (and on the Master Slip). It stated as follows:

It is hereby noted and agreed that the Policy Wording is amended to include the following Conditions, Exclusions and Extensions:-

Conditions

1    Coverage includes loading and/or unloading but not the risk of disassembly / re-assembly / packing-unpacking of the units

2    Cargo professionally packed, stowed and carried AND/OR packing and stowage overseen by a qualified aviation engineer

3    Blades packed, stowed and carried in own box

33    Clause 1 of the 2009 ICC (A) provided for the risks covered:

1.    This insurance covers all risks of loss of or damage to the subject-matter insured except as excluded by the provisions of Clauses 4, 5, 6 and 7 below.

34    Clauses 4, 5, 6 and 7 were relevant “Exclusions”. Only cl 4.3 need be mentioned. It is the crucial exclusion:

4.3    loss damage or expense caused by insufficiency or unsuitability of packing or preparation of the subject-matter insured to withstand the ordinary incidents of the insured transit where such packing or preparation is carried out by the Assured or their employees or prior to the attachment of this insurance (for the purpose of these Clauses “packing” shall be deemed to include stowage in a container and “employees” shall not include independent contractors)

35    Clause 8, the “transit clause” dealt with attachment of the policy and duration, and relevantly provided:

DURATION

Transit Clause

8. 8.1    Subject to Clause 11 below, this insurance attaches from the time the subject-matter insured is first moved in the warehouse or at the place of storage (at the place named in the contract of insurance) for the purpose of the immediate loading into or onto the carrying vehicle or other conveyance for the commencement of transit,

continues during the ordinary course of transit

…

36    Clause 11 dealt with insurable interest and contained in cl 11.2 a “lost or not lost” clause:

11.2    Subject to Clause 11.1 above, the Assured shall be entitled to recover for insured loss occurring during the period covered by this insurance, notwithstanding that the loss occurred before the contract of insurance was concluded, unless the Assured were aware of the loss and the Insurers were not.

The parties’ submissions

The insurer’s primary submissions

37    It is convenient to commence with the insurer’s primary submissions since there is no issue about indemnity other than the timing of the attachment of the policy. Reliance is placed squarely on cl 4.3 of the 2009 ICC (A). The effect of the exclusion is that for there to be indemnity any “insufficiency or unsuitability of packing or preparation of the subject-matter insured to withstand the ordinary incidents of the insured transit” must be “carried out… prior to the attachment of this insurance…” By the same clause “packing” was deemed to include stowage in a container.

38    The insufficiency or unsuitability of the stowage of the helicopter in the container or preparation of the helicopter to withstand the incidents of the insured transit was either inadequate strapping to tie down the helicopter in the container or the failure to chock the helicopter in the container. Whatever the precise cause, both deficiencies occurred in respect of helicopter 56044 during packing and preparation which was carried out between 3pm and 5pm on 18 May (Picayune time).

39    The respondent’s case is that the insurance attached at 12am on 19 May (Picayune time). The primary argument of the insurer is that the insurance attaches from the earliest point of time on 19 May, 12am. This proposition gives full contractual force to the “Period of Insurance” in the operative placement slip and the Static Cover extension.

40    An alternative argument put in written submissions filed before the hearing was that the attachment of the insurance was governed alone by cl 8.1 of the 2009 ICC (A). Under this argument, the policy attached when the helicopter was “first moved in the warehouse or at the place of storage … for the purpose of the immediate loading … onto the carrying vehicle or other conveyance for the commencement of transit”. It was submitted by the insurer that this was the loading of the container on to the truck, not the movement of the helicopter in the warehouse as it was taken from the warehouse to be placed in the container outside for packing. However, as made clear in oral address by Mr Owens SC, who with Mr Wallwork and Mr Oakes appeared for the insurer, the whole case stood or fell for the insurer on the contractual operation of the commencement of insurance at 12am on 19 May Picayune time, because of the terms of the Static Cover extension. He accepted that the Static Cover extension moved the attachment date of the insurance back in time to a point up to five days prior to loading. This meant that even though the “insufficiency or unsuitability of packing or preparation” for the purposes of cl 4.3 might have occurred prior to the attachment of the insurance if cl 8.1 of the 2009 ICC (A) alone governed the question of attachment, it would have occurred after the attachment of the insurance if the Static Cover extension brought attachment of the insurance (for cl 4.3 of the 2009 ICC (A)) back to a point five days prior to loading. The only way this conclusion would not obtain was if the Static Cover extension did not commence until 19 May 2018 (Picayune time). The Static Cover extension and its relevance to events that might amount (as here) to relevant insufficiency or unsuitability of packing or preparation explained the presence of Condition 2 in the HST Endorsement that cargo was to be professionally packed, stowed and carried and/or packing and stowage was to be overseen by a qualified aviation engineer.

41    Thus, the insurer accepted that unless “19 May 2018” marked out, by reference to Picayune time, the earliest point of time from which the insurance (including the Static Cover extension) attached the applicant was entitled to indemnity because the Static Cover extension would otherwise bring the attachment of the insurance back to a point of time up to 5 days prior to loading, and so make cl 4.3 of the 2009 ICC (A) inapplicable.

The applicant’s submissions

42    The applicant first relied on the Static Cover extension. It submitted that the policy attached five days prior to 18 May 2018. That extension varied the commencement or attachment of the policy that would otherwise have applied pursuant to cl 8.1 of the 2009 ICC (A).

43    Secondly, if the Static Cover extension does not signify the time of commencement or attachment of the policy, the policy should be understood and construed as a voyage policy, not a time policy. The “duration” of the policy is governed by cl 8 of the 2009 ICC (A) which shows that the contract was to insure the helicopter, to use the words of s 31 of the Marine Insurance Act 1909 (Cth), “at and from, or from one place to another place.” The attachment was governed, it was submitted, by cl 8.1 and occurred either when the helicopter was moved into the hangar or when the helicopter was moved in the hangar for the purpose of taking it outside and placed inside the container. (It is to be remembered that the relevant insufficiency or unsuitability of packing or preparation took place after either of these movements because the insufficiency or unsuitability was carried out once the helicopter had been placed in the container).

44    For the purposes of this second argument, the placement of “19 May 2018” adjacent to “Period of Insurance” in the operative placement slip was submitted by the applicant to be indicative only, as a non-contractual indication of the time when the voyage was expected to commence. It was submitted that there is insufficient clarity in the operative placement slip to be taken to amend cl 8.1 and the Static Cover extension, and to rely on the reference to 19 May 2018 would also be inconsistent with the express policy inclusion of “loading and/or unloading” in the HST Endorsement.

45    Thirdly, even if the insurance did not attach prior to 19 May 2018 because the “Period of Insurance” on the operative placement slip was determinative, that reference is to be understood to be AEST, not Picayune time.

46    Fourthly, the effect of the HST Endorsement was to vary cl 4.3 of the 2009 ICC (A) such that as long as the cargo was professionally packed, stowed and carried and/or packing and stowage is overseen by a qualified aviation engineer, cover was extended to loading and unloading, but not the risk of disassembly / reassembly / packing-unpacking of the units. Without the deeming provision that appears in cl 4.3 that “packing” includes stowage in a container, the phrase “loading and/or unloading” in the HST Endorsement should be given a meaning broad enough to encompass securing the aircraft within the container.

The insurer’s responsive submissions

47    As to the Static Cover extension, the insurer emphasised the words “up to”. Thus, it was submitted, there was a flexible period, and not a mandatory, inflexible retrospective declaration of the time of attachment five days prior to loading, but up to five days from 19 May 2018.

48    As to the nature of the policy being a voyage policy and not a time policy, the insurer explained the narrow reach of cl 8.1, the words “immediate loading” and that the words “first moved in the warehouse” are qualified by the later phrase “for the purpose of the immediate loading.” But, in any event, the insurer accepted that the effect of the Static Cover extension was, subject to the operation of the reference to 19 May 2018 as the commencement of insurance, to move the attachment of insurance back up to five days prior to loading.

49    As to the relevant time zone by reference to which one judges 19 May 2018 in the slip, the insurer submitted that to consider this by reference to AEST was contrary to authority and common sense. Reference was made to Drinkwater v Caddyrack Pty Ltd (unreported, Supreme Court of New South Wales, Young J, 25 September 1997), affirmed on appeal in Kyrwood v Drinkwater [2000] NSWCA 126; Loucas G Matsas Salvage & Towage Maritime Co v Fund on Sale of the ‘Ionian Mariner’ (1997) 79 FCR 351 at 354–355; Curtis v March (1858) 28 Exch 36; 157 ER 719; R v Logan [1957] 2 QB 589; and Enright I and Merkin R, Sutton on Insurance Law (4th ed, Thomson Reuters, 2015) at [12.20]. Further, it was submitted the reference to LST or local standard time in the Master Slip in the context of insurance for transport of cargo means the time at the location of the cargo. Thus, to the extent that the policy terms granted Static Cover, the policy was intended to commence on a particular time and day (12am 19 May) for Static Cover, and thereafter be a voyage policy for the transit after loading.

50    As to the submission that the HST Endorsement amended cl 4.3 of the 2009 ICC (A) and introduced new definitions of “loading” and “packing”, the insurer submitted that the condition simply states the scope of coverage; and in any event, states that packing is not covered.

Consideration and disposition

51    Resolution of the arguments is not straightforward. The able arguments of Mr Cox and Mr Owens have been of great assistance. There was no debate about the relevant principles of construction. It can be taken that the various contractual documents: the operative placement slip, the Liberty International Underwriters policy wording, including the HST Endorsement, and the 2009 ICC (A) must be read together, and as a whole, giving effect where possible to all provisions: Re Media, Entertainment and Arts Alliance; ex parte The Hoyts Corporation Pty Ltd [1993] HCA 40; 178 CLR 379 at 386–387, in an harmonious construction reflective of business common sense. In doing so, the Master Slip is to be recognised as not without its importance. It was not a contractual document. This was common ground. However, it is, without doubt, an aspect of the surrounding circumstances admissible to assist in the interpretation of the contract of insurance.

52    The operative placement slip was issued in furtherance of the extant commercial arrangement reflected by the Master Slip. A reasonable business person looking to the terms of the operative placement slip and the incorporated wording, including the 2009 ICC (A), would seek to understand the meaning and effect of them in the context of, and by reference to, the Master Slip and the commercial undertakings in the future which it envisaged (of which the insurance of helicopter number 56044 was one example).

53    There are a number of aspects of the Master Slip that give important context and contextual understanding to the contractual terms in, and incorporated by, the operative placement slip. First, the insurance anticipated by the Master Slip was for a single transit helicopter cargo policy, including various Institute Clauses (including, amongst others, cargo, war and strikes), but relevantly in particular, the 2009 ICC (A). The attachment of any policy to be issued was therefore anticipated to be by cl 8.1 of the 2009 ICC (A) modified by the operation of the Static Cover extension, up to 5 days prior to loading.

54    Secondly, this attachment up to five days prior to loading or by reference to cl 8.1 assists in understanding the period of insurance referred to in the Master Slip. It anticipates insurance for risks attaching from 23 May 2017 to 22 May 2018 both inclusive “LST”, which can be taken to be local standard time. See Eric Sullivan’s Marine Encyclopaedia Dictionary (LLP, 6th ed, 1999) p 275 where LST or l.s.t. is identified as Local Standard Time or Landing Ship Tank. The latter is obviously irrelevant; and the former obviously apposite.

55    The dates and times as local time in the context of attachment by, or by reference to, an activity – “loading” for the Static Cover extension, or movement of the helicopter “in the warehouse or at the place of storage … for the purpose of the immediate loading” – assist one to understand that it is the time and date by reference to the activity at the place it occurs that is referred to. The risk must attach by the terms of the policy as a whole prior to midnight on 22 May 2018 by reference to local time of the events that would give rise to attachment. That is not the contractual provision for the policy in question; rather it is what the Master Slip provides as will fall within the facility provided by it.

56    One then comes to construe the contractual documents. The facts reveal that the operative placement slip was proffered and was accepted prior to midnight 22 May 2018, Picayune, Mississippi time. To the extent it is relevant, the broker expressed to the employee of the underwriter that the insurance was “placed under our existing facility”: see the email at 1:48pm AEST Saturday 19 May 2018 ([15] above); and the employee of the underwriter saw the date in the way expressed in the email on Tuesday 22 May 2018 at 1:39pm AEST: “I confirm cover bound with effect from the 19th May”: [18] above.

57    No one put the submission that these emails were contractual or that the subjective views of Mr Williams (the broker) or Ms Baker (the employee of the underwriter) were relevant.

58    The operative placement slip identified the voyage as from Picayune (Mississippi) to the Sunshine Coast. The characterisation of the insurance as a voyage policy from the date of the attachment pursuant to its terms to the date of termination of cover pursuant to its terms is assisted by the identification of the voyage. The question is what part does the identified date, “19 May 2018” adjacent to the phrase “Period of Insurance” in the operative placement slip play in the cover?

59    The cover was arranged by accepting a placement slip within the period of, and under, the facility which provided for acceptance of risks that attach prior to midnight on 22 May 2018, Picayune, Mississippi time. The question is whether, in this context, by acceptance of the placement slip a business person would understand the parties to have agreed that cover was to attach or commence not by reference to the terms of the anticipated (now actual) voyage policy (the Static Cover extension and cl 8.1 of the 2009 ICC (A)) but by reference to a nominated time, 12am 19 May 2018, Picayune, Mississippi time; even if it be the case that by reference to the terms of the voyage policy otherwise, cover would attach within the facility period. The insurer’s positon is that even though in one sense the cover was confirmed under the existing facility recognised by the Master Slip and even though the cover fell within the terms and boundaries of that facility, cover did not attach until a particular time in Picayune. This was brought about by giving contractual force to the words adjacent to “Period of Insurance” on the face of the operative placement slip. There was no doubt that cover was given after that date, but, as it happens, cl 4.3 of the 2009 ICC (A) applied to exclude indemnity for this loss which was caused by the insufficiency or unsuitability of packing or preparation carried out prior to attachment of the insurance.

60    This approach might be said to change the nature and form of the actual insurance from that which was anticipated by the Master Slip. The Master Slip might be seen to have anticipated that the cover would be a single transit voyage policy attaching by reference to the terms of the wording prior to midnight on 22 May 2018, Picayune, Mississippi time. If contractual force and meaning is given to “19 May 2018” as the attachment time (by Picayune, Mississippi time) the policy became partly a time policy (from a particular time in Picayune) and partly a voyage policy to the termination of the cover by reference to the terms of cl 8 of the 2009 ICC (A). The applicant did not put the matter precisely thus, but the mixed character of a time/voyage policy was said to be something that required clear terms: cf The ‘Al-Jubail IV’ [1982] 2 Lloyd’s Rep 637; and The ‘Marina Iris’ [2007] 1 Lloyd’s Rep 66.

61    The applicant submitted that the reasonable business person would not read “19 May 2018” adjacent to “Period of Insurance” as precisely and demandingly contractual. A number of matters may, perhaps, be seen to tend in the direction of that submission. First, no precision as to it being local standard time is given in the operative placement slip. Such precision was given in the Master Slip when identifying the times after and before which the risk must attach (by the terms of the policy) to fall within the facility being provided for. Secondly, and relatedly, such clarity and precision might perhaps be expected if one were changing the nature and form of the cover from an anticipated voyage policy, its attachment and termination determined by the understood terms of the incorporated wordings, to a time and voyage policy with its inception by attachment of cover importantly changed to a precise time in Picayune. Thirdly, and also relatedly, this change in the nature and form of the cover (if it be correct so to characterise it) is done by reference to the placement of a date in the place on the form of the operative placement slip that was previously used in the Master Slip for dates fulfilling another purpose, that is, identifying the local Picayune dates and times between which attachment must occur by reference to the terms of the anticipated wording. Fourthly, objectively, there was no expressed or apparent intention to depart from the nature, form and structure of a policy anticipated by the Master Slip: a voyage policy whose attachment occurred by reference to identified wording as long as that attachment, referable to anticipated terms, occurred prior to an identified date within a given range, being prior to midnight on 22 May 2018. I am not intending to give any relevant contractual force to the Master Slip. But it was a document that reflected a commercial relationship for anticipated cover for risks attaching within a range of dates and attaching by reference to identified policy wording. One might perhaps expect some objective expression through the terms of the cover for it to be importantly different from that anticipated by the facility under which it was arranged.

62    These considerations then lead one to ask what was the purpose (the objective contractual purpose) of placing the words and numbers “From: 19 May 2018” adjacent to the phrase “Period of Insurance” on the operative placement slip if it did not mark out the commencement or attachment of risk of the cover, by, on this hypothesis, the wording of the cover? The answer given by the applicant is that it was indicative only, indicating that the insurance fell, as it did, within the cover and adequately identified by reference to an unidentified time zone or unidentified time zones the likely date of the commencement of the voyage. This way of looking at the date in the operative placement slip would make it unnecessary to be overly precise as to Picayune time as long as the risk attached by 19 May 2018 that is within the range identified in the facility, ending midnight 22 May, Picayune time. Yet, the parties did not use the expression “From: On or before 22 May 2018, LST”; rather they identified a date (being the same date for both shipments) that was the date of the anticipated voyage – the anticipated commencement or duration of transit.

63    On this way of looking at the matter, attachment takes place in accordance with the terms of the wording without being limited by having to await 12am 19 May 2018, Picayune time. So, attachment took place on 13 May, five days before loading on 18 May (Picayune time) or on 14 May five days before loading on 19 May (AEST).

64    One of the difficulties of this approach is that it is somewhat ungainly in failing to give contractual force and operation to apparently important words marking out the commencement of cover: “Period of Insurance”. Also, it fails to give the underwriter any clear knowledge of when it comes on risk for Static Cover until it is known when loading occurred.

65    The above arrangements in favour of viewing “From: 19 May 2018” in the operative placement slip as not contractually binding, but merely indicative of the likely time of the voyage may, perhaps, be seen not to recognise appropriately the importance of the Static Cover extension. It may be seen as too simplistic to call this a voyage policy and to identify some change by the creation of a partly time policy. The Master Slip always anticipated Static Cover prior to loading. It was, and was described as, an extension. The Master Slip identifies a range of dates within which the Static Cover and voyage policy is to attach. The commencement of transit cover under cl 8.1 will be by activity about which it may be difficult to be precise. As to goods that are stationary in a place, it is easy to understand cover for them (from damage or destruction while the helicopter is static before loading) being identified as attaching from a particular time. The underwriter then knows that it is on risk for Static Cover. Although, even if the goods are damaged or destroyed, the underwriter may not be liable to indemnify in the circumstances. The words “up to” before “5 days” can be seen to make its risk of liability to indemnify ambulatory. Nevertheless, it knows that risk attaches from that date (Picayune time, being the local time of the casualty causing damage or destruction for the Static Cover). So, if goods are destroyed such that they are never loaded the insurer may be on risk and may be liable to indemnify. The transit cover will commence by reference to cl 8.1. The exclusion in cl 4.3 for insufficiency or unsuitability of packing or preparation may now have little work to do if the “attachment of this insurance” is the earlier attachment of the Static Cover risk, as the underwriter conceded in argument here. In this way, giving 19 May 2018, Picayune time, as the contractual commencement of the Static Cover nominates a date at which risk attaches under the terms of the anticipated policy wording such that there can be seen to be no fundamental change to the character of the insurance placed from that anticipated in the Master Slip. Further, the insurer has certainty as to when risk attaches from the Static Cover extension and knows that the policy falls within the facility period since the risk attaches according to the policy terms prior to 12am 22 May 2018, Picayune time.

66    If 19 May 2018, Picayune time, can be taken as the time that Static Cover commences, the insurer is on risk from that date. Risk has attached during the facility period. If loading is delayed until 25 May, the cover, though initially attached on 19 May, will only respond for damage to the static property occurring from 20 to 25 May. This way of looking at the matter resolves a number of difficulties. First, the operative placement slip by identifying 19 May 2018 (Picayune time) does not change any features of the policy. It gives a starting date for cover under the Static Cover extension. If loading takes place within five days, say on 23 May 2018, the Static Cover is for four days (contemplated by the words “up to 5 days” in the Static Cover extension). If the loading takes place outside five days, say on 25 May 2018, the Static Cover is for five days (up to 5 days), but from 20 May. This time from which risk attaches (19 May 2018) is within the facility period, and so risk under the policy attaches within the facility period, even if the transit cover commences from loading (on 25 May on this hypothesis).

67    If the date adjacent to “Period of Insurance From:” in the operative placement slip is a reference to when Static Cover risk attaches it makes plain that the time and date used is, as is express in the Master Slip, local standard time, or Picayune, Mississippi time.

68    This approach gives effect to the whole policy, including the Static Cover extension. It gives a clear and certain time for insurer and insured for when this pre-loading property risk attaches. Being by reference to an act in Picayune (loading) it is most naturally assessed by local time, as was expressed in the Master Slip by the known acronym LST. All the placing broker requires are some instructions as to likely loading date and then the broker can nominate a date within the range of the Master Slip as to the preferred date for the commencement of the Static Cover.

69    This approach provides relevant work to do for all provisions of the wording. The plain words of the operative placement slip are given effect: “Period of Insurance: From 19 May 2018”. No part of the terms of the policy is otherwise compromised or made uncommercial. The date chosen operates to commence the insurance as extended by the Static Cover extension. In point of fact, by 19 May, Picayune time, the loading had finished and the voyage had begun. There is no evidence that there was any communication between broker and underwriter as to where the helicopter was, or what had happened about packing and loading. The underwriter was being asked to go on risk from a particular day in circumstances where the cover provided included Static Cover from a particular date and transit cover from (and including) loading. That cover was granted, with 19 May identified as the commencement of the period of insurance. In the context of the Master Slip and the reference therein to LST, and the extent of Static Cover being calculated by a local Picayune act (loading) the date is to be construed as by reference to Picayune time. On this basis, the exclusion in cl 4.3 plainly applies: the insufficiency or unsuitability of packing or preparation (packing including stowage into a container) was carried out prior to the attachment of the insurance.

70    The position is not alleviated or changed by recognising that the broker could just as easily, without prejudice or concern of anyone, have put 18 May 2018, and not 19 May 2018. The broker was putting in a date on which the insurance commenced. The broker did not give evidence. There is no evidence that the broker and the underwriter had any mutual knowledge of, or communication about, the state of the facts as they had occurred. It was within the broker’s power to obtain the complete facts and to assess precisely when the cover should commence.

71    The result is unfortunate: a one digit change to 18 from 19 would see the insurer liable. But it is not reliance on a technicality. The reference to 19 May 2018 was a statement with contractual force as to when the insurance commenced.

72    I do not see any basis for reading a part of the operative placement slip, the first of the contractual documents, as non-contractual and only indicative as to when the commencement of the voyage was anticipated. It says no such thing.

73    The above makes it unnecessary to discuss the cases as to calculation of time. The context of the cases referred to by the insurer were quite different. In any event, all the cases speak as one that it is ultimately a matter of construction of the contract in question. I have also given consideration to the decision in 1849 of the Supreme Judicial Court of Maine in Walker v Protection Insurance Co 29 Me 317 (1849) (WL 1742, 16 Shep 317), referred to by Gilman J and Merkin RM, Arnould’s Law of Marine Insurance and Average (17th ed, Sweet & Maxwell, 2010) at p 427 [13-06], where it was held that the time which determines the duration of the risk is that of the place where the contract was executed, unless it be shown that a different computation of time was contemplated. Here, the terms of the Master Slip (LST) and the identification of a date to commence insurance that contained as its earliest element Static Cover, the liability for which (up to 5 days) was by reference to an act done locally (loading) require the conclusion that it was local (Picayune) time, not AEST, that was intended. This was a single transit policy. There was no risk of multiple time zones demanding the simplicity of one time zone of the place of contracting.

74    The above makes it unnecessary to deal with a number of arguments. I will, however, briefly indicate my views as to them. First, as to the argument of the need for clarity if the unusualness of a mixed time and voyage policy was to be created, the words are clear. The date marks out the commencement of the policy. Further, with the Static Cover, it is a form of mixed policy if that characterisation be relevant: Static Cover for damage pre-loading and voyage cover thereafter.

75    Secondly, if it were necessary to address cl 8.1 of the 2009 ICC (A), the insurance attached when the helicopter moved in the hangar to take it outside for the purpose of loading. The container arrived at 3pm, the helicopter was moved in (that is from) the hangar to outside to be stowed into the container for placement immediately thereafter on to a truck for immediate departure. The immediacy required for cl 8.1 was present and satisfied.

76    Thirdly, the HST Endorsement did not amend cl 4.3 of the 2009 ICC (A). The risk of loading that was included was the risk of damage during loading. The risk of disassembly and packing that was not included was the risk of damage during those undertakings. Clause 4.3 deals with damage in transit caused by insufficiency or unsuitability of packing or preparation. This is not the risk of damage during disassembly or packing.

77    For the above reasons the question posed should be answered “No, the Applicant is not entitled to indemnity.” The parties should bring in short minutes to finalise the matter.

Associate:

Dated:    16 January 2020

Annexure A