Rhesa Shipping Company S.A. v Edmunds (Popi M)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Diplock,Lord Roskill,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 16 May 1985 |
| Judgment citation (vLex) | [1985] UKHL J0516-2 |
| Court | House of Lords |
| Date | 16 May 1985 |
and
[1985] UKHL J0516-2
Lord Fraser of Tullybelton
Lord Diplock
Lord Roskill
Lord Brandon of Oakbrook
Lord Templeman
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons given by him I would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. I agree with it and for the reasons which he gives I would allow the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. For the reasons which he gives in his speech I too would allow this appeal.
My Lords,
This appeal arises out of two consolidated actions in the Commercial Court in which the owners of the vessel " Popi M" ("the ship") claim against hull underwriters for the alleged total loss of the ship by perils of the sea. The shipowners succeeded at first instance ( Bingham J.) and an appeal by underwriters to the Court of Appeal (Sir John Donaldson M.R. and O'Connor and May L.JJ.) was dismissed. Underwriters now, with the leave of the Appeal Committee, bring a further appeal to your Lordships' House.
My Lords, the appeal does not raise any question of law, except possibly the question what is meant by proof of a case "on a balance of probabilities." Nor do underwriters challenge before your Lordships any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether, on the basis of those primary findings of fact, Bingham J. and the Court of Appeal were justified in drawing the inference that the ship was, on a balance of probabilities, lost by perils of the sea.
In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.
The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them.
This second matter appears clearly from certain observations of Scrutton L.J. in La Compania Martiartu v. The Corporation of The Royal Exchange Assurance [1923] 1 K.B. 650. That was a case in which the Court of Appeal, reversing the trial judge, found that the ship in respect of which her owners had claimed for a total loss by perils of the sea, had in fact been scuttled with the connivance of those owners. Having made that finding, Scrutton L.J. went on to say, at p. 657:
"This view renders it unnecessary finally to discuss the burden of proof, but in my present view, if there are circumstances suggesting that another cause than a peril insured against was the dominant or effective cause of the entry of sea water into the ship … and an examination of all the evidence leaves the Court doubtful what is the real cause of the loss, the assured has failed to prove his case."
While these observations of Scrutton L.J. were, having regard to his affirmative finding of scuttling, obiter dicta only, I am of opinion that they correctly state the principle of law applicable. Indeed counsel for the shipowners did not contend otherwise.
My Lords, the relevant findings of fact, made by Bingham J. after a hearing which occupied 12 days, were as follows:
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(1) The ship was an old one built in 1952. By 1976 she had become very seriously run down. Since 1976 she had been repaired in an unmethodical way, but the ship as a whole, and her shell plating in particular, were still in a generally wasted condition.
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(2) The ship was constructed with the bridge amidships, three holds (nos. 1, 2 and 3) forward of the bridge and two further holds (nos. 4 and 5) abaft the bridge.
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(3) The engine room occupied the space between the three forward and the two after holds. A shaft tunnel ran aft from the engine room, in which there were contained not only the propeller shaft but also the bilge lines serving the two after holds.
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(4) There was a watertight door between the engine room and the shaft tunnel, which was normally left open, but which, if securely closed, would prevent water running from the engine room into the shaft tunnel or vice versa.
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(5) The bilge lines serving the two after holds were fitted with non-return valves which, when in position, allowed pumps to draw water from the bilges of those two holds, but prevented water from running the other way into them.
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(6) The buoyancy of the ship's various compartments was such that, if the engine room spaces alone became flooded, the ship would remain afloat. But, if the after holds became flooded as well, the ship would sink.
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(7) On 29 July 1978 the ship left Rouen laden with a full cargo of sugar in bags and bound for Hodeidah in the Yemen. Her drafts on leaving were such as to show that she was slightly, but in no way excessively, hogged.
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(8) During the voyage prior to her sinking the ship experienced good weather and light seas, except for a few days after passing Ushant and entering the Bay of Biscay. During those few days she encountered north-north-westerly winds up to force 7, with correspondingly high seas and rolling of the ship. After rounding Cape Finisterre on 1 August 1978 until her sinking she navigated continously in light winds and calm seas.
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(9) The events which led to the sinking of the ship began in the engine room at about 10.50 a.m. on 5 August 1978. The ship was then in the Mediterranean opposite the coast of Algeria. At or about that time there was a loud noise with some accompanying vibration and large quantities of sea water gushed into the engine room through an aperture in the shell plating on the port side.
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(10) The main part of the aperture was vertical, extending from below the plates forming the floor of the engine room and running about 2 metres up the ship's side. There was also a smaller horizontal aperture.
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(11) Upon the entry of water in this way the pumps were put on to the engine room bilges, but could not cope with the inflow. One of the third engineers, who was in the engine room at that time, was further ordered to close the watertight door between the engine room and the shaft tunnel, which he set about doing.
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(12) The entry of water was not, in the event, confined to the engine room, but extended also to the two after holds. There were two reasons for this. The first reason was that the third engineer did not succeed in closing completely the watertight door between the engine room and the shaft tunnel. The second reason was that the non-return valves in the bilge lines serving the two after holds had earlier been removed for maintenance, and, because of interruption by more urgent work, had not as yet been replaced.
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(13) In this situation the general alarm was sounded and the crew were ordered to take their places by the lifeboats. At about 11.40 a.m. the lifeboats were lowered and a S.O.S. signal was sent out. At about noon an order to abandon ship was given.
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(14) Upon that order being given the crew went into the lifeboats and were later picked up by a British tanker which had come on the scene in response to the S.O.S. signal. Those on board the tanker made various efforts to save the ship, all of which failed. At about 6.15 p.m. the ship sank stern first in deep water.
My Lords, with regard to the cause of the ship's loss, the shipowners relied at one time on negligence of the crew (which was also covered by the relevant policies) as an alternative to perils of the sea. Subsequently, however, the shipowners accepted that, even if the loss had been contributed to in some way by negligence of the crew, such negligence could not, in all the circumstances of the case, be regarded as the proximate cause of the loss. The shipowners' case accordingly rested, and rested only, on loss by perils of the sea.
It is important to observe that this was not a case of a ship being lost with all her crew in circumstances when the immediate cause of the entry into her of sufficient water to make her sink is unexplained. On the contrary Bingham J. was able to make clear and positive findings with regard, firstly to the way in which water entered the ship, namely, through a large aperture in the shell plating on her port side in way of the engine room; and, secondly, with regard to the manner in which the water, having once entered the engine room, later flooded the two after holds as well, making it inevitable that the ship should sink. In the state of knowledge which existed it is not surprising to find that the shipowners were strenuously pressed, both at the pleading stage and during the trial before Bingham J., to specify the perils of the sea on what they relied as having been the proximate cause of creating the aperture in the ship's shell plating which led to her loss.
The shipowners relied in their pleadings, and sought to...
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