Stephen v Scottish Boatowners Mutual Insurance Association
|England & Wales
|Lord Keith of Kinkel,Lord Roskill,Lord Brandon of Oakbrook,Lord Griffiths,Lord Goff of Chieveley
|29 March 1989
|Judgment citation (vLex)
| UKHL J0302-4
|House of Lords
|29 March 1989
 UKHL J0302-4
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Goff of Chieveley
This appeal is concerned with a 75-foot motor fishing vessel, the Talisman, which sank at 2.45 a.m. on 31 May 1980 in calm seas 50 miles west of the Shetland Islands. The pursuer, owner and also skipper of the vessel, claimed against the defenders, who were insurers of it. The claim was rejected on various grounds, so the pursuer raised an action in the sheriff court at Banff against the defenders seeking declarator that the vessel was lost by a peril of the sea and that the defenders were bound to indemnify him for the loss and craving payment accordingly. On 10 November 1982 the case was remitted to the Court of Session.
By their defences the defenders denied that the vessel was lost through peril of the sea and further alleged that it was unseaworthy at the time of the loss and that the pursuer had not used all reasonable endeavours to save the vessel from loss. They founded upon rule 13 of their rules, to which the policy of insurance was expressly declared to be subject. Rule 13 provided, so far as material:
" Conduct of Policy Holder. — The insured shall take all reasonable care and precaution to see that the vessel is maintained and kept during the currency of the policy in a seaworthy condition. The Association shall not be liable for any claim for loss or damage when the insured making such claim has not used all reasonable endeavours to save his vessel from such loss or damage."
The case went to proof before Lord Mayfield, Ordinary. On 15 March 1985 he issued an interlocutor granting decree of absolvitor. In his opinion of the same date Lord Mayfield held that the Talisman was lost through peril of the sea and that she was not unseaworthy at the time of the sinking. However, he found in favour of the defenders on the issue whether or not the pursuer had used all reasonable endeavours to save the vessel from loss. The pursuer reclaimed. The defenders did not at the hearing of the reclaiming motion seek to reopen the issues of peril of the sea and unseaworthiness. On 18 March 1988 the Second Division of the Inner House (the Lord Justice-Clerk, Lord Ross, Lords Dunpark and Wylie) recalled the Lord Ordinary's interlocutor and granted decree of declarator as craved in the initial writ, and also for payment by the defenders to the pursuer of the sum of £274,860 with interest. The defenders now appeal to your Lordships' House.
The only issue in the appeal is whether or not on the evidence in the case the defenders succeeded in proving that the pursuer did not use all reasonable endeavours, within the meaning of rule 13, to save the Talisman from sinking. It is common ground that they did not have to prove that, had he used such endeavours, the vessel would in fact have been saved from sinking.
The Talisman sank because of a rapid ingress of sea water at a point below the water line. The cause of the ingress was unknown to the pursuer at the time and was not established at the proof, although the opinion of expert witnesses was that the most probable cause was a fracture of a pipe leading from one of the seacocks. The defenders' allegations of failure on the pursuer's part to use all reasonable endeavours to save the Talisman consisted in (1) an allegation that he ought to have closed the seacocks when he appreciated that sea water was entering the vessel, but failed to do so, and (2) that he ought to have sent out a Mayday call but failed to do so. It was common ground that the pursuer did not do either of these things. The question is whether he was thereby in breach of his obligation to use all reasonable endeavours to save the vessel.
The Talisman had two pumps, a Gilmec pump worked by the main engine and a Desmi pump worked by an auxiliary engine. Each was capable of drawing in water either from the sea via a seacock, or from the bilges. The Lord Ordinary's description of the seacocks is as follows:
"There were three seacocks on the portside below the water-line. One was for each pump and the other to the engine cooling system. There was a fourth seacock on the starboard side which was for an emergency fire fighting pump. There was a connecting pipe from the seacock to the valve chest for both pumps. The Desmi pipework was of galvanised steel and the Gilmec of two-inch copper piping. The piping was new. A valve chest was fitted comprising two valves. There was a suction pipe from each seacock to a valve which was the intake into the valve chest and pipes leading from the opposite end of the valve chest to each bilge. The valve chest could also be operated so that water could be brought to the deck by means of a hose. The pipes that led to the bilges were of the same material as from the seacocks. The ends of the pipes reaching the bilges were blocked and had a series of little holes at the bottom to act as a filter. There was also a filter at the intake end of the valve chest. When the bilge pumps were operated water was drawn up and discharged over the side through holes in the side of the boat. Suction was required to cause sea water to enter the seacocks and move up the pipes to the valve chest. If the seacocks were open the length of pipe up to the valve chest always contained sea water. The valves were operated by opening them sufficiently to provide sea suction. There were two valve chests and in order to pump the respective bilge valves were fully opened."
It is to be added that the piping between the Desmi pump seacock and the valve chest had a diameter of three inches.
The pursuer's understanding was that it was necessary for the operation of the bilge pumps that the seacocks had to be open and also the sea valves, at least to some extent. There was evidence that this understanding was shared by quite a number of other skippers of fishing vessels. The expert evidence was that it was in fact unnecessary. It is obvious that leaving open the seacock and also the sea valve had the effect that the bilge pumping capacity was reduced because the pump would be taking in sea water as well as bilge water.
The Lord Ordinary's account of the circumstances of the sinking, which is properly to be treated as containing his findings of primary fact, is as follows:
"On 30 May the Talisman was trawling in the Otter Bank area. Apart from the pursuer the crew comprised the mate David Walker, and three deck hands Raymond Craighead, William Donaldson and George Donaldson. The catch was hauled in late in the evening. The pursuer and Walker repaired damage to the net. Three deck hands dealt with the fish including washing the fish. That involved the use of the Desmi pump. The auxiliary engine was thus working in order to operate the pump. It also meant that the fire alarm was switched off while that process was in action because of the exhaust fumes referred to earlier. Thereafter at about 12.30 a.m. on 31 May the nets and gear were again utilised. The pursuer remained in the wheel house on watch. The others were below deck. Whilst he was in the wheel house Walker joined him to tell him that there was quite a quantity of water in the engine room bilge. Walker had been alerted by one of the crew. According to the pursuer Walker did not seem unduly worried. The pursuer then went to look and found more water than he expected to find. At that stage he stated that water was being thrown up at the fore end and after end of the engine by various drive belts and pulleys. There were foot plates either side of the engine. At maximum point the depth between the foot plates and the bottom of the boat was two feet. The pursuer stated that when he went down the water was just below the plates. The auxiliary engine had been started by Walker in order to operate the pump. That engine was labouring when the pursuer went down and he primed it. According to the pursuer a lot of water was being thrown up because of the action of the flywheel and the belt drives. There were two belts aft and about seven at the fore end of the engine. Steam was rising on the hot parts of machinery. The pursuer was not able to see any obvious ingress of water. He also lifted some of the plates to see if he could detect anything below. The pursuer stated he was faced with a choice as to whether to close the seacocks or leave the seacocks open and give the pumps an opportunity to get rid of the water. As stated earlier the pursuer was under the impression that in order to operate the pump it was necessary to keep the seacocks open. The pursuer stated in evidence that he then went up on deck to see that the pumps were discharging and according to him they were. Before he went on deck his impression was that the water was neither rising nor falling. The pursuer then informed the skipper of the Boy Graham, a nearby trawler, that he was taking in water and asked him to stand by. The call was made on V.H.F. The skipper of the Boy Graham was about to shoot his net when the pursuer asked him not to do so and to stand by. He then returned below and according to his evidence realised the seriousness of the situation and got the crew to run the gear, that is, detach the fishing gear from the vessel. He stated there was a lot more water in the engine room when he went down a second time. His recollection was that the water by that time was about knee level when he was standing on the foot plates. At that stage both engines and pumps were still working. The water was coming in faster than it was going out. He first thought that he would run for the shore. That was why he wanted to try and get the gear off. In fact an attempt was made to do that. It should have taken a matter of minutes. However the...
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