England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		30 October 2014

Mr Justice Eder:

1. These proceedings arise out of the grounding of a motor yacht, Temptation 2 of Brighton, at about 1200 hours on 11 July 2008 while manoeuvring at slow speed amongst other yachts anchored in the Bay of Santa Ponsa in Majorca. The hull was breached aft in way of the port P-bracket and partial flooding of the hull resulted. On board at the time was the first claimant, Mr Brian Austen, who was piloting the yacht, his wife Mrs Austen and their son Andrew. I should mention that there was a suggestion that Mr Austen had acted negligently in the course of manoeuvring the yacht. However, Mr Mantle on behalf of the defendant expressly conceded that any such suggestion was irrelevant to the issues in the present case and I say no more about it.
2. Soon after the grounding, divers managed to apply underwater epoxy putty to seal the leak around the P-bracket recess in the hull, sufficient to allow the vessel to be pumped out using a salvage pump. The vessel was then towed off the rocks and lifted ashore at Santa Ponsa by about 1800 hours.
3. The claimants are the joint owners of the yacht which had been built by and purchased from the defendant, Pearl Motor Yachts Ltd. It was about 10 months old at the time of the incident and still under the defendant's 2-year warranty. The yacht is part of a range of yachts under the "Pearl" brand. Under that brand, the defendant manufactures and sells a range of yachts currently sized between 50 feet to 75 feet. They manufacture between about 2 and 6 yachts annually. Thus, it is a small volume manufacture of yachts compared to larger yacht manufacturers. The Pearl brand is a more bespoke yacht.
4. The Pearl 60 is a 4-cabin aft cabin 60 feet motor yacht, the most popular model ever produced by the defendant. Initially the yacht was launched as the Pearl 55 in 2005 but in 2006 the yacht was upgraded. During the period 2005 to date, the defendant has sold about 27 Pearl 55/Pearl 60 yachts. Of these, 6 have been Pearl 55s and the remainder Pearl 60s. The Pearl 60s overall length is 17.468 metres. The draft depth below water is 1.525 metres. Its dry weight is 27.5 tonnes.
5. Following the incident, the yacht was returned to England for repairs. Those repairs were duly completed in around June 2009 following which the yacht was redelivered back to Majorca where it became usable again in August 2009. The total repair costs amounted to £456,781.76. In addition, the claimants say that they have suffered loss of use, loss of amenity and other losses totalling approximately £75,000.
6. In essence, the claimants claim these losses from the defendant on two main bases viz: (i) breach of the sale/building contract; and/or (ii) breach of the duty to ensure that the yacht was of reasonably satisfactory quality and fit for the purposes of use as a luxury pleasure craft under s14 of the Sale of Goods Act 1979. Against the claim for the cost of repairs, the claimants concede that they must give credit of some £40,000 in respect of the limited repairs that would have been necessary as a result of the grounding in any event.
7. The case is somewhat unusual because it is admitted here by the defendant that the yacht was not built to contractual specification and that there was therefore a breach of clause 1.1 of the sale/building contract. This requires some further explanation. The yacht has twin engines with port and starboard propellers. On the underside of the hull, each propeller is supported by a P-bracket consisting, in effect, of a small tube, through which the propeller shaft passes, supported by a vertical bracket attached at the top to a horizontal "palm" which is affixed by a series of vertical bolts to a recess in the underside of the hull laminate. In accordance with the specification, the hull laminate is required to be 20mm thick. In order to create the recess into which the palm of the P-bracket is fixed, the hull laminate is moulded. According to the contract specification, the edges of the recess should have retained throughout the original 20mm thickness. However, it is common ground that in breach of the specification the edges around the recess did not retain the original 20mm thickness but became "thinned" to a thickness of only about 7mm.
8. At the outset, I should emphasise, as did Mr Mantle on behalf of the defendant and as is common ground, that although the sale of the yacht took place in the EU and therefore the yacht needed to comply with the Recreational Craft Directive ("RCD"), there is nothing in the RCD or any other applicable rules which dictated any specific requirements with regard to the strength of the hull – and, in particular, the hull laminate – to withstand the external forces that might ordinarily be expected in a grounding of the kind which occurred in the present case. As it seems to me, this might be very important in considering the claimants' alternative case that the yacht was not fit for purpose but it does not seem to be relevant to the claimants' primary case based on a breach of the contract specification; and I did not understand Mr Mantle to suggest otherwise.
9. It is common ground between the experts that (i) the propellers probably hit the rock as evidenced by severe damage to, in particular, at least 2 of the blades on the port propeller; (ii) the load on the P-bracket from the propeller blades resulted in the failure of the as-built hull laminate in bending due to a vertical load or a fore/aft rotational load (although the latter load was minimal and, as I understood, can effectively be ignored); and (iii) the initial crack is most likely to have occurred along the aft edge or around one of the aft corners of the port P-bracket palm i.e. in an area where the laminate was only 7 mm instead of 20 mm.
10. As I say, the defendant accepts that the reduction in thickness of the hull laminate from 20mm to 7mm in the areas described above constituted a breach of the contract specification. However, by way of defence to the present claim, the defendant in effect says that such breach made no difference. In other words, the defendant says that even if the yacht had been built in accordance with the contract specification, the hull would still have been breached as a result of the grounding; that the claimants cannot therefore say that they have suffered any loss as a result of the defendant's breach; and that therefore, the claim must fail.
11. There was some debate before me as to the burden of proof in these unusual circumstances. However, Mr Watthey on behalf of the claimants accepted that the burden of proof was on his clients to establish on a balance of probability that the same damage would not have occurred if the yacht had been built in accordance with the contract specification. So that is the main question in these proceedings i.e. on a balance of probability would the same damage have occurred even if the yacht had been built in accordance with the contract specification? However, I should emphasise that Mr Watthey submitted that even if that were the case, he would still have his alternative case under s14 of the Sale of Goods Act although this would fall away if he succeeded on his primary case.
12. On behalf of the claimants, Mr Brian Austen, who was on board and was piloting the yacht at the time of the incident provided a written statement and gave oral evidence. On behalf of the defendant, Mr Roy Parker, who witnessed the whole incident involving the sinking of the Temptation 2 from his own yacht which was moored in the bay only 200 metres away when the incident happened likewise provided a written statement and gave oral evidence. As explained by Mr Parker, the incident was also witnessed by his wife who was on board their yacht at the time. She took a series of photographs of Temptation 2 at the time of and immediately following the grounding which were an important part of the evidence. In addition, a written statement by Mrs Austen was also served on behalf of the claimants and put in evidence. She was also on board Temptation 2 at the time of the incident. However, her evidence was not the subject of any challenge and she did not give oral evidence.
13. On behalf of the defendants, Mr Iain Smallridge provided a written statement and gave oral evidence. He is the defendant's Managing Director. He gave evidence that he was unaware of any other complaint from any customer of the Pearl 60 yacht or any other litigation the defendant has faced. Mr Mantle relied on this evidence in support generally of the case that the Pearl 60 model was generally fit for purpose as a luxury yacht. In general terms, that may well be the case. However, Mr Smallridge accepted in cross-examination that there were only about 5 similar yachts built by his company before this particular yacht was built and it was not known how many of these similar yachts built might have had a "thin" hull laminate in way of a P-bracket. Further, unless any of these yachts had had a similar grounding accident (which was unknown), it would, in my view, be impossible to say whether or not this was a general problem or not.
14. In this context, Mr Watthey sought to rely on a survey report of another Pearl 60 yacht called the Bacchus in which the surveyor commented on fracturing which he observed was evident in way of the port and starboard P-bracket connections and, in that context, made the following recommendation:

"We would strongly suggest that the areas in way of the P-brackets are further examined by destructive testing, in order to ascertain the thickness of the hull moulding in way of the P-bracket recesses."

15. Mr Watthey relied upon such evidence generally in support of his case. However, in my view, this evidence is of little assistance in the present context. It is not known whether any destructive testing took place, nor what the results of such testing were or might have been. Further, it is noteworthy that the survey was carried out on 5 September 2009 i.e. about a year later than the incident in question by the same surveyor who was involved with the grounding of the Temptation 2. Mr Smallridge's evidence was that in fact there was no fracturing at all and that what the surveyor was referring to was only cosmetic. In my view, this evidence concerning the Bacchus is tenuous in the extreme and is of little, if any, assistance in considering the specific issues arising in the present case.
16. Mr Watthey also sought to place some reliance on the fact that after the grounding incident the independent expert dealing with the scope of repairs required the hull laminate to be of the as-designed thickness i.e. 20mm and not 7mm; and that additional internal webbing was inserted in the course of the repairs for extra strength. However, in my view, such matters are again of little, if any assistance in considering the specific issues which arise in the present case.
17. In addition to the factual evidence, the parties' served reports from naval architects viz. the claimants served reports from Mr Andrew Humphries of Vectis Marine Design Limited, who carried out a finite element analysis; and the defendant served reports from Mr Alex Shimell of Gurit (UK) Ltd. In the usual way, Mr Humphries and Mr Shimell prepared a joint statement setting out the points of agreement and disagreement and both gave oral evidence. I should like to extend my thanks to them for their assistance which I have found particularly helpful. In addition, I should mention the previous work done by High Modulus originally instructed on behalf of the defendants upon which both experts relied. Further, the claimants put in expert evidence with regard to quantum although this was not the subject of dispute and, in the event, was agreed.
18. In very broad terms, Mr Watthey on behalf of the claimants submitted that the as-built laminate was perilously thin and extremely weak by comparison with the as-designed laminate i.e. only 7 mm compared with 20 mm or only about one-third thick. Further, based on calculations performed by High Modulus as agreed between the experts, the theoretical failure of the as-built laminate in bending due to a vertical load assuming failure of the laminate along both long sides of the P-bracket palms was likely to be around 7.7 kN; and that this compared with a figure of 40.5 kN for the as-designed laminate. In other words it was common ground that the as-designed laminate in the relevant area was 5.3 times as strong as the as-built laminate. (I should mention that based on calculations by High Modulus the experts also agreed that the failure in shear of the as-built laminate was 167 kN compared with 501 kN for the as-designed laminate although it was common ground that the shear force was not directly relevant to the cause of failure in the present case.)
19. I agree that these figures indicate intuitively that it might be less likely that the as-designed laminate would have failed but it does not seem to me that it necessarily follows that the as-designed laminate would not, on the balance of probability, have failed in any event. This depends crucially on the forces that were created in the course of the grounding. In particular, if the relevant vertical forces exceeded 40.5 kN, then it is common ground that there would have been a failure in any event. In such circumstances, the fact that the as-designed laminate would have been 5.3 times stronger would have made no difference.
20. In essence, Mr Watthey submitted that the relevant vertical forces in the course of the grounding were significantly less than 40.5 kN. In that context, he relied generally on the evidence of Mr Austen with regard to the grounding which, save as appears below, I accept. In particular, Mr Austen confirmed that he and his wife arrived at the entrance to the bay at about 12.10 hours. At the time, the weather was good and the sea was calm. As they approached the bay, Mr Austen throttled back, reducing speed in order to allow plenty of time to prepare the anchor. He also reduced the chart size on the plotter to give greater detail notwithstanding the fact that he knew the bay well. With everything prepared, they proceeded into the anchorage area at tick-over speed. Mr Austen said this was about 5 knots. (In fact, the experts agreed that the speed of the yacht must have been slightly higher i.e. about 6 knots although it was common ground that such small difference did not matter.) There was already a number of boats at anchor and given that the anchorage was busy, Mr Austen decided to stay on the outside of the anchored vessels whilst he decided on a suitable position. As he approached the anchorage, he left the cardinal mark to port and after about another 100 feet further, he felt a "gentle rumble", followed by what he said he could only describe as a "clonk". The engines immediately stalled. According to Mr Austen, there was no noticeable jolting movement as the vessel grounded and no immediate change in the height at which the yacht was sitting in the water. Mr Austen described the area in the vicinity of the grounding as consisting of a number of sharp rocks although the yacht came to rest on what he described as a relatively smooth rock. (In passing, I note that the experts agreed that the hull at the bow hit some rock first and that from scrape marks on the keel, the yacht appears to have come to a stop in approximately 4.5m.)
21. Mr Watthey relied on this general description of the grounding incident to say, in effect, that this was not a "violent" grounding and that this was therefore inconsistent with any suggestion that the vertical forces on the P-bracket on the underside of the hull could have exceeded 40.5 kN.
22. In further support of that suggestion, Mr Watthey also relied upon the evidence of Mr Parker. In summary, his evidence was that his wife called out to him to look at the yacht (i.e. Temptation 2) coming in as it was heading straight for the rocks. He looked up to see it motoring past close to the Cardinal Buoy running aground almost immediately. According to Mr Parker, her momentum caused the bow to lift as she ran up the rocks coming to a stop tilting towards her starboard side; and his opinion was that this would have caused considerable damage to the vessel's underwater running gear since this would be crushed between the rock and underside of the hull. In his oral evidence, he described the vessel as if it were "coming up a slipway".
23. Again, Mr Watthey relied upon this evidence of Mr Parker in support of his general case that the grounding was not a "violent" incident and that the forces underneath the hull would have been insufficient to cause any damage in way of the P-bracket if the yacht had been built in accordance with the contract specification.
24. Mr Shimell had a different take on the evidence of Mr Parker. In particular, Mr Shimell's view was that the bow was lifted and the boat was heeled during the grounding process, and that this would have created a vertical component in addition to the horizontal load.
25. However, in my view, this general evidence of Mr Austen and Mr Parker as to the nature of the grounding is ultimately of little, if any, assistance, as to the size, location and direction of relevant forces on the underside of the hull in way of the P-bracket still less in deciding the critical question whether or not such forces would have been of such magnitude as to result in failure of the laminate even if it had been of the as-designed thickness. As both the experts agreed, the complex nature of any grounding incident makes it impossible generally to estimate the location, magnitude and direction of the grounding loads due to the various load paths and the different stiffness of the structure supporting the P-bracket. However, both experts sought to draw conclusions from the specific evidence available which I consider in turn.
26. High on Mr Mantle's list in support of his case that the laminate would have failed even with the as-designed thickness was the evidence of the experts with regard to the port propeller shaft. It is common ground that this showed a deformation of 60 mm or 15 degrees and that this deformation and the initial hull failure occurred during the initial grounding impact when the port propeller hit the rock until the yacht came to a stop. It is also agreed between the experts that having regard to the yield strength of the material from which the shaft was constructed and the diameter of the shaft, the bending moment required to bend the shaft in such manner was 16.1 kNm. However, there was greater uncertainty as to the precise mechanism which caused the propeller shaft to bend. In broad terms, the experts agreed that the force exerted on the propeller shaft was initially horizontal (as the propellers struck the rock) and then translated to an entirely vertical force as the vessel came to a halt. Of course, the forces necessary to create a bending moment of approximately 16 kNm will depend upon the lever length. Mr Shimell's opinion was that to create such a bending moment of approximately 16 kNm, it would be necessary to have a horizontal loading of 59.6 kN or (due to a shorter lever) a vertical loading of 107 kN. Mr Humphries' figures were 48 kN (horizontal) or 71 kN (vertical). By paragraph 12 of the experts' Joint Statement it was agreed that the lever to bend the propeller was between the Vectis (i.e. Mr Humphries) proposed lever, giving a lower load and the Gurit's (i.e. Mr Shimell's) proposed lever giving a higher load.
27. As appears from the Joint Statement, the opinion of Mr Shimell was as follows:

"In Alex Shimell's opinion, the force required to bend the shaft resulted in a vertical load on the P-bracket that exceeds the failure strength of both the as-build and the as-designed laminates."

28. Relying on this broad statement of opinion, Mr Mantle submitted that there must have been a vertical load in excess of 40.5 kN in way of the P-bracket. I do not accept that submission. Rather, it seems to me that the figures stated above merely show that depending upon the combination of vertical and horizontal loading forces, it is possible that there may have been a vertical force in excess of 40.5 kN. However, these figures do not establish, of themselves, that that was indeed the case. In that context, it is important to note that the experts agreed that the bending of the shaft was caused by a "mostly horizontal force on the propeller blades and that this force rotated into a vertical load at the time the boat came to a halt …" (emphasis added). Whilst such agreement lacks specificity, the result is that Mr Mantle cannot positively rely on these figures to support a case that the vertical forces in way of the P-bracket at the initial stage of the grounding exceeded 40.5 kN; and, in the event, I understood that, after due consideration, he conceded that this must necessarily be so.
29. However, that is not necessarily the end of the matter. For the reasons stated, I do not consider that these figures with regard to the port propeller shaft necessarily show that there must have been a vertical force in excess of 40.5 kN in way of the P-bracket at the initial stage of the grounding. However, the figures certainly do not demonstrate that such a force might not have been created. Indeed, I accept that they show that this was at least possible. Given that Mr Watthey accepted, as I have stated, that the burden lay on him to show that the failure would not have occurred even if the vessel had been built as designed, it remains to consider what, if any, other evidence there may be to support such a case.
30. In broad terms, Mr Watthey submitted that there was ample evidence to show positively that the vertical force in way of the hull laminate was substantially below 40.5 kN. Indeed, it was his submission that the vertical force was likely to have been no more than about 7.7 kN. In particular, Mr Watthey relied on the following matters.
31. First, Mr Watthey's main argument rested on two main planks viz.

a) The size of the crack which he said was relatively small immediately after the grounding i.e. no more than about 6 inches in length. (It is common ground that the final crack length was about 30 inches but this was significantly later in time and, for present purposes, is not directly relevant.)

b) The fact that given the failure load in bending of the as-built laminate was 7.7 kN, the load applied to cause this relatively small crack of about 6 inches could not have exceeded this figure or, at least, could not have been as large as 40.5 kN.

This gave rise to much debate as to the size of the initial crack and, in particular, whether the initial crack was indeed relatively small i.e. no more than about 6 inches.

32. As to the suggested original length of crack of about 6 inches, this was indeed consistent with what Mr Austen said in his original written witness statement dated 14 March 2014 signed with a statement of truth. In particular, Mr Austen there stated that after sending out a mayday he went to look through the bilges to see what damage there might be. The statement continued:

"On inspection, I could see that there was a crack of about 6 inches around the port P-bracket and that water was already flowing in at a steady rate through that gap."

33. In the event, and somewhat surprisingly, Mr Watthey informed me on opening that what Mr Austen had there stated was not in fact true i.e. Mr Austen had not in fact seen any crack of 6 inches. On one view, this was something of a bombshell to the claimants' case – in particular, because the view expressed by Mr Humphries in his report was that this piece of information was "fundamental" to understanding how the hull laminate failed.
34. No doubt anticipating this development and in order to plug this apparently important gap in the claimants' evidence, the claimants' solicitors had served a few days before the commencement of the trial a draft unsigned "summary" of a witness statement from one of the divers, Mr Dikmen, which had been prepared by the claimants' solicitors following very recent telephone discussions and email exchanges with Mr Dikmen and which purported to give evidence of the size of the crack which he (Mr Dikmen) said he had observed from the outside of the hull during a dive shortly after the grounding. At the same time, the claimants' solicitors issued and served an application notice for permission to adduce such supposed "evidence" from Mr Dikmen. However, it appeared from a separate email from Mr Dikmen that he had refused to sign that draft summary statement in particular because, as he stated in the email, he could not remember the exact measurements of the crack.
35. I heard Mr Watthey's application to adduce this "evidence" at the beginning of the trial. As formulated, this application was, in my view, misconceived. In truth, there is no jurisdiction to allow a party simply to put in evidence an unsigned "summary". However, Mr Watthey in effect submitted that he should be permitted to put in this summary as hearsay evidence and that he would, if necessary, call either or both of the solicitors who would explain the discussions they had had with Mr Dikmen and how the summary came to be prepared. In the event, after hearing submissions from both Counsel, I rejected Mr Watthey's application for reasons which I gave in a separate ruling and which I need not repeat. The result was that, at the start of the trial, the claimants were left bereft of any direct evidence as to the size of the initial crack.
36. When Mr Austen gave oral evidence, he confirmed that what he had said in his signed witness statement was indeed untrue i.e. he had never gone down to look through the bilges; and that he had never seen any crack still less any water flowing through any such crack. Mr Austen recognised that this was inconsistent with what he had said in his statement and somewhat embarrassingly could give no explanation at all as to how such an untrue statement had got into his statement nor why he had signed the statement in that form – although, by way of part explanation, he then said in evidence that he thought that the diver (i.e. Mr Dikmen) had told him at the time when he came up from his dive following the grounding that he (i.e. Mr Dikmen) had seen a crack of about 6 inches. Mr Mantle did not challenge this evidence. The result is that despite Mr Austen's retraction of what he had originally said about the size of the crack in his statement and in this rather roundabout way, the (unchallenged) evidence before the Court based on hearsay as to what Mr Austen now says he was told by Mr Dikmen shortly after the grounding, is that the size of the crack was indeed about 6 inches.
37. However, I am very concerned about the circumstances in which this evidence came to be adduced as referred to above; and it does not lie happily with Mr Dikmen's email as referred to above. Further, the fact is that the defendant has not had any opportunity of testing the evidence of Mr Dikmen. In particular, it is not clear exactly when he saw the crack and allegedly reported its size to Mr Austen. Nor has the defendant been able to test what the diver was able to see and how easy or difficult this may have been. Standing alone, I do not consider that I can place any real weight on this hearsay evidence although I bear it well in mind.
38. Second, Mr Watthey relied heavily on the evidence of Mr Humphries who showed by calculation that if the vertical forces had been as much as 40.5 kN, then the recess of the as-built hull laminate in way of the palm of the P-bracket would have been, in his words, "obliterated" whereas, in fact, that did not happen here. In broad terms, Mr Shimell agreed that the as-built hull laminate in this position had not been "obliterated"; but his opinion was that such "obliteration" would not necessarily have occurred even if the vertical forces had been as much as 40.5 kN in particular because, as soon as there was a failure, the forces would in effect have been "dissipated". In general, I see some possible force in the thesis that the initial forces would probably have been dissipated to some extent in such circumstances. However, Mr Shimell did not carry out any calculations to support such thesis. In contrast, Mr Humphries' opinion was, in effect, that although the initial forces might have dissipated to some extent in such circumstances, it is highly unlikely that any such dissipation would have been of such magnitude as to suggest that the initial forces might have been as large as 40.5 kN. In my view, such latter opinion is more consistent with the detailed calculations performed by High Modulus and would seem preferable. In this context, Mr Shimell also tentatively suggested that there was at least a possibility that the initial crack might have been significantly bigger than 6 inches but that this had somehow "closed-up" after the impact of the initial grounding when the yacht came to rest. However, it is difficult, if not impossible to imagine how this sequence of events might have occurred in reality; and, in my view, it is a possibility which is, at best, extremely unlikely.
39. Third, in support of his case that the initial crack was relatively small i.e. no more than about 6 inches, Mr Watthey relied heavily on the evidence with regard to the rate of ingress of water, in particular the calculations which had been carried out by Mr Humphries with regard to flow rates as summarised in the following table:

	OPEN CRACK LENGTH	ADOPTED OPEN CRACK WIDTH	INITIAL FLOW RATE	INITIAL FLOW RATE
	(inches)	(mm)	(mm)	(litres/minute)
Initial Crack - Minimum	3	76	5	47
Initial Crack – Nominal	6	152	10	186
Initial Crack – Maximum	9	228	15	424
Final Crack size	30	780	20	1927

40. On the basis of these figures, the evidence of Mr Humphries was, in summary, that if the crack had been much larger than "about 6 inches" then the rate of flooding would have been much more rapid than in fact occurred such that the water would have been over the floorboards in the aft cabin within as little as about 5 to 7 minutes after the grounding; but there is no evidence to this effect. Further, in such circumstances, the yacht would have heeled to starboard more rapidly and settled at her final angle more quickly than she did. Inspection of the photographs taken by Mrs Parker shows that it took approximately 17 minutes for the yacht to settle to her maximum heel angle. On this basis, Mr Humphries' evidence was that this indicated a progressive flooding from the initial grounding rather than catastrophic flooding as would inevitably have occurred if the vertical forces had been as much as 40.5 kN.
41. Mr Shimell did not disagree with the calculated flow rates as summarised in the table above. That is hardly surprising because they are simply the result of a relatively simple arithmetical calculation. However, the main dispute between the experts concerned the efficacy of the bilge pumps to deal with the ingress of water. In that context, it is common ground that the yacht had two bilge pumps viz: (i) a Model 02 with a nominal capacity of 1,500 gallons per hour; and (ii) a Model 14A with a nominal capacity of 3,700 gallons per hour. It is also common ground that both these pumps would have been in operation, or at least triggered automatically into operation, shortly after the initial ingress of water. Originally, it was Mr Shimell's evidence that the working capacity of these bilge pumps should be assumed to be about 80% of their nominal capacity that if the initial crack had been only about 6 inches, then the bilge pumps would have been able to cope without difficulty and flooding would not have occurred; that this strongly suggested that the initial crack must have been bigger than about 6 inches; and that therefore the vertical forces must have been considerably in excess of those calculated by Mr Humphries. However, the flaw in this analysis is, in my view, that as Mr Shimell frankly conceded, he had no real expertise in expressing a view on the working capacity of the bilge pumps. In that context, the standard manual indicated that generally the working capacity of bilge bumps would in practice be substantially reduced for various reasons and that the "norm" might be as little as 40% of their nominal capacity. On this basis, and converting measurements to compare like with like, Mr Humphries calculated that the total pumping capacity of both bilge pumps would in practice probably be of the order of 158 litres per minute. Having regard to the table of flow rates stated above, Mr Humphries further calculated that if the initial crack was no more than about 6 inches, the net ingress of water would be 186 - 158 = 28 litres per minute. In his opinion, this net flow rate is consistent with the events following the initial grounding as described by Mr Austen and also as observed in the photographs taken by Mrs Parker showing the vessel taking approximately 17 minutes to settle to her maximum heel angle. I accept that evidence; and, in my view, it points strongly in favour of the conclusion reached by Mr Humphries that the crack was indeed relatively small i.e. no more than about 6 inches and that the vertical forces in way of the P-bracket were no more than about 7.7 kN or, at least, substantially less than 40.5 kN.
42. Taking all these matters into consideration, it is my conclusion that the claimants have indeed established, on a balance of probabilities, that if the hull laminate had been of the as-designed thickness then the hull laminate would not have suffered a fracture so as to lead to the ingress of water. In such circumstances, it is unnecessary to consider the claimants' alternative case. As to quantum, the figures are agreed. Accordingly, I would invite Counsel to seek to agree an order to reflect the terms of this Judgment as well as all other consequential matters including costs. Failing agreement, I will deal with any outstanding matters.