Scottish Court of Session Decisions

Nobel's Explosives Company, Limited, pursuers, brought an action against The British Dominions General Insurance Company, Limited, defenders, for payment of various sums amounting in all to £9534, representing the value of certain property, insured by the pursuers with the defenders, which had been damaged or destroyed in consequence of a series of explosions.

The policies of insurance in question each contained the following clause:—“This policy is to cover the risk of loss of and/or damage to the property hereby insured directly caused by rioters, civil commotions, war, civil war, revolutions, rebellions, military or usurped power, including the risk of fire and/or explosion directly caused thereby and originating on the premises insured or elsewhere.”

The pursuers averred, inter alia—“(Cond. 6) On the night of 30th July 1915 a series of

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explosions occurred in the pursuers' factory at Ardeer in the new or Misk factory. The pursuers have now ascertained that the first of the series of explosions took place in the crystallising house of the old plant in the T.N.T. department. The series of explosions was very violent. The first explosion of the series which occurred on the night of 30th July was followed at intervals, up to about 3 a.m. on the 31st July, by nine or ten other explosions, and about 10·30 in the morning of the 31st of July the most violent explosion of all took place. This last explosion not only wrecked buildings which had not been affected by the previous explosions but completely demolished many of the buildings which had been shaken by the previous explosions but still remained standing. This last explosion was the explosion of a material known as T.N.T. oil, which is the residue from the crystallisation of T.N.T., contained in about 180 drums which were standing near the T.N.T. plant in open ground. These drums had been ignited by the previous explosions and some of the drums nearly burnt themselves out but upon a detonation occurring, as it did in one or two of the drums, the rest of them exploded with tremendous violence. The whole of the old T.N.T. plant and buildings were completely destroyed, but although the buildings of the new plant were badly damaged it was found on examination that no explosion had taken place inside any one of them nor in the plant which they contained. The damage to the plant was unimportant and such as would be produced by a severe explosion in the vicinity and by falling debris of the containing buildings. The picric acid plant was also totally destroyed by fire, although one or two small explosions of picric acid had occurred. Two guncotton stoves were exploded at intervals by flying debris and one burnt away without explosion. Three cordite blending-houses and three cordite stoves caught fire and were burnt away, and some of the cordite buildings of the old factory were totally destroyed. (Cond. 7) The pursuers immediately after the said explosion made a careful and searching investigation into the facts, and have ascertained and aver that the said explosions were caused by the act of an enemy or of a person acting on behalf of an enemy. As the result of their inquiries the pursuers have definitely excluded as the origin of the explosions all causes independent of human agency. They have further excluded the possibility that the explosions were caused by fire or by the act or default of any member or members of the staff on duty in the T.N.T. department. The movements of all the men at work in that department have been made the subject of inquiry, as the result of which it has been ascertained that at and before the explosion these men were all engaged upon their allotted work. No work was being done either by them or by any other of the pursuers' employees in the crystallising house of the old plant, nor had any of the said men or of the said other employees been in it for some hours previously. The explosion, unless caused by hostile aircraft, must have been caused by the deliberate act of some unknown person who entered the area of the T.N.T. department without authority. The pursuers believe and aver that such person was an enemy agent. The explosion can only be accounted for as having had its origin in the act of such an intruder, who could easily have introduced fuses, detonators, and other material necessary to cause the explosion. The explosion was accordingly caused by an act of war. The loss and damage caused to the pursuers by the said explosions were thus covered by the war risk clauses above quoted in the said policies. With reference to the statements in answer, explained that the defenders received notice of the explosion immediately after its occurrence and that they had ample opportunity of making investigations into the whole circumstances of the explosion. The defenders, however, failed to take advantage of such opportunity.”

The defenders pleaded, inter alia—“1. The pursuers' averments being irrelevant and lacking in specification, the action should be dismissed.”

On 9th November 1917 the Lord Ordinary ( Cullen) sustained the first plea-in-law for the defenders and dismissed the action.

Opinion.—“The pursuers own and carry on a manufactory of explosives at Ardeer in the county of Ayr.

They aver that on the night of 30th July 1915 a series of explosions occurred in their factory whereby loss and damage was occasioned to them estimated at £220, 963.

Under two policies of insurance issued by the defenders the pursuers were insured against, inter alia, loss or damage caused their property directly by ‘… war. …’

The pursuers in this action now sue on these policies. They also (cond. 5) sue on a similar policy issued to them by another company, the North-Western Insurance Company, Limited, dated 1st February 1915, as to which they aver that ‘the defenders have acquired the business of the said North-Western Insurance Company, Limited, and have taken over the company's assets and liabilities, and are accordingly liable to make good any loss arising under' the North-Western Company's policy.

The relevancy of the pursuers' averments in relation to this last-mentioned policy is challenged by the defenders on the ground that they do not disclose a jus qucesitum tertio entitling the pursuers to sue the defenders. Prima facie this challenge seems well founded, and Mr Moncrieff for the pursuers stated that he did not maintain the contrary.

The questions now at issue thus relate to the two policies issued by the defenders' company. There is a preliminary question as to due notice of the arising of the claim having been given to the defenders as required by the policies. As to this matter parties were at one that on the averments inquiry would be necessary if the pursuers' averments otherwise were relevant.

The broader question, on which alone I heard argument, and which I have now to determine, is whether the pursuers' averments are relevant to show that the explosions

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in question were directly caused by ‘war.’

The pursuers aver that their inquiries into the origin of the explosions show, as they are prepared to prove, that these must have been occasioned by the intervention of a human agent. They say they do not know who this agent was. They aver that he was an enemy agent. This general averment of enemy agency is not irrelevant in a wide sense, but it is lacking in specification in not giving the defenders due notice of what might be proved under it. But Mr Moncrieff for the pursuers explained that the intended scope of this general averment was to be measured by the other averments which accompany it, and that while the pursuers had been unable to discover and were unable to offer to prove who the intervening human agent was, they relied on a proof of said other averments as relevant to establish that he must have been an enemy agent.

The averments which the pursuers offer to prove are these—(1) that the explosions, as before mentioned, involved the intervention of a human agent; (2) that the explosions could not have been caused by any act or default of any member of their staff on duty in the department of their factory in question, whose activities and whereabouts have been all duly accounted for incompatibly with the possibility of any of them having been an agent in causing the explosions. The terms of the averments (Cond. 7) are as follows:—‘The pursuers immediately after said explosion made a careful and searching investigation into the facts, and have ascertained and aver that the said explosions were caused by the act of an enemy or of a person acting on behalf of an enemy. As the result of their inquiries the pursuers have definitely excluded as the origin of the explosions all causes independent of human agency. They have further excluded the possibility that the explosions were caused by the act or default of any member or members of the staff on duty in the T.N.T. department. The movements of all the men at work in that department have been made the subject of inquiry, as the result of which it has been ascertained that at and before the explosion these men were all engaged upon their allotted work. No work was being done either by them or by any other of the pursuers' employees in the crystallising house of the old plant, nor had any of the said men or of the said other employees been in it for some hours previously. The explosion, unless caused by hostile aircraft, must have been caused by the deliberate act of some unknown person who entered the area of the T.N.T. department without authority. The pursuers believe and aver that such person was an enemy agent. The explosion can only be accounted for as having had its origin in the act of such an intruder, who could easily have introduced fuses, detonators, and other material necessary to cause the explosion. The explosion was accordingly caused by an act of ‘war.’

The pursuers in stating their media concludendi thus proceed, in point of logic, as by way of a process of exclusion. They offer circumstantial evidence which they say can only lead to the one conclusion, to wit, that the explosions must have been caused by an enemy agent.

I think that the pursuers' view confuses probability with proof. Assuming the truth of their said averments it may be a conjecture of some probability that the hand of an enemy agent was at work. But I do not think that their averments at the most carry the matter beyond such a conjecture. Quomodo constat that the human agent involved was not some dismissed and resentful employee minded to wreak his revenge, or an outsider actuated by an instinct for malicious mischief, or a person of disordered mind. The pursuers argue that where the responsibility of a particular person for his conduct is at issue there is a presumption in favour of innocence or sanity as the case may be. But the person involved here is unknown. The pursuers apply their view with the effect of throwing on the defenders the task of finding out the perpetrator, which task they themselves have failed to accomplish, and then of proving that he was not an enemy agent. I do not think that the pursuers are justified in so shifting the onus on to the defenders. The pursuers have to prove their claim under the policies, and it seems to me that, assuming the truth of their averments with which I am dealing, they leave the claim unproved.

Following these views, I shall sustain the defenders' plea to the relevancy, and dismiss the action.”

The pursuers reclaimed, and in the course of their argument referred to the case of Rankin & Company v. Cunard Company, heard in the King's Bench Division and reported in the Times of 16th February 1918.

Counsel for the defenders did not cite any authorities.