Voaden v Champion (Baltic Conveyor, Timbuktu)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lady Justice Hale,Lord Justice Schiemann |
| Judgment Date | 31 January 2002 |
| Neutral Citation | [2002] EWCA Civ 89 |
| Docket Number | Case No: A3/2000/3519/A-C |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 2002 |
[2002] EWCA Civ 89
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
ADMIRALTY COURT
(Mr Justice Colman)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lady Justice Hale and
Lord Justice Rix
Case No: A3/2000/3519/A-C
Belinda Bucknall QC and Charles Davies (instructed by Messrs Foot Anstey Sargent for the Claimant/Appellant)
Jervis Kay QC and Rachel Toney (instructed by Messrs Donne Mileham & Haddock for the Defendant/Respondent)
On 28 October 1996 Baltic Surveyor was lost at her moorings in a storm. She had been moored alongside a steel pontoon in the Hamoaze at Plymouth near the naval dockyard. Both Baltic Surveyor and the pontoon were moored fore and aft to two buoys which were themselves anchored by chains to two substantial concrete blocks lying on the sea bed, a so-called trot mooring. Baltic Surveyor was lost because another vessel, Timbuktu, which had been moored on the other side of the pontoon, but negligently so, sank and in doing so holed Baltic Surveyor with her mast. The pontoon was dragged down with Baltic Surveyor and also lost. The trot mooring was damaged. All three, that is to say Baltic Surveyor, the pontoon and the trot mooring belonged to Ms Pamela Voaden, the claimant and, in this court, the appellant. She lived within sight of the mooring. Her partner, Mr Watkiss, had risked his life during the storm in an unsuccessful attempt to save Timbuktu.
Liability for Ms Voaden's loss was in due course accepted by the defendant, here the respondent, who had been the owner of Timbuktu. A defence based on statutory limitation was tried and abandoned mid-trial. The outstanding issues of quantum came before Mr Justice Colman ( The Baltic Surveyor [2001] 1 Lloyd's Rep 739). He concluded that Ms Voaden was entitled to recover a total (plus interest) of £122,900, made up of the following items:
(1) The value of Baltic Surveyor: £82,000
(2) The loss of the pontoon: £16,000
(3) Reinstatement of the mooring: £24,000
(4) Pilotage: £ 900 No further issues arise on items (3) and (4) above: but items (1) and (2) are the subject of this appeal.
Ms Voaden submits that the judge was led into error as to item (1) because he was misinformed about the price and other circumstances of the sale of another yacht which he treated as the closest comparable for the purpose of valuing Baltic Surveyor. That other yacht was Bluebird. The judge believed that Bluebird had been sold in 1996 for £127,800. In fact, as will appear below, she sold in 1994 at a price of £142,000. Moreover, that price reflected her poor appearance and condition, about which the judge knew nothing. Ms Voaden submits that the judge should have found that Baltic Surveyor's value was at least the price of £150,000 for which she was on offer at the time of her loss, if not more.
As to item (2), Ms Voaden submits that the judge erred in not valuing the pontoon at its replacement cost of £60,000. Instead he discounted that figure to £16,000 on the basis that a replacement pontoon would last for 30 years whereas the lost pontoon only had a remaining life in it of 8 years: thus 8/30 of £60,000 = £16,000. Ms Voaden submits that no "new for old" deduction should have been made against the replacement cost, since only full replacement would have afforded her a complete indemnity, ie given her restitutio in integrum.
In addition Ms Voaden appeals a third issue, to the effect that the value of Baltic Surveyor plus interest from the time of loss does not compensate her for her loss of the extensive personal (ie private) use she had made of that vessel. She therefore seeks an additional sum to reflect that loss.
There are therefore three issues on this appeal. (1) Did the judge err in his assessment of the value of Baltic Surveyor? (2) Did he err in not giving replacement value for the lost pontoon? (3) Should he have awarded an additional sum in respect of loss of personal use?
The judge refused permission to appeal, but on application for permission being made to the court of appeal, Mance LJ granted it in relation to issues (2) and (3). As to issue (1), he adjourned the application to the full court since it drew in its trail an application to admit new evidence regarding the true facts of Bluebird and its sale. That application was opposed. This court decided to hear the new evidence and to admit it, and to grant permission to appeal (and if necessary an extension of time) in respect of this issue also. Its reasons for doing so have been reserved for this judgment.
The first issue: the value of Baltic Surveyor
The judge described the history of Baltic Surveyor in the following terms, which I am grateful to be able to set out:
"12. BS was an unusual boat. It was 29.5 metres long and had been built in 1943–4 in the Kroger Yard at Hamburg as a gunboat for the German Navy. The hull was designed for high speeds and torpedo warfare…
"13. The vessel had been acquired by Mr Watkiss, the partner of Ms Voaden, in about February/March 1976…Mr Watkiss then intended that the vessel should be converted, refurbished and fitted out for high class chartering. In the late 1970s and early 1980s, Mr Watkiss, therefore,…further converted BS. This involved replacing the entire superstructure. All the internal bulkheads were replaced with steel watertight bulkheads with watertight doors. The existing sole was replaced so as to give greater headroom in the accommodation which was itself reconstructed to provide four double cabins and those bathrooms furnished with high quality woodwork. Central heating and air-conditioning was installed. A new gallery was fitted. The two 300 hp engines were rebuilt and many parts replaced. The vessel was also rewired and various fire safety devices and anti-pollution equipment was installed. Modern navigation equipment was installed.
"14. The conversion of the vessel to a high-class chartering vehicle was interrupted when Mr Watkiss's companies collapsed and during this period maintenance was inadequate. Mr Watkiss re-acquired BS from the bank in 1987 and then set about making good the lapses in maintenance while in the bank's hands and preparing her for chartering out. Thereafter the work was completed by December, 1987.
"15. In the course of that year Mr Watkiss had met Ms Voaden and a close relationship began…
"16. The evidence strongly suggests that the vessel was well maintained, both before it was taken over by the bank and after Mr Watkiss re-acquired it…
"22. In 1996, according to the evidence of Ms Voaden and Mr Watkiss, a substantial programme of refurbishment was completed. This included anti-fouling the hull, replacement of the sacrificial anodes, repainting of the boot topping and cove line, application to the hull [above] the cove line of very hard wearing paint acquired from the motor industry at substantial expense, repainting of the main deck, superstructure and mast and the interior paint work, stripping and restoring of varnished surfaces and brass-work. The interior furnishings were also cleaned or replaced. It was intended that the vessel would be in good condition for chartering when the summer began…"
In the meantime, however, Ms Voaden and Mr Watkiss had determined to put the vessel on the market. This was first done in April 1991, when she was priced at £325,000. Following an inspection out of the water at that time, the surveyor noted in his report that the vessel had been converted to a high professional standard and that she had been well and regularly maintained. Nevertheless the vessel did not find a buyer. The recession was then at its depth. In July 1991 the price was reduced to £250,000, and in June 1992 to £195,000, but there were still no buyers.
At this time Mr Watkiss's health took a turn for the worse. Ms Voaden discussed the prospect of selling the vessel quickly, in case Mr Watkiss should die, for £165,000. Then in April 1993 the brokers, Berthon International ("Berthon"), were instructed to reduce the price to £150,000. Details were circulated at regular intervals and the vessel was advertised a number of times between September 1994 and April 1996, but without success, even though the market was recovering during this last period. The vessel remained on Berthon's books for sale at £150,000 up to her loss in October 1996. Throughout all this time only once had a prospective purchaser inspected the vessel. Otherwise there was no buyer interest and no offers. Even so, Ms Voaden and Mr Watkiss gave evidence that they would not have agreed to sell her for less than £250,000, such was their love of the vessel.
The judge heard valuation evidence from two experts, Mr Robin Berwick, who was called on behalf of Ms Voaden, and Mr Richard Ayers, who was called on behalf of the defendant. They agreed certain matters, as follows. First, that the BS was "of a specialist nature with a limited market potential". Next, that the conversion work initially undertaken by Mr Watkiss had been carried out to a reasonably high standard. Thirdly, that elderly timber yachts are always very difficult to sell, partly because of high maintenance costs, that historic interest did not lead to an increase of value although it could attract initial attention, and that it was impossible to predict when a buyer might be found. Market values had remained unchanged from 1996 to time of trial.
The experts also agreed as to the process for valuation, namely that a sound market value should be arrived at as between a willing seller and a willing buyer on the basis that the vessel was in...
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