England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMIRALTY COURT
Admiralty Action in rem against
The Ship "FEDRA"

		The Hon Mr Justice Aikens
		12th December 2001

Mr Justice Aikens:

BACKGROUND TO THE CASE

1. This case arises out of a collision that took place at about 0750 hours local time on 21 May 1998 in the Bay of Gibraltar between the "Fedra" and the "Seafarer 1". The "Fedra" was proceeding into Algeciras anchorage and was laden with a cargo of cement in bulk, stowed in six of her seven, holds. Hold No 3 was the only empty hold. "Seafarer 1" was outward bound from the anchorage. In the collision the bow of the "Fedra" struck the starboard side of the "Seafarer 1" at an angle of between 60° to 70° leading aft on the "Seafarer 1". External damage was done to the "Fedra" from frame 231 (the foremost frame) to frame 222 on the port side and to frame 214 on the starboard side. There was some distortion to longitudinals inside the "Fedra's" forepeak back to frame 208, but no damage aft of the collision bulkhead at frame 207 was observed immediately after the collision.
2. As a result of this damage the "Fedra's"^[1] forepeak was breached and flooded. That led to an increase in her forward draft, but, after inspections, it was believed that there was no ingress of water to other spaces in the vessel. However on 30 May 1998 much water was discovered in the No 4 and also the No 3 hold. Water had entered through a hold in the bottom place of a structure called a "discharge box" or "hat box", located high up at the aft end of the No 4 hold on the starboard side between frames 115 and 114. That position was about 79 metres aft of the aftermost external bow damage suffered by the "Fedra" in the collision.
3. This discharge box was^[2] an eight sided steel structure situated adjacent to the ship's side and immediately below a wing ballast tank in way of the No 3 and 4 holds of the vessel.^[3] There was an opening in the ship's shell plating in way of the discharge box. That opening was about 1 metre below the vessel's summer load line, so was immersed when the vessel was loaded, but was above the load line when the vessel was in ballast. When the ship was in ballast the wing ballast tank could be emptied by opening a valve. Ballast water then flowed by gravity from the wing ballast tank into the discharge box and then out through the opening in the vessel's shell plating. There was no means of isolating the discharge box if it leaked as a result of some failure in its structure. In that case water would flow into the No 4 hold from either the wing ballast tank (if ballast water was being discharged), or from the sea if the ship was laden. Therefore to prevent any leakage from the discharge box into the No 4 hold it was vital that the fore, aft and bottom plates of the discharge box remained watertight.
4. It is agreed between the parties that the cause of the ingress of water into the No 4 hold was a failure of the bottom plate of the discharge box. It is also agreed that the cause of this failure was severe corrosion in the steel of the bottom plate. Water flowed into the No 4 hold, which was full of cement in bulk. It is agreed that water then flowed from the No 4 hold into the No 3 hold (which is forward of the No 4 hold) through corrosion holes in the transverse bulkhead between the two holds. It is further agreed that as a result of the ingress of water into the two holds and the damage to the cargo in the No 4 hold, the vessel became a Constructive Total Loss.
5. A collision action was begun in which each vessel accused the other of being negligent. The issue of liability of the collision has now been settled with each ship accepting 50% of the blame. It is accepted that all the damage to the vessel (and the cargo) that was subsequent to and arose from the ingress of water into the No 4 hold can be treated as having one cause. The critical issue between the parties has been whether the damage to the vessel that resulted from the ingress of water to the No 4 hold was caused by the collision or some other event.
6. Accordingly on 12 May 2000 Mr Justice David Steel ordered the trial of a Preliminary Issue, which was worded as follows:

"Whether and to what extend the alleged loss and damage to the No 4 Hold of the "Fedra" and to the cargo carried therein was caused by the collision between the "Seafarer 1" and the "Fedra".^[4]

Subsequently Mr Justice David Steel gave direction for the determination of this issue.

7. The matter was tried before me between 2 and 9 October 2001. No oral evidence of fact was called. However, the Defendants did rely on witness statements of several crew members of the Vessel and a Technical Director of the Vessel's managers.^[5] I heard oral evidence only from experts. These were, first: Mr John Riding of Marine and Risks Consultants Limited, a marine surveyor, who was called by the Defendants. Secondly: Dr J Keith Ward of Bomel Limited, a metallurgist, who was also called by the Defendants. Thirdly: Dr Massimo Canepa of Studio Navale Canepa & Co, a marine surveyor, who was called by the Claimants. Lastly: Dr Tim Baker, a metallurgist, who was also called by the Claimants. Each witness was cross examined at some length. Some issues remained to be dealt with at the conclusion of oral submissions. Therefore the parties subsequently put in further submission in writing. I reserved judgment.

DETAILS OF THE "FEDRA", HER CARGO AND THE VOYAGE TO ALGECIRAS

8. The vessel was built in 1977. She was of conventional bulker construction with wing ballast tanks. The ballast tanks (port and starboard) at holds Nos 3 and 4 were common to those holds. The vessel was built according to Lloyd's Register Rules and her scantlings should have been 12.5mm. There may be some dispute as to the original steel thickness of the plate of the discharge box, but I do not believe that this matters for present purposes.
9. In 1998 the vessel was classed with "Registro Italian Navale" ("RINA"). She had been dry docked and subjected to a Special Survey at Bijela, Yugoslavia, in April and early May 1998. There she was inspected by a Class Surveyor from RINA. Upon leaving Bijela the vessel was in Class with no outstanding recommendations. At the outset of the trial there was some dispute as to whether the Class Surveyor should have inspected the discharge boxes of the vessel's wing ballast tanks.^[6] However it was agreed that the Class surveyor had not in fact inspected the discharge box in way of No 4 hold and wing ballast tanks. As I have already stated, it was agreed at the trial that at the time of the Special Survey and thereafter, the bottom plate of that discharge box was very badly corroded. The nature and extent of this corrosion was in issue and I shall have to return to it later in this judgment.
10. After the Special Survey the vessel sailed to Mylaki in Greece, where she arrived on 6 May 1998. A cargo of cement in bulk, totalling 37,162 tonnes, was loaded between 11 and 15 May 1998. All holds were loaded apart from No 3. The vessel sailed for her destination, the Mississippi River, at 0930 hours on 15 May 1998. She was due to call at Algeciras for bunkers.

THE HISTORY OF THE DISCOVERY OF WATER IN NOS 3 AND 4 HOLD OF THE "FEDRA" AFTER THE COLLISION

11. It is agreed that, as a result of the collision, water entered the forepeak space. As a result the Load Line of the vessel was submerged. However the forward draft of the vessel appeared to be increasing after the 21 May 1998. Although inspections were undertaken by surveyors and the owners' superintendent on 22 and 25 May 1998, the cause for this increase in draft was not ascertained. It was only on 30 May that the Chief Engineer discovered the water ingress into the No 4 hold via the failed bottom plate of the discharge box. He immediately plugged the hold with a wooden "fid" which he had wrapped in cloth and then hammered into the hold in the bottom plate. As a result of his actions the steel in the area where water was leaking through the bottom plate of the discharge box was disturbed or destroyed. So it was impossible for the corrosion experts to say precisely what the state of the steel had been in that exact area.

THE CASES OF THE PARTIES: AGREED POINTS

12. The cases of both parties underwent some modification during the course of the trial. However there was agreement on the following important points of fact and expert opinion:

(1) that the discharge port in the vessel's side in way of the No 4 hold starboard discharge box was always below the water line at all relevant times, ie during the voyage from Mylaki, at the time of the collision and afterwards. Therefore, if at any of those times a hole in the bottom plate of the discharge box was created, then sea water would be bound to enter the No 4 hold via the discharge box.

(2) that one water had got into the No 4 hold it would lead to damage to the cargo in that hold and it would also inevitably lead to water getting into the No 3 hold via existing corrosion holes in the bulkhead between the two holds.

(3) that the bottom plate of the discharge box was severely wasted by corrosion. In the area where the hold eventually appeared the plate thickness was less than 1mm.^[7]

(4) that as a consequence of the collision the Vessel would have experienced a shock wave which would have been transmitted longitudinally through the hull structure. The shock wave would have induced in the side plating of the hull an initial nominal compressive stress of about 31 Newtons per millimetre squared (N/mm²) and a subsequent reflected tensile stress of about 18 N/mm². The nominal stress induced in the side plating of the hull would decay across the width of the bottom plate but the stress in the bottom plate would be amplified by stress concentrations due to irregular geometry such as pitting of the plate and changes in thickness due to corrosion.^[8]

(5) that the wastage of the bottom plate of the discharge box and/or pre-existing perforations in the bottom plate would have given rise to regions of stress concentration in the bottom plate. However there was disagreement between Dr Ward and Dr Baker as to the magnitude of the Stress Concentration Factor ("SCF") that would have been encountered.^[9]

(6) that if the section of the bottom plate of the discharge box that was subsequently lost (because of the hole that was plugged by the "fid") had, in fact, been perforated by corrosion before the collision, but a prior ingress of water into the No 4 hold had been prevented by an overlying carapace of rust scale, then the passage of the shock wave could have caused disruption of the rust scale and thereby precipitated water ingress.^[10]

THE CASE OF THE DEFENDANTS: THE OWNERS OF THE "FEDRA"

13. The Defendants accepted that they had the burden of proving that the loss and damage to the No 4 hold and the cargo in it was caused by the negligence of the parties that resulted in the collision. They submitted at the end of the trial that on balance of the evidence the ingress of waster into the No 4 hold was caused by the collision – as a matter of fact and of law. They put their case as follows:

(1) First, they accept that the condition of the bottom plate of the discharge box at the time of the collision was very poor. The Defendants accept that generally the steel in the area of the hole where water came through the bottom plate must have been less than 1 mm thick. That was the agreed thickness^[11] of the steel immediately adjacent to the larger hold that was created when the Chief Engineer hammered in the "fid" on 30 May 19098. It was also agreed between the corrosion experts that the missing piece of bottom plate was in an advanced state of wastage and could have contained closely spaced perforations.^[12] The Defendants submit that it is irrelevant for the present whether the bottom plate consisted of intact steel or perforated steel. They invite the Court to proceed on their "worst case" basis, ie. That the bottom plate was perforated, but the perforations were covered with a carapace of adherent rust scale which prevented any seepage of water into the No 4 hold before the collision.

(2) Next, they submit that there was no evidence that the carapace of rust scale had been breached before the collision, resulting in seepage of seawater into the No 4 hold.

(3) The mechanism of the failure of the corroded bottom plate was, in fact, that which the two metallurgical experts had agreed was a possible mechanism. Therefore the Court does not need to decide between the metallurgical experts on issues concerning: (i) the SCF in the bottom plate of the discharge box; (ii) whether the SCF, combined with the compressive stress of the shock wave caused by the collision would be sufficient to create a force on the thinned steel of the bottom plate that was greater than its yield strength, thus causing the thinned plate to rupture.^[13]

(4) They submit that it is possible, using an analysis of the vessel's drafts immediately before and after the collision, then subsequently until 30 May 1998, to work out the weight of floodwater in the vessel at various times. As it is agreed that the only spaces that flooded were the forepeak and Nos 4 and 3 holds, it is therefore possible to work out the weight of water in those spaces also. This exercise had been done by Mr Riding, and shows a trend in the figures over time which demonstrate an ingress of water at a flow rate of about 400 tons per day. This figure is consistent with the likely size of the hole in the bottom plate.^[14] The drafts and the calculations based on them indicate that water entered the No 4 hold from the time of the collision but not earlier. That is consistent with the lack of evidence of any prior entry as a result of a breach of the discharge box bottom plate.

(5) Therefore the ingress of water into the No 4 hold was the direct result of and was caused by the collision.

THE CASE OF THE CLAIMANTS: THE OWNERS OF THE "SEAFARER 1"

14. The Claimants' case is rather more elaborate. In summary it is:

(1) It is for the Defendants to prove that the ingress of water into the No 4 hold was caused by the collision. Insofar as the Claimants advance a positive case, they submit that the balance of the evidence suggested that the most likely "possibility"^[15] was "pre-collision ingress" of water into the No 4 hold.

(2) It is noted that he Defendants have accepted that the Court should proceed on the basis that the bottom plate had perforations before the collision, but the carapace of adherent rust scale was only disrupted by the passage of the shock wave at the collision, thus triggering ingress of water into the No 4 hold. Although the experts agreed that mechanism was possible, the Defendants have no direct proof that this is what occurred.

(3) Therefore the only way that the Defendants can prove their case on a balance of probabilities is by satisfying the Court by indirect evidence that the ingress of water started only after the collision and as a result of it. The Defendants' principle means of showing this is the evidence of the drafts of the vessel at various times.

(4) However, on a proper analysis of the observed draft readings, as opposed to the analysis of photographs or extrapolations done by Mr Riding, the balance of the evidence and the resulting calculations point to the ingress of water into No 4 hold starting before the collision.

(5) Even if the Court is satisfied that ingress started immediately after the collision and was triggered by it, once the Defendants accept that the likely failure mechanism of the heavily corroded bottom plate was by disturbance of rust scale, then the collision could not be the cause of the ingress, as a matter of law. The legal cause of the ingress of water was the pre – existing unseaworthiness of the Vessel, in particular the severely corroded condition of the bottom plate of the discharge box.^[16]

THE ISSUES FOR DECISION

15. The Defendants have invited the Court to proceed on the basis that the wasted bottom plate of the discharge box was perforated and that the failure mechanism of the perforated bottom plate was as set out at paragraph 13(3) above. I am prepared to do so. Therefore the first main issue, which is one of fact, is whether the Defendants can prove, on a balance of probabilities, that this failure occurred about the time of the collision and that it led to the ingress of water into the No 4 hold. If they succeed on that issue, then the other main issue, which is one of fact and law, is whether the negligence that resulted in the collision was, legally speaking, a cause^[17] of the ingress of water into the No 4 hold and any damage to the No 4 hold and its cargo.

ISSUE ONE: HAVE THE DEFENDANTS PROVED, ON A BALANCE OF PROBABILITIES, THAT THE INGRESS OF WATER INTO THE NO 4 HOLD STARTED AT OR SHORTLY BEFORE OR AFTER THE TIME OF THE COLLISION?

16. The Defendants obviously have no direct evidence to show that the ingress of water into No 4 hold only started after the collision. But they say that this fact can be inferred from several strands of evidence. The principal evidence they rely on is the conclusion of their marine surveyor, Mr Riding. He says that the drafts of the vessel as observed or calculated for various times after her arrival at Algeciras until 30 May 1998 show three things. First, the weight of water that was in the vessel at any particular time. Secondly, that the drafts and weight of water in the vessel as calculated are consistent with the rates of flow that could be obtained through a hold of diameter of about 32.5 mm. Thirdly, that the weight of water in the vessel and the rate of flow of water through a hold of that size with a head of water above it of just over 1 metre are all consistent with no ingress of water in the No 4 hold before the collision.
17. I found Mr Riding to be candid witness when giving his oral evidence. However there are some unsatisfactory features in the figures that he has used for his flooding calculations^[18] on which the Defendants rely, as will be apparent from the analysis that I do below. The calculations of Mr Riding were challenged wholesale by the Claimants. Their expert, Dr Canepa, also gave satisfactory evidence, although he seemed to be dogmatic occasionally. However, ultimately, the question is whether I can rely on the figures for drafts of the vessel at any particular time that Mr Riding or Dr Canepa employ. This involves looking at the draft figures for various times that the experts have used for their calculations.
18. Departure Drafts at Mylaki: The first draft the experts considered is the departure draft at Mylaki. It is now agreed that, based on the draft survey of 15 May 1998^[19] the drafts were: 10.63 metres forward; 11.11 metres aft and 10.87 metres mean. The drafts corrected for salinity are agreed as: 10.66 metres forward; 11.14 metres aft and 10.90 metres mean.
19. The draft survey of 15 May 1998 also states that the vessel had 240.5 tonnes of ballast on board. There was no evidence or any plausible reason to contradict that statement. Mr Riding suggested that this figure might represent cargo. A draft survey, carried out to verify the amount of cargo on board, is unlikely to attribute an extra figure to ballast.^[20] Nor do I find Mr Riding's other suggestion, that the figure might represent additional fuel, convincing.^[21] I find that she probably had that ballast on board when the draft survey was done. The experts agree that the vessel would be most unlikely to leave the load port with ballast on board.^[22] Therefore I find that the drafts as set out above must be those that were taken before the vessel deballasted and proceeded on her voyage from Mylaki to Algeciras.
20. Arrival Draft at Algeciras: The next relevant draft is the arrival draft at Algeciras, before the collision occurred. Mr Riding accepted that this draft was important for his calculations because they were the point from which to more forward.^[23] There were no observed pre – collision arrival drafts and so they have to be calculated from the departure drafts. If the ballast was discharged as I have found was probable then, on the assumptions that the vessel would have consumed 261 tonnes of fuel on the voyage^[24] and that there had been no ingress of water into No 4 hold, it is not disputed that the vessel's pre – collision arrival drafts would b: 10.55 metres forward; 11.02 metres aft and 10.79 metres mean. The Master's evidence was that he calculated the pre – collision arrival drafts as being 10.60 metres forward. 10.95 metres aft and 10.775 metres mean.^[25] However I note that this was a calculation made by the master after the collision^[26] rather than an observation before the collision.
21. In cross – examination Mr Riding accepted that he had considered the Master's pre – collision draft calculation, assuming that the 240 tonnes of ballast had been discharged before the voyage and that about 260 tonnes of fuel had been used. He also accepted that he had rejected the Master's calculations because they tended to indicate that there had been some ingress of water into the vessel before the collision.^[27] Accordingly he reworked the figures assuming that the 240 tonnes of ballast was in fact cargo and/or further fuel.^[28] The figures that Mr Riding produced in his Flooding Table are: 10.73 metres forward, 10.99 metres aft and 10.84 metres mean.
22. I am not satisfied that I can take Mr Riding's pre-collision calculated arrival drafts as being accurate. Mr Riding accepted Dr Canepa's figures that he vessel would have consumed about 260 tonnes of fuel for the six day voyage to Algeciras.^[29] If the 240 tonnes of ballast had been removed, then I must conclude that the likely pre-collision arrival drafts were: 10.55 metres forward; 11.02 metres aft and 10.79 metres mean. I accept that if the 240 tonnes represented fuel or cargo and so remained on board, then the draft figures would be: 10.60 metres forward, 11.7 at and 10.84 metres mean.^[30]
23. Post – collision drafts: It is agreed that the weight of water in the breached forepeak space, immediately after the collision, should be taken as 1,100 tonnes. It is also agreed that, assuming the vessel had discharged the 240 odd tonnes of ballast before the sea voyage from Mylaki, and if there were no pre – collision ingress of water into No 4 hold, then her drafts (with the forepeak flooded) would have been: 11.60 metres forward; 10.44 metres aft; 11.02 metres mean.^[31]
24. However, the Claimants submit that there is evidence that the actual post – collision drafts were significantly different to these calculated draft figures. They say that the Master took the vessel's actual post – collision draft on 21 May 1998 and that these were 12.00 metres forward; 10.35 metres aft and 11.22 meters mean midships. This submission is based on an entry in Mr Riding's notebook which is dated 23 May 1998. In cross examination Mr Riding explained that those figures were given to him by the Master on the evening of 22 May when Mr Riding arrived on board the vessel at about 17.30 hours. Mr Riding said that he only transcribed them from a pad into his notebook the following day.^[32] The note in Mr Riding's notebook for 23 May states: "After collision: F 12m (level of water) A 10.35m Mean 11.22 mean midships". I note that in Schedule D to his first report, Mr Riding describes those figures as: "Post collision figures as advised by master on attendance."^[33]
25. The Defendants' case is that when Mr Riding first went on board the vessel at about 17.30 hours on 22 May, that is some 32.5 hours after the collision, the drafts then were: 11.97 metres forward; 10.47 metres aft and 11.22metres mean. In his Flooding Table^[34] Mr Riding has used these figures for the drafts at that time. In evidence Mr Riding appeared at first to say that these figures represented the drafts as observed by the Master at the time that he (Mr Riding) first went on board on 22 May, ie. at 1730 hours.^[35] However, after further questioning, Mr Riding was less sure and appeared to accept the suggestion that the figures represented the Master's figures for the post – collision drafts.^[36] The Master was not called to give evidence.^[37]
26. On the evidence as a whole on this point, I am satisfied that those figures were given by the Master to Mr Riding when he went on board the vessel on 22 May 1998, but they represented the Master's reading of the immediate post – collision drafts of the vessel.
27. However the Defendants rely on further evidence to establish that the actual drafts of the vessel at 17.30 hours on 22 May 1998, ie. some 32.5 hours after the collision, were 11.97 metres forward; 10.47 metres aft and 11.22 metres mean. This evidence is:

(1) Photographic evidence of drafts.^[38] But such evidence of drafts is notoriously undependable. It is clear that there was a swell when this particular photograph was taken. I regard this as unreliable.

(2) A figure for the mean draft after the collision, given as 11.03 metres in a report prepared by Mr Felix Patino, a marine surveyor appointed by the Claimants.^[39] Mr Patino's report was served by the Claimants under a Civil Evidence Act Notice. The Defendants say that the Claimants cannot now disavow that evidence.^[40] But I note that the report states that the figure of 11.03 is a calculated one that "coincided approximately with that observed during our initial inspection in the same day as the collision".^[41] So there is no factual evidence from Mr Patino that the mean draft was actually observed at 11.03 metres. That figure constitutes his expert opinion, no more. It is clear from the report that Mr Patino was using his approximate observation to add broad confirmation to his calculated draft, rather than the other way round. The Filiatra Legacy does not say that a Court is bound to accept an expert's opinion as put forward by one side. I am not bound to accept this figure as being an observed figure and I do not do so.

(3) Lastly the Defendants rely on Dr Canepa's photograph taken on 22 May.^[42] This suffers from the same problem as other photographic evidence of drafts. I cannot regard it, on its own, as a reliable foundation for a figure.

28. If the vessel did indeed have an immediate post – collision mean draft of 11.22 metres, then that is about 20 cm^[43] greater than it should have been if only the forepeak space had been flooded with about 1,100 tonnes of water. That is equivalent, roughly, to a further 940 tonnes being on board the vessel immediately post collision. That would mean that there was a considerable quantity of water in the No 4 hold at the time of collision. Even if the vessel had an extra 240 tonnes on board because, as Mr Riding believed, that figure was actually fuel or cargo, then her draft was still 15 cm greater than it should have been if only the forepeak space had been flooded with about 1,100 tonnes immediately after the collision. That is equivalent to a further 700 tonnes being on board at collision. Both the figures of 940 tonnes and 700 tonnes are quite inconsistent with the Defendants' case that there was no significant flooding into No 4 hold before the collision took place. Indeed Mr Riding accepted in cross-examination that on those figures there must have been a substantial amount of water on board the vessel before the collision.^[44]
29. Drafts on 22 May 1998: Mr Riding gives draft figures in his Flooding Table,^[45] as 11.97 metres forward; 10.47 metres aft and 11.22 metres mean. If they were meant to represent actual drafts (given by the Master) at the time when Mr Riding went on board at 17.30 hours on 22 May, then I do not accept that those figures actually represent the Master's reading at about that time, for the reasons I have set out above. In my view those figures are likely to represent the immediate post – collision drafts of the vessel as recorded by the Master, then given to Mr Riding on his arrival on board the following day.
30. Drafts on 23 May 1998: For this day the two sides arrive at almost exactly the same figures. Mr Riding used computer calculations to produce his figure of a mean draft of 11.29 metres mean for 12.30 hours on 23 May.^[46] This calculated figure compares with that of Dr Canepa, which he gives as 11.28 metres.^[47] Dr Canepa said that this figure was calculated using a forward draft measured from a photograph and an aft draft observed by him at the time.^[48] This difference is insignificant. But if it assumed that the 240 tonnes "ballast" remained on board at Algeciras (because it was cargo or fuel as Mr Riding suggests) then it is agreed by the experts that the mean draft of the vessel immediately after the collision ought to have been 11.07 metres. If the vessel's mean draft on 23 May was, in fact, 11.29 metres, then the difference is about 22 cm. That difference in draft is equivalent to a weight of water of just over 980 tonnes. If water had only entered the vessel in the 51 ½ hour period after the collision, that would give a daily flow rate that is significantly greater than that suggested in Mr Riding's Flooding Table. Moreover, to enable ingress of about 980 tonnes in 51 ½ hours, then the diameter of the hole in the bottom plate would have to be considerably greater than the likely size of the hole or the figure of 32.50 mm suggested by Mr Riding. This is because a hole of a diameter of 32.5 mm that was regular would not have permitted a daily flow of more than about 208 tonnes of water.^[49] So in my view the 23 May draft figures are not readily consistent with the Defendants' thesis that there was no ingress of water prior to the collision.
31. Drafts on 25 May 1998: In his Flooding Table Mr Riding has used drafts of 12.65 metres forward, 10.33 metres aft and 11.49 metres means. Mr Riding stated^[50] that on 25 May he was given figures for the vessel's draft by the Master.^[51] He decided, however, that he could not rely on them.^[52] Instead Mr Riding used figures derived from photographs taken on 25 May.^[53] The figures used by Mr Riding in his Flooding Table compare with estimates of drafts noted by Dr Canepa and Mr Patino from a boat during an inspection around the vessel on 25 May.^[54] Dr Canepa's figures are: 12.80 metres forward, 10.40 metres aft and 11.60 metres mean. But the Claimants dismiss those figures as inconsistent with others.^[55] My conclusion is that there must be doubt about Mr Riding's figures, as they are based only on two photographs, which Mr Riding accepted in cross examination were not particularly reliable.^[56] Dr Canepa also appeared to have doubts about his own figures, because in his report he emphasised that the forward draft reading was an estimated one only, because the draft marks were not visible at the bow.^[57] Therefore I am not satisfied that any of the figures for 25 May can be treated as reliable.
32. Drafts on 26 and 28 May 1998: Mr Riding accepted that the primary source for his drafts for the 26 May was a photograph.^[58] That is bound to suffer from inherent unreliability. Mr Riding accepted that his draft figures for 28 May were generated by his computer model and not taken from observations.^[59] They were therefore dependent on figures that Mr Riding had used for previous days. They provide no independent verification of the rate of flow or the size of the hole in the bottom plate of the discharge box.
33. Drafts on 30 May 1990: Mr Riding has used drafts of 13.71 metres forward, 10.25 metres aft and 11.98 metres mean in his Flooding Table. Mr Riding appeared to accept in answer to a question from me that these figures were extrapolatios.^[60] Mr Riding's mean figure contrasts with the mean draft figure that the Master says that he took on the morning of 30 May, which was 11.65 metres.^[61] Mr Riding accepted that he did not use the Master's mean draft figure.^[62] The Defendants submitted that Mr Riding was entitled to use another of the Master's observations, which he also reported to Mr Riding.^[63] This was that there were 5 metres of water in the No 3 hold. As the Master gave no evidence, I have no means of deciding whether the mean draft figure of the depth of water in No 3 hold on 30 May is the more reliable figure. Therefore I cannot be satisfied that the figures that Mr Riding uses for 30 May are dependable, as they are (at best) based on the assumption that the Master's figure for the depth of water in the No 3 hold is correct.^[64]
34. Flooding rates and the size of the hole in the bottom plate of the discharge box: Apart from the draft figures themselves, there is a further factor that I should consider. That is the size of the hole which the Defendants' expert Mr Riding says was produced as a result of the failure of the bottom plate. The Defendants' case is that Mr Riding's flooding calculations are consistent with a hole that was about 32.5mm in diameter. The Claimants submit that the suggestion of a diameter of 32.5mm is not consistent with the factual evidence. Moreover they submit that a hold of a diameter much greater than 32.5mm would be needed to produce the flooding rates that Mr Riding calculates in his Flooding Table. Accordingly, the Claimants submit that the Defendants' flooding calculation and any conclusions based on them must be rejected.
35. Mr Riding measured the diameter of the hole, after the "fid" had been fitted, as "close to 55mm".^[65] Mr Riding agreed in cross examination that before the "fid" was fitted, the diameter would have been "significantly smaller".^[66] The Chief Engineer, who fitted the "fid", though the hole was about 40mm in diameter.^[67] Mr Riding noted in his notebook on 18 June 1998 that the Chief Officer advised that the hole was 20mm diameter.^[68] The hole was clearly not a perfect circle. Even if its maximum width was 40mm, it was not a circle of diameter 40mm and the hole must have had rough edges.
36. It was accepted by Mr Riding that a coefficient of friction had to be applied to calculate accurately the flow rates of water through the hole.^[69] Mr Riding did not apply any coefficient of friction when calculating his flow rates and the diameter of hole. Mr Riding accepted that those used by Dr Canepa were fair.^[70] I am satisfied that if a coefficient of friction is used to calculate flow rates through the hole, then a hole of about 45mm diameter would be needed to produce a flow rate of about 400 tonnes per day, which is the average rate that Mr Riding deduces from his flooding calculations.^[71]
37. There is no evidence to corroborate a hole size equivalent to a diameter of 45mm during the flooding period 21 to 30 May 1998. The flow rates calculated by Mr Riding cannot in practice be achieved with a hole in the bottom plate which has a diameter of significantly less than 40 mm. Conversely, if the hole is taken as being 32.5mm in diameter (as Mr Riding suggests), then the flow rates would be lower than those that result from Mr Riding's flooding calculations.
38. Conclusions on the timing of the flooding using the evidence as to drafts: The Defendants submit that it is important to look at the overall trends of the draft figures over a period, rather than concentrating too much on particular drafts at individual times. I agree that it would be wrong to attach too much attention to one particular figure. But, if I adopt the Defendants' approach, the question is whether I am satisfied that, on a balance of probabilities, the draft figures put forward by Mr Riding are sufficiently reliable to make it safe to conclude that: (i) the rate of ingress of water was, overall, about 400 tonnes per day between 21 and 30 May; and (ii) therefore the ingress only began just before, at or just after the collision.
39. Looking at the flooding calculations of Mr Riding overall, I am not satisfied that I conclude that, on a balance of probabilities, they broadly represent what happened or even the trend of what happened from the time just before the collision to 30 May 1998. In my view the analysis I have attempted to conduct demonstrates that the Defendants' figures are not sufficiently reliable on their own, to prove, on a balance of probabilities that the ingress of water started at or shortly before or after the collision.

OTHER FACTORS ON WHICH THE DEFENDANTS RELY

40. The Defendants rely on other factors to demonstrate that, on a balance of probabilities, there was no ingress of water into the No 4 hold before the collision.
41. First the Defendants rely on Dr Canepa's acceptance that there was no direct evidence to show that there had been any ingress of water prior to the collision.^[72] But this is unsurprising. No one would be expecting that there should have been such an occurrence. This lack of evidence does not prove that the ingress was likely to have taken place after the collision.
42. Secondly, the Defendants relied on the fact that if there had been any significant ingress of water prior to the collision, this would have resulted in an increase in draft which must have been noticed by someone before the collision. The Defendants relied on the agreement of the corrosion experts that once the failure of the bottom plate had occurred, the opening would stabilise at its maximum size within a short time of the initial burst.^[73] Therefore, if the failure had occurred significantly before the vessel's arrival at Algeciras, it would be likely to have resulted in a large quantity of water getting into the No 4 Hold prior to arrival.
43. It is the case that no one reported a significant increase in draft during the voyage from Mylaki. But this may not be surprising. No one was particularly looking for increases in drafts during the voyage. Moreover Mr Riding had to accept that if the arrival draft was calculated from the departure drafts and it is assumed that 240 tonnes of ballast had been discharged before departure and the vessel had used about 261 tonnes of fuel on the voyage from Mylaki to Algeciras, then the calculated draft figures would tend to suggest that there had been a pre – collision ingress.^[74] Thus, overall, this point does not positively assist the Defendants in my view.
44. Thirdly, it was said that Dr Baker accepted in cross – examination that the hydrostatic loading on the bottom plate of the discharge box during the voyage from Mylaki to Algeciras was unlikely to have been sufficient to trigger a disturbance of the carapace of rust scale, thereby permitting ingress of water into No 4 Hold.^[75] They argued that this therefore pointed towards failure as a result of the collision. Dr Baker certainly accepted that the hydrostatic loading^[76] was unlikely to cause the failure. But he also said that in his experience most water ingresses via sea chests and seawater pipes (where the cause had been corrosion) had occurred under conditions of wave loading, which triggered the "separation".^[77] Dr Baker also said that he would be looking for some "extraneous event" to occur that would trigger the separation of the carapace of rust scale. That event could be worsening sea conditions or some other element such as a shock or collision.^[78]
45. In my view this evidence does not prove that Dr Baker discounted altogether the possibility of ingress prior to the collision. It would depend on whether sea conditions on the voyage or some other "extraneous event" were such as to provide the additional force needed finally to dislodge the rust scale.
46. Dr Baker had suggested that the change of course immediately prior to the collision might have been an " extraneous event" that caused the failure. The Defendants submitted that this notion was wholly speculative and highly improbable. I agree. If there had been more positive evidence to support this theory it would actually have helped the Defendants, because that manoeuvre was part of the sequence of negligent actions and omissions that resulted in the collision itself. Therefore the Defendants would have been able to say that the cause of the ingress was the negligent acts and omissions that led to the collision and subsequent damage. But this last argument cannot succeed as I am not satisfied that any change of course did lead to the failure.
47. Dr Baker did not suggest any other specific event on the laden voyage from Mylaki to Algeciras had triggered the ingress. However the Claimants argued in their final submissions that, on the evidence of Dr Canepa, it was possible to conclude that on the approach voyage to Mylaki the stresses on the discharge box were sufficient to trigger a separation of the rust scale, which would lead to an ingress of water.^[79] During the approach voyage to Mylaki the aperture in the ship's side in way of the discharge box would have been above the water line, because the vessel was in ballast. The Claimants submitted that there was no evidence that the Nos 3- 4 topside wing ballast tank (above the discharge box) was filled with ballast water on the approach voyage. It is the case that the No 4 hold was the first to be loaded and closed at Mylaki. So the Claimants submit that if the bottom plate had finally failed on the approach voyage, no one would have been able to notice water in the No 4 hold before the hatch was closed at Mylaki.
48. I accept that the hole in the bottom plate of the discharge box could have been created by stresses on the approach voyage from Bijela to Mylaki. But if that were the case then water would have entered the No 4 Hold for the whole of the voyage from Mylaki to Algeciras. The Defendants point out that, depending on the size of the hole, this could have led to an ingress of up to 1900 tonnes of water. That would have produced a significant overall increase in the vessel's drafts. But there is no evidence that any one noticed such an increase. An additional 1900 tonnes would also be inconsistent with the calculated arrival drafts. The Defendants therefore submit that this all demonstrates that failure on the approach voyage was not likely to have occurred. I agree.
49. However, the question remains as to whether, taken generally, Dr Baker's acceptance that hydrostatic pressure alone during the voyage between Bijala and Algeciras would not have resulted in failure of the bottom plate, helps the Defendants. Looking at this point overall, I find that the evidence is equivocal. Dr Baker cannot point to a particular and plausible "extraneous event" to trigger the ingress. But there remains the possibility. So overall, I am not satisfied that his evidence positively assists the Defendants.
50. Fourthly, the Defendants referred to the state of the cargo after the flowing had occurred. They say that there was a central area of dry cement in No 4 Hold, which is not consistent with water washing over the hold prior to the collision.^[80] However, the parties had both instructed "cement experts".^[81] They produced a joint report dated 14 September 2001. In the joint report they agreed that no positive conclusions as to the time of ingress into No 4 Hold could be drawn from the condition of the cement cargo. Paragraph 19 of their report^[82][83][84] concludes: "The final condition of the cargo could be explained by either water entering Hold 4 during the voyage, or after the collision". Given this agreed conclusion, I cannot draw any inferences from the photographs as to the timing of the ingress into the No 4 Hold.
51. Lastly, the Defendants submitted that it could not be just coincidence that the vessel had a collision, in which she suffered substantial damage at the bow, then subsequently it was discovered that there had also been an ingress of water through a heavily corroded bottom plate in the discharge box in way of No 4 hold. But this argument does not help the Defendants. Everyone accepts that the collision occurred and then the ingress was discovered, although not until some nine days later. That sequence of events does not, by itself, prove that the collision resulted in the ingress of water. That is why other evidence is needed to demonstrate that that was the case. And if it does prove it is the case, then the "coincidence point" itself is not needed to prove causation.

ISSUE TWO: IF THE WATER INGRESS BEGAN AT OR SHORTLY BEFORE OR AFTER THE COLLISION, THEN WAS THE INGRESS CAUSED BY THE NEGLIGENCE THAT RESULTED IN THE COLLISION OR THE PRE – EXISTING STATE OF THE BOTTOM PLATE?

52. Given my conclusion on Issue One, this point does not arise and I will not consider it in any detail. In outline, the Claimants contended that even if the ingress started at or shortly before or after the collision, as a matter of "common sense" the collision was not the legal cause of the ingress of water. They submitted that the cause of the ingress was the pre – existing poor state of the bottom plate, which eventually was bound to fail at some stage in any case, even if the collision had not occurred. Therefore two conclusions followed: first the cause (in law) of the ingress was the pre – existing state of the bottom plate. Secondly, the damage to ship and cargo caused by the ingress was not foreseeable.
53. The Defendants riposted to this in two ways. First, by asserting that if the ingress was made the more likely as a result of the pre – existing poor state of the bottom plate, that did not prevent the ingress being caused by the negligence that led to the collision. That is because a tortfeasor must take his victim as he finds him, including pre – existing conditions such as the wasted bottom plate. The issue remains whether, assuming that state of affairs, in "common sense" the collision caused the ingress to the No 4 hold. Secondly, the Defendants said that if the collision (as opposed to the pre – existing condition of the bottom plate) did cause the ingress, then the resulting damage must be foreseeable. That is because this type of physical damage to goods is bound to be foreseeable if caused by a collision resulting from negligent navigation.
54. The Claimants' rebutted the Defendants' first argument by arguing that the so – called "egg – shell skull" principle does not apply to property damage, but only to personal injuries. Therefore it could not be relied on by the Defendants in this case.
55. Countless cases have stated that the courts must apply "common sense principles" to issues of causation.⁸⁴ If I had been satisfied that, as a matter of fact, the ingress had started at or shortly before or after the collision, then I would have had to consider whether, as a matter of "common sense", I should hold that the negligence that resulted in the collision was a cause of the ingress of water, as opposed to concluding that the sole cause was the pre – existing corroded state of the bottom plate.
56. On the assumption that there had been no ingress until the vessel was in the grip of the acts and omissions that led to the collision and it was those acts and omissions that triggered the final failure of the bottom plate, then I would have been inclined to conclude that the negligence resulting in the collision was the legal cause of the ingress of water.
57. My reasoning would, in summary, have been as follows: (i) the ingress had not occurred before the vessel was in the grip of the collision; (ii) those acts and omissions resulted in the final failure of the bottom plate; (iii) therefore the trigger for the failure was the events surrounding the collision; (iv) the Claimants have not pleaded,⁸⁵ let alone established, that the same damage was bound to have occurred during the voyage in any event, even if there had been no collision; (v) accordingly "but for" the collision the ingress would not have occurred; (vi) the initial poor state of the bottom plate explains why it failed when the collision took place, but assuming that the Claimants could not establish that the same damage would have inevitably occurred on the voyage even if there had been no collision, the crucial fact without which damage complained of would not have occurred is the collision itself.
58. If that reasoning is correct, then I think that two conclusions necessarily follow. First no issue on "foreseeability" can arise. Physical damage caused by the acts or omissions that resulted in the collision and ingress of water into the No 4 Hold must be foreseeable. But in law it does not matter if the precise extent of that physical damage it not foreseeable. Secondly, there would be no need to explore the interesting question of the scope of the "egg – shell skull" principle. So I will not even attempt to grapple with that issue here.

CONCLUSIONS

59. My conclusions are:

(1) The Defendants have not proved that the ingress of water into the No 4 Hold started at or just before or just after the collision.

(2) Therefore the Defendants cannot prove that the ingress of water into the No 4 Hold was caused by the collision.

.

(3) If the Defendants had proved that the ingress of water into the No 4 hold started at or just before or after the collision and was triggered by the collision, then I would have been inclined to conclude that the ingress was caused by the collision rather than the pre – existing corroded state of the bottom plate.

60. Therefore I will answer the Preliminary Issue as follows:

"The Defendants have not proved that the alleged loss and damage to the No 4 hold of the "Fedra" and to the cargo therein was caused by the collision between the "Seafarer 1" and the "Fedra".

61. I am very grateful to counsel, solicitors and experts for help I have had in this case.

Note 1   As the “Seafarer1” takes little or not part in this judgment I will refer to the “Fedra” throughout as “the vessel”.    [Back]

Note 2   The vessel was declared a CTL as a result of the damage sustained.    [Back]

Note 3   One side of the ballast box is formed by the ship’s shell plating and another by the bottom plate of the wing ballast tank.    [Back]

Note 4   Strictly speaking and as both parties accepted in argument, the pertinent question is whether the negligence of the party or parties which caused the collision also caused the damage to the No 4 hold and its cargo and the No 3 hold and its cargo.    [Back]

Note 5   The crew members were: Captain Ioannis; Chief Officer Sitaras; Chief Engineer Stefanou. The Technical Director was Mr Hatziyiannis.    [Back]

Note 6   The Claimants wished to amend their pleadings at the start of the trial to allege that the RINA Class Surveyor ought to have inspected the discharge box in way of No 4 hold and had failed to do so. The Claimants wanted to allege that, as a result of this failure, the sole or a contributory cause of the damage to the No 4 hold and the cargo therein was the negligence of the servants or agents of the owners of the “Fedra”. After submissions I ruled that this amendment could not be made.    [Back]

Note 7   Points of Agreement between Dr Ward and Dr Baker: Part A.    [Back]

Note 8   Ibid.    [Back]

Note 9   This is recorded in Point D (i) of the Points of Disagreement between Dr Ward and Dr Baker, although the existence of the stress concentrations is agreed.    [Back]

Note 10   Ibid.    [Back]

Note 11   Agreed between the two experts on corrosion: Dr Baker for the Claimants and Dr Ward for the Defendants: point A 6 of the Joint Memorandum: E1/9.    [Back]

Note 12   Joint Memorandum of Dr Ward and Dr Baker: Points of Agreement A1 and A7 respectively.    [Back]

Note 13   See the Defendants’ Written Closing Submissions on the Facts: Section D para 10.    [Back]

Note 14   Mr Riding thought it was in the region of 32.5 mm diameter post collision: see Riding (1) para 6.2.4 at E2/page 22    [Back]

Note 15   The Claimants submitted that there were three possibilities as to the timing of ingress of water into No 4 hold. They dubbed these: “pre – collision ingress”; “collision ingress” and “post – collision ingress”.    [Back]

Note 16   The Defendants counter this by saying that, at worst, there were two causes of the ingress: unseaworthiness and the collision. If so then provided the collision is a cause, they must succeed. Further, in any event, the Defendants rely on the principle that a tortfeasor must take its victim as it finds it.     [Back]

Note 17   The Claimants accepted the proposition of law that in a tort case it is enough that the tort complained of was a cause of the damage alleged, even if there were two or more competing causes. See: Heskell v Continental Express [1950] 1 All ER 1035 per Devlin J at page 1047.    [Back]

Note 18   These were summarised in a “Summary of Flooding Calculations” in his second report: E2/Tab 4/page 7. Hereafter “The Flooding Table”.    [Back]

Note 19   C/page 206: this was signed by the Master.    [Back]

Note 20   See Mr Riding in XX: Day 2/page 51 lines 31 to 47    [Back]

Note 21   Riding XX: Day 2/page 51 lines 6 to 14    [Back]

Note 22   Mr Riding in XX: Day 2/page 50 lines 52 – 55    [Back]

Note 23   Day 2/page 47/lines 53 - 56    [Back]

Note 24   Mr Riding and Dr Canepa agree the consumption figures.    [Back]

Note 25   Master’s statement para 16: A/3/page 46. Figures noted in Mr Riding’s notebook: E2/Tab 17/page 7; confirmed in cross-examination: Day 2/page 48/lines 34 – 35.    [Back]

Note 26   Confirmed by Mr Riding in XX: Day 2/page 48 lines 34 – 35.    [Back]

Note 27   Day 2/page 49 lines 17 – 18.    [Back]

Note 28   Day 2/page 51    [Back]

Note 29   Day 2/page 5 lines 16 – 18.    [Back]

Note 30   Mr Riding agreed with the mean draft figure: E2/Tab 4/Annex C at para 2.    [Back]

Note 31   It is agreed that if the 240 tonnes was still on board, then the figures would be: forward 11.65 m; aft 10.49 m and mean 11.07 m.    [Back]

Note 32   Day 3/pages 4 - 5    [Back]

Note 33   E2/Tab 1/Annex D.    [Back]

Note 34   E2/Tab 2/page 7    [Back]

Note 35   Day 3/page 4/lines 8 - 13    [Back]

Note 36   Day 3/page 5/lines 10 - 38    [Back]

Note 37   There is no reference in either the statement of the Master or the Chief Officer to post – collision drafts being taken.    [Back]

Note 38   Riding (1)/E 2/Annex C photo No 3.    [Back]

Note 39   F/Tab 2/page 4    [Back]

Note 40   They rely on the principles set out by Mustill LJ in: The Filiatra Legacy [1991] 2 Lloyd’s Rep 337 at 360 – 364.    [Back]

Note 41   Ibid.    [Back]

Note 42   E2/Tab 5/page 4    [Back]

Note 43   This assumes that the 240 tonnes of ballast had been discharged before the voyage to Algeciras.    [Back]

Note 44   Day 3/page 6/lines 7 – 24.    [Back]

Note 45   E2/Tab 4/page 7    [Back]

Note 46   Mr Riding accepted in cross-examination that this was a calculated figure: Day 3/page 8/lines 37-39.    [Back]

Note 47   Revised Table added to Dr Canepa’s first report: E2/Tab 5/page 4B    [Back]

Note 48   E2/Tab 5/pages 5 and 6; cross – examination: Day 3/page 72 line 10 to page 73 line 11    [Back]

Note 49   This assumes a head of water of 1.15 metres and a co – efficient of friction of about 0.65. See Dr Canepa’s Table at E2/Tab 7/page 5 para 3.3. Those figures were regarded as “fair” by Mr Riding in cross examination. See further, paragraphs 35 and 36 and footnotes 68 to 70 below.    [Back]

Note 50   Cross examination: Day 3/page 11/lines 7 – 11 and 40 - 43    [Back]

Note 51   Noted in Mr Riding’s notebook as “F 12.30; A 10.35”: see: E2/Tab 17/page 20    [Back]

Note 52   Day 3/page 11/lines 48 - 55    [Back]

Note 53   Day 3/page 12/lines 3 - 18    [Back]

Note 54   Dr Canepa’s first report: E2/Tab 5/pages 5 and 6    [Back]

Note 55   Closing submissions: para 62.    [Back]

Note 56   Day 3/page 12/lines 11 – 18.    [Back]

Note 57   E2/Tab 5/page 6    [Back]

Note 58   Day 3/page 12/lines 51 – 52.    [Back]

Note 59   Day 3/page 15/lines 12 – 14.    [Back]

Note 60   Day 3/page 16/lines 30 – 48. However the Defendants submitted in their written submissions on the draft figures that Mr Riding’s figures were actually based on the statement of the Master that he had observed at least 5 metres of water in the No 3 hold.    [Back]

Note 61   Master’s statement: A/Tab 3/page 57 at para 21. It was noted in the Log book: B/91.    [Back]

Note 62   Day 3/page 16/lines 30 – 36.    [Back]

Note 63   This was Mr Riding’s evidence in cross examination at Day 3/page 16/lines 33 – 34.    [Back]

Note 64   In their written submissions on the draft figures, the Defendants accept that there is simply a conflict between the two pieces of information reported by the Master at the same time, “so the Master must be wrong on one”.    [Back]

Note 65   Riding (1): E2/Tab2/Annex C page 4: photo and comment.    [Back]

Note 66   Riding XX: Day 2/page 38 lines 1 – 4.    [Back]

Note 67   His statement at A/Tab 3/page 83. The statement is dated 30 May 1998, ie. the day he fitted the “fid”.    [Back]

Note 68   See: E2/Tab 17/page 59. Mr Riding notes at the same place that the Chief Engineer advised it was 40mm.    [Back]

Note 69   Riding (1): E2/Tab 2/page 18: para 5.2.    [Back]

Note 70   Riding XX: Day 3/page 21 lines 28 – 54.    [Back]

Note 71   For the flow rates using a coefficient and various heads of water: see Dr Canepa’s first report: E2/Tab 7/page 5 at para 3.3.    [Back]

Note 72   Canepa in XX: Day 3/page 61 line 52 to page 62 line 7    [Back]

Note 73   Mr Riding (20: E2/Tab 4/para 2.1. He thought the size would stabilise within hours. Dr Baker (1): E1/Tab 6/page 8: para 4.2.6. He thought the size would stabilise within a few minutes of the initial burst.    [Back]

Note 74   Mr Riding XX at Day 2/page 49 lines 9 – 18.    [Back]

Note 75   Dr Baker XX at Day 4/pages 21 to 23.    [Back]

Note 76   That is, in Mr Eder’s phrase, the loading “when nothing else is happening”: Day 4/page 22 lines 18 - 20    [Back]

Note 77   Dr Baker XX at Day 4/page 22 lines 24 to 34.    [Back]

Note 78   Dr Baker XX at Day 4/page 23 lines 1 to 18.    [Back]

Note 79   Claimants’ Submissions para 71, relying on Dr Canepa’s evidence at Day 3/page 82 lines 19 to page 83 line 40.    [Back]

Note 80   The Defendants rely on photographs 14 and 15: Riding (1) at E2/Tab 2/Annex C page 8.    [Back]

Note 81   Dr MP Webster for the Defendants and Professor PC Robery for the Claimants.    [Back]

Note 82   E2/Tab 19/page 5    [Back]

Note 83   See eg: Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918] Ac 350; Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360.    [Back]

Note 84   The only relevant paragraphs in the Claimants’ Amended Statement of Case are paras 9(i) and 10(iv): A/pages 24 – 25. Neither make the assertion that the bottom plate was bound to fail in any event, merely that it was liable to do so or could do so.     [Back]