JUDGMENT Chandrasekhara Menon, J. 1. The 3rd defendant is the appellant before this court. The suit from which this appeal arises was filed by the 1st respondent who is an endorsee of a bill of lading for realisation of the value of goods and interests thereon due to non-delivery of the same. Messrs. Malabar Trading Agency, Cochin had shipped from Cochin Port on board "Jai Vakrangi" 60 bags of betal-nuts bearing the marks "V.G. Bombay"� to be delivered over to their order at the Port of Bombay. This steamer belonged to the 1st defendant-company who had issued to the consignors a clean shipped bill of lading dated 14th January 1967 marked as Ext. P-1 in this suit. According to the plaintiff the goods were shipped in good order and condition. The said goods had been insured with the appellant-Insurance Company for which they had issued a certificate of insurance. Under the terms and the contract of insurance, the plaintiff alleges that the 3rd defendant had rendered themselves liable for the safe delivery of the goods without any damage. The bill of lading was made over to the plaintiff by the consignors. The plaintiff in their turn arranged with their bankers to effect delivery of the consignment to the plaintiffs buyers against payment and retiring of documents. On the failure of the buyers to honour the hundi and take delivery, the plaintiff arranged through their bankers to take delivery. When the plaintiffs agent demanded delivery of goods as per the bill of lading it is alleged that the 1st defendant failed to give delivery. It is in these circumstances that the suit was brought. 2. The 1st defendant denied that the Malabar Trading Agency shipped the goods concerned through their ship from Cochin as alleged. The plaintiff was put to strict proof of shipment alleged to have been made. It was contended by the company that the consignment was not shipped at all. The company could not deliver any goods to the named consignee. The contentions seem to be that the concerned goods were not put on board the ship at all. The plaintiff was put to strict proof of shipment alleged to have been made. It was contended by the company that the consignment was not shipped at all. The company could not deliver any goods to the named consignee. The contentions seem to be that the concerned goods were not put on board the ship at all. The appellant-Insurance Company said that they had entered into a contract with the shipper Malabar Trading Agency for insurance of their consignment and accordingly open policy No. C/Op/519/66 for a limit of two lakhs rupees and another policy No. C/Op/9/67 for one lakh of rupees were issued by the Insurance Company on 22nd November 1966 and 14th January 1967 respectively. These policies covered risks of F. P. A. as per Institute Cargo Clauses (F. P. A.) for consignment of ginger, pepper, betel-nuts, Ambahalder and such other hill produce goods from Cochin to any port in Indian Union shipped under deck in any first class steamer owned by recognised lines. The Insurance Company contended that the plaintiff should prove that the quantity of betel-nuts said to have been shipped, was put on board the vessel. In any event they have undertaken responsibility only for risks expressly mentioned in the open policy when the goods are being loaded in the steamer and discharged from the steamer at the destination. 3. The learned Subordinate Judge who disposed of the case held that the cargo had actually been loaded in the ship by the 2nd defendant and that there is absolutely no evidence to show that the plaintiff is party to any fraud in obtaining the endorsement of the bill of lading. Therefore the court held that the liability of the 1st defendant is clear from doubt. As regards the appellant-Insurance Company the court held that they are liable for the damages along with the 1st defendant. The basis of such a finding against the appellant was that there is a clause in the policy itself that the risk covered all losses and misfortunes. When it is seen that the cargo is also put on board and when there is no-explanation by the shipping company how the cargo was lost it is really a misfortune. The basis of such a finding against the appellant was that there is a clause in the policy itself that the risk covered all losses and misfortunes. When it is seen that the cargo is also put on board and when there is no-explanation by the shipping company how the cargo was lost it is really a misfortune. The court said that as far as the insurer is concerned, it is certainly a misfortune as there is no explanation by the shipping company how the goods were lost and no circumstances is even pointed out how it might have been lost. The learned Judge was following a decision of the Madras High Court in A.I.R. 1955 Mad. 603. It was pointed out by the court that in the insurance policy the words losses and misfortunes occur after describing several kinds of risks ending with all other perils. That, according to the Judge, will show that loss and misfortune is really for covering risk outside the term perils of the sea. The court further observed that F.P.A. clauses annexed to the insurance policy is only portion of the terms of the contract of insurance and so the F. P. A. clauses will not take away the legal effect of the risk covered by the term losses and misfortunes. 4. This appeal, as stated earlier, has been filed by the Insurance Company. The only question, therefore, that arises in this appeal is whether the non-delivery by the 1st defendant which resulted in the loss of goods is a risk which is covered under Exts.D-1 and D-2 Marine Policies. Learned counsel for the appellant contended that the decision reported in A.I.R. 1955 Mad. 603 is not correct law and the court below has erred in following that decision resulting in the decree of the suit against the appellant. It was argued that the term misfortunes found in the Marine Insurance Policy will not include loss due to non-delivery by the carrier. It is a term which is enumerated along with other perils of the sea in the Marine Policy and comes in only when the loss can be reasonably attributed to the proximate cause of one of the perils enumerated therein. Non-delivery of goods due to negligence and/or misconduct of the carrier is not a risk covered by the Policy of Marine Insurance. Non-delivery of goods due to negligence and/or misconduct of the carrier is not a risk covered by the Policy of Marine Insurance. Learned counsel contended that the words loss and misfortune should be read ejusdem generis with those perils mentioned earlier which will only come within the category of perils of the sea. 5. Before going into the question it will be advantageous if the relevant portion of the policy is extracted. The risk that is insured against is: "Subject to the terms and conditions of open policy as per clause attached, touching the adventures and perils which the Concord of India Insurance Company, Limited, themselves are content to bear, and do take upon themselves in this voyage, they are, of the seas, men of war, fire, enemies, pirates, rovers, assailing thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition and quality soever, Barratry of the Master and Mariners, and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises, or any part thereof. And in case of any loss or misfortune, it shall be lawful to the assured, his or their factors, servants and assigns to sue, labour and travel for, in and about the defence, safeguard and recovery of the said goods and merchandises, or any part thereof, without prejudice to this insurance; to the charges whereof the company will contribute in proportion to the sum herein assured. And it is especially declared and agreed that no acts of the insurer or the insured in recovering, saving or preserving the property insured shall be considered as a waiver or acceptance of abandonment. And so the concord of India Insurance Company Limited are content and do hereby promise and bind themselves, their heirs, executors and goods to the assured, his or their executors, administrators or assigns for the true performance of the premises; confessing themselves paid the consideration due unto them for this insurance at and after the rate of as per margin per cent."� 6. The F. P. A. clause is as follows: "Warranted free from particular average unless the vessel or craft be stranded, sunk, or burnt, but notwithstanding this warranty the underwriters are to pay the insured value of any package or packages which may be totally lost in loading, transhipment or discharge, also for any loss of or damage to the interest insured which may reasonably be attributed to fire, explosion, collision, or contact of the vessel and/or craft and/or conveyance with any external subtance (ice included) other than water, or to discharge of cargo at a port of distress, also to pay special charges for landing, warehousing and forwarding if incurred at an intermediate port of call or refuge, for which underwriters would be liable under the standard form of English marine policy with the institute cargo clauses (WA) attached. This clause shall operate during the whole period covered by the policy."� 7. This being a Marine Insurance the question will have to be considered under the provisions of the Marine Insurance Act, 1963 Act 11 of 1963 (shortly stated the Act). This is an Act codifying the law relating to Marine Insurance. It embodies the legal principles and rules of Marine Insurance though perhaps not all the legal principles and rules. The most general rule of construction of a marine policy is that it is to be construed according to its sense or meaning as collected from the terms used in it; and these terms are to be understood in their plain, ordinary, and popular sense, unless they have by the known usage of trade acquired a peculiar meaning distinct from the popular sense of the same words or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties, be understood in some other special and peculiar sense. As observed by Lord Wright in Rickwards v. Jorestal 1942 S.C. 50 at 79 the decided cases from which the law is evolved are to be referred to in construing a policy of marine insurance. 8. Under section 2 (a) of the Act a contract of marine insurance means a contract of marine insurance as defined by section 3. As observed by Lord Wright in Rickwards v. Jorestal 1942 S.C. 50 at 79 the decided cases from which the law is evolved are to be referred to in construing a policy of marine insurance. 8. Under section 2 (a) of the Act a contract of marine insurance means a contract of marine insurance as defined by section 3. Section 3 defines a contract of marine insurance as an agreement whereby the insurer undertakes to indemnify the assured, in the manner and to the extent thereby agreed, against marine losses, that is to say the losses incidental to marine adventure. Marine adventure is also defined in the Act under section 2 as including any adventure where" "(i) any insurable property is exposed to maritime perils; (ii) the earnings or requisition of any freight; passage money, commission, profit or other pecuniary benefit, or the security for any advances, loans, or disbursements is endangered by the exposure of insurable property to maritime perils; (iii) any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property by reason of maritime perils."� Maritime perils is defined as meaning: "the perils consequent on, or incidental to, the navigation of the sea, that is to say, perils of the seas, fire, war, perils, pirates, rovers, thieves, captures, seizure, restraints and detainments of princes and peoples, jettisons, barratry and any other perils which are either of the like kind or may be designated by the policy."� 9. We have also to take into account rule 12 of the Rules for construction of policy. It is stated therein that the term all other perils includes only perils similar in kind to the perils specifically mentioned in the policy. We might refer to some cases in the matter. In Middows v. Robertson 1940-67 (II) L-R 484 the policy included the risks of theft, pilferage and non-delivery Hilbery, J., held that non-delivery did not create an additional risk, but meant that the assured need only prove non-delivery in circumstances consistent with theft or pilferage, and that it was then for underwriters to show that the loss was caused by something for which they were not liable. Usually when a policy includes the words "all other perils, losses and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises or any part thereof, which are more in the nature of a general clause, it has been held that this general and sweeping clause includes only perils similar in kind to the perils specifically mentioned in the policy, that is to say that ejusdem generis rule of construction has to be applied to it, as in other cases where specific words are followed and amplified by general words. 10. Thames and Mersey Marine Insurance Co. v. Hamilton 1887 (12) App. Cas. 484 is an important decision on the general clause. The case raised the general question as to the liability of underwriters for damage to ships machinery. The air-chamber of a donkey-pump burst because a valve which should have let the water into the boiler was stopped up while the pump was being worked by the donkey-engine. A claim being made by the ship owner, it was urged on his behalf that the damage was caused by a danger to navigation, and therefore by a peril similar to perils of the seas. The House of Lords, however, while accepting the principle established in Cullen v. Butler 1815 (5) M & S 461 held that it was impossible to say that the damage in this case was of a character to which a marine adventure is specially subject, and on this ground dismissed the claim (as summarised in the well-known work of Arnould on the Law of Marine Insurance and average page 852). 11. The principle established in Cullen v. Butler 1815 (5) M & S 461 referred in the above case is the statement of Lord Ellenborough as to the proper construction of general words in a policy of marine insurance which as stated by Lord Atkinson in Stott Steamers Ltd. v. Marten 1916 A.C. 304 at p. 311 has been many times approved of. He (Lord Ellenborough) said that due effect would be given to the general words by allowing them to comprehend and cover other cases of marine damage of the like kind with those which are specially enumerated and occasioned by similar causes. By the word marine damage Lord Herschell in Thames and Mersey Marine Insurance Co. v. Hamilton, Fraser and Co. 1887 (12) App. Cas. By the word marine damage Lord Herschell in Thames and Mersey Marine Insurance Co. v. Hamilton, Fraser and Co. 1887 (12) App. Cas. 484 took Lord Ellenborough to have meant not only damage caused by the sea, but damage of a character to which marine adventure is subject. 12. 1916 A.C. 304, (cited supra) another case decided by the House of Lords is also one dealing with the general clause "and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment, or damage of the said.. ship, etc. The appellants in that case, who were owners of the steam ship Ussa had effected a policy of marine insurance upon the steamer. The respondents were underwriters on this policy, which contained the aforementioned general clause. 13. On October 23, 1911, the Ussa was lying in the Bramley Moore Dock at Liverpool with her port side along the dock wall. On her starboard side was the floating steam crane Atlast, belonging to the Mersey Docks and Harbour Board. The Atlast carried a 100 ton crane with a jib reaching 21 feet, 6 inches from the ships side. In the base of the crane was a water ballast tank which operated as a counter-balance. The Atlast had conveyed three boilers from the Canada Dock to load them on the Ussa. One of these boilers hung on the crane in a sling which was made fast to a shackle. This boiler was lifted and swung over the Ussras side. It was so large that in order to get it through the hatchway and down into the hold of the Ussa it had to be tilted. As the boiler was being lowered it caught in the hatch coamings, and the weight being thus taken off the jib of the crane, the counter-balance caused the Atlast to list to port. The result was that the jib was lifted, causing the chain fall, which had slackened when the boiler caught in the coaming, to become taut again. The boiler then came free with a jerk and the pin of the shackle holding the sling carried away, with the result that the boiler fell and seriously damaged the hull of the Ussa. 14. An action on the policy ensued. The trial Judge and the court of Appeal held that the loss was not recoverable under the policy. The boiler then came free with a jerk and the pin of the shackle holding the sling carried away, with the result that the boiler fell and seriously damaged the hull of the Ussa. 14. An action on the policy ensued. The trial Judge and the court of Appeal held that the loss was not recoverable under the policy. This decision was affirmed by the House of Lords. Viscount Haldane said at page 307: "Turning first of all to the well-known language of the policy itself, I am of opinion that it is now settled law that the words of the clause describing the adventures and perils insured against indicate that the scope of this clause is confined to the genus of adventures and perils of the seas, and that the reference to other perils, losses and misfortunes, with which the clause concludes, is limited to those that are of this genus. Since the judgement of this House in Thames and Mersey Marine Insurance Co. v. Hamilton Fraser and Co., I conceive that this point has become a settled one". Lord Atkinson observed at pages 310 and 311: "Is the accident which caused injury to the ship a peril of the sea or a peril ejusdem generis as perils of the seas. That it is not a peril of the seas properly so called is admitted. So, then, the question is this, is it one of the same genus of perils of which true perils of the seas are species. A peril whose only connection with the sea is that it arises on board a ship is not necessarily a peril of the seas nor a peril ejusdem generis as a peril of the sea. The breaking of the chain of a crane, or of a shackle of that chain, if overloaded or subjected to too severe a strain, is not more maritime in character when it occurs on board a ship than when it occurs on land. Nor is the catching the end of a lengthy boiler on the coamings when being lowered into the hold of a ship through a hatchway more maritime in its character than would be the catching on land of any piece of machinery on the sides of an opening shorter than itself through which it was being lowered. Neither the winds nor the waves contributed to this accident. Neither the winds nor the waves contributed to this accident. Nor did the fact that the ship on which it occurred was waterborne. The listing of the Atlast to port tended to take up the slack of the chain and to diminish the extent of the drop, and therefore of the strain, when the boiler got free, rather than the contrary. Lord Dunedin said at page 313: "That seems to me to dispose of what the learned counsel called his wider proposition, namely, that all accidents in loading are covered. Loading is a necessary preliminary to the voyage of a freighted ship, but so is the filling of the boiler. In both cases you have to look further and see whether the accident itself had, as Lord Halsbury put it, 'anything to do with the sea."� 15. In a case from British Columbia the Privy Council had to consider what is meant by perils of the sea in a Marine Insurance. In that case, Canada Rice Mills Ltd. v. Union Marine and General Insurance Co. A.I.R. 1941 P.C. 68 Lord Wright said that if there is an accidental incursion of sea water into a vessel at a part of the vessel and in a manner where sea water is not expected to enter in the ordinary course of things and there is consequent damage to the thing insured, there is prima facie a loss by perils of the sea. The accident may consist in some negligent act, such as improper opening of a valve, or a hole made in a pipe by mischance, or it may be that sea water is admitted by stress of weather or some like cause bringing the sea over openings ordinarily not exposed to the sea or, even without stress of weather, by the vessel heeling over owing to some accident or by the breaking of hatches or other coverings. It is the fortuitous entry of the sea water which is the peril of the sea in such cases. It is the fortuitous entry of the sea water which is the peril of the sea in such cases. There he also considered the scope of the general words all other perils, losses and misfortunes, etc., and said at page 74: "It is true that these general words have to be construed as restricted to cases akin to or resembling or of the same kind as those specially mentioned: per Lord Macnaghten in 1887 (12) A.C. 484 at p. 501 where they were held not to cover the loss claimed but subject to that limitation they may be used to give some extension to the specific perils, such as perils of the seas."� 16. In the light of these decisions let us consider the observations made in the Madras case Home Insurance Co. v. Ramnath and Co. A.I.R. 1955 madras 602 cited supra by Basheer Ahmed, J., at page 605, which has been followed by the learned Sub Judge in this case. The relevant portion of the observations is extracted herein below: "In the case of insurance company, defendant 2, the learned counsel for the appellants contended that the plaintiff cannot succeed, unless and until the loss of the goods was proved to have been due to a peril of the sea and the burden of proving that the loss was due to such a peril was entirely on the plaintiff. He further contended that so long as the burden is not discharged, the insurance company cannot be made liable. The learned counsel also referred to the extent of liability of the insurance company under the clause warranted free from particular average. He has invited my attention to certain passages in the Law of Insurance in British India by N. Barwell 1940 Edn. at pp. 103, 118 and 167. I do not think that the points commented upon in these passages do arise in this case because what is claimed by the plaintiff is merely the price of the goods and nothing more. Particular average meaning partial loss does not seem to have any relevance in the present case. Learned counsel for the appellant also invited my attention to Halsburys Laws of England, Vol. XVIII, at pp. 186 and 322. Particular average meaning partial loss does not seem to have any relevance in the present case. Learned counsel for the appellant also invited my attention to Halsburys Laws of England, Vol. XVIII, at pp. 186 and 322. He attempted to put a very restricted scope of the terms of the policy that all other perils, losses and misfortunes would not imply any loss on board the ship, unless it be of the particular type referred to in the clause in the insurance policy, Ex. A. 23. The fact remained that in this case the goods were put on board the ship and they were carried through the sea, but they did not arrive at the port of destination. The term misfortunes after having mentioned in the other perils of the sea, is found in the relevant clause in the insurance policy. It is difficult to say how the loss of the total goods on board the ship, when once it is proved that they were put on board, could be excluded from the scope and meaning of the word misfortunes. The learned counsel for the appellant stated that according to the ejusdem generis rule, the misfortune should be of the same clause, category and character as those falling within the category perils of the sea. But I do not think that such a rule will apply in the present case, when almost all the kinds of perils of the sea have been exhaustively given in the list and when in addition to that the word misfortune is also included. The insurance company in my opinion seeks merely to take shelter under the shipping company to avoid its liability for the loss of the goods insured with them. On a proper and reasonable interpretation of the clause contained in the insurance policy, the insurance company cannot escape liability for a total loss of the kind that has been in the present case, which loss must be put down to lie within the scope of the terms losses and misfortunes. On a proper and reasonable interpretation of the clause contained in the insurance policy, the insurance company cannot escape liability for a total loss of the kind that has been in the present case, which loss must be put down to lie within the scope of the terms losses and misfortunes. Merchants insure the goods with the company to cover any risk in their being safely landed at the port of destination, and if the goods are not so landed, when once they were put on board, and if the loss of the goods has arisen, then certainly it is a loss and a misfortune which is covered by the terms of the insurance policy. In my opinion, the insurance company cannot, therefore, be exonerated from its liability to honour its obligation to the insured. I am, therefore, of the opinion that on the fact of this case and in view of the terminology used, the insurance company as well as the shipping company will both be liable to the plaintiff."� 17. We are of the view that this does not lay down correct law on the matter and runs counter to the principle laid down in the various English cases cited above. The words loss and misfortune could only be construed as restricted to cases akin to or resembling or of the same kind as those specially mentioned, but subject to the limitation they may be used to give some extension to the specific perils. An F.P.A. policy also could cover perils insured against which are perils of the seas only. We may here quote with advantage the following passage in para 121 of Arnoulds Law of Marine Insurance and Average 15th Edn.: "The ejusdem generis and causa proxima rules." These are two rather specialised rules, the first is concerned with the meaning to be attached to general words added to special words for the purpose of amplifying them; thus, at the end of the list of perils insured against by the Lloyds policy we find the words all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandise, and ship. These words are not to be taken as meaning that the insurers are to be liable for loss however caused; if so, the enumeration of the earlier perils would be meaningless but rather as referring to perils similar in kind to those perils which have been specifically mentioned. This is called the ejusdem generis rule of construction. The other is concerned with the problem of deciding whether the loss or damage claimed for under a policy of insurance is properly attributable to a peril insured against. For it may be so indirectly connected with such peril that it cannot be considered as caused by it; this is called the causa proxima rule; it is not properly speaking a rule of construction."� 18. In the instant case the only ground in which the amount is claimed is non-delivery. It may be a good ground against the shipping company but not against the insurance company. There is no allegation in the plaint that the loss was occasioned on account of a maritime peril. It is only a marine adventure which may be the subject of contract of marine insurance and we have indicated earlier as to what marine adventure would include. 19. The ordinary rule is that where, upon evidence, the court is left in doubt whether the loss was due to a peril insured against or to some cause not covered by the policy, then the plaintiff having failed to discharge the burden which lies upon him of showing that his loss is covered by the policy, there must be judgment for the defendant underwriter. see Arnould paras 1272 and 1273. 20. In the present case there is not even an allegation much less proof that the non-delivery was due to a maritime peril. 21. Therefore, we think that the appeal has to be allowed. 22. The judgment and decree of the court below as far as it is against the appellant is set aside and the appeal allowed with costs. The suit is dismissed as against the Insurance Company.