Facts

# Forfeiture of the claim for compensation against the insurer due to contractual clause **Parties:** - Plaintiff: Baffra A.-G. - Defendant: "Switzerland\" General Insurance Co. **Facts:** - The Colcao A.-G. concluded an insurance contract with "Switzerland\" for the transport of goods, based on the "General Conditions for the Insurance of Goods Transport\" (ABVT 1940). - Colcao reported a transport of 26,417 bales of tobacco for insurance, which was sent from Samsun and Istanbul to Hamburg. - Significant damage to the tobacco was discovered during unloading in Hamburg. - The Inventa, the entitled party, refused to provide the advance payment for the damage assessment and independently commissioned an expert. - "Switzerland\" rejected the damage assessment and invoked the forfeiture of the claim. - The Commercial Court of Zurich dismissed the lawsuit of Baffra A.-G., as the damage assessment did not comply with the ABVT. **Reasoning:** **Applicability of the ABVT 1940:** The plaintiff argued that the insurance certificate did not refer to the ABVT 1940 and therefore these conditions were not applicable. The Federal Supreme Court rejected this, as the certificate referred to the conditions listed on the back, which were designated as an excerpt from the ABVT 1940. Thus, the ABVT 1940 were applicable. **Damage Assessment:** The Federal Supreme Court confirmed that the damage notification complied with the requirements of Art. 32 ABVT. However, the Inventa violated Art. 34 ABVT by independently commissioning an expert without involving the average adjuster of the insurer. This led to the forfeiture of the claim pursuant to Art. 42 lit. b ABVT. **Advance Payment Obligation:** The Federal Supreme Court emphasized that the Inventa was obliged to advance the necessary means for the damage assessment to the average adjuster. The Inventa's refusal to do so, as well as the independent commissioning of an expert, led to the forfeiture of the claim. **Excuse under Art. 45 IPA:** The plaintiff argued that the failure to comply with the obligations under Art. 45 IPA was excusable. The Federal Supreme Court rejected this, as the Inventa could not provide valid reasons for its failure. Ignorance of the insurance conditions was considered inexcusable. **Abuse of Rights:** The…