LORDS DECISIONS

LORDS DECISIONS >>

LORDS

LORD FRASER OF TULLYBELTONLORD DIPLOCKLORD ROSKILLLORD BRANDON OF OAKBROOKLORD TEMPLEMAN

LORD FRASER OF TULLYBELTON

LORDS,

LORD BRANDON OF OAKBROOK. I AGREE WITH IT, AND FOR THE REASONS GIVEN BY HIM I WOULD ALLOW THIS APPEAL.

LORD DIPLOCK

LORDS,

LORD BRANDON OF OAKBROOK. I AGREE WITH IT AND FOR THE REASONS WHICH HE GIVES I WOULD ALLOW THE APPEAL.

LORD ROSKILL

LORDS,

LORD BRANDON OF OAKBROOK. FOR THE REASONS WHICH HE GIVES IN HIS SPEECH I TOO WOULD ALLOW THIS APPEAL.

LORD BRANDON OF OAKBROOK

LORDS,

LORDSHIPS' HOUSE.

LORDS, THE APPEAL DOES NOT RAISE ANY QUESTION OF LAW, EXCEPT POSSIBLY THE QUESTION WHAT IS MEANT BY PROOF OF A CASE "ON A BALANCE OF PROBABILITIES." NOR DO UNDERWRITERS CHALLENGE BEFORE YOUR LORDSHIPS ANY OF THE PRIMARY FINDINGS OF FACT MADE BY BINGHAM J. THE QUESTION, AND THE SOLE QUESTION, WHICH YOUR LORDSHIPS HAVE TO DECIDE IS WHETHER, ON THE BASIS OF THOSE PRIMARY FINDINGS OF FACT, BINGHAM J. AND THE COURT OF APPEAL WERE JUSTIFIED IN DRAWING THE INFERENCE THAT THE SHIP WAS, ON A BALANCE OF PROBABILITIES, LOST BY PERILS OF THE SEA.

LORDS, THE RELEVANT FINDINGS OF FACT, MADE BY BINGHAM J. AFTER A HEARING WHICH OCCUPIED 12 DAYS, WERE AS FOLLOWS:

LORDS, WITH REGARD TO THE CAUSE OF THE SHIP'S LOSS, THE SHIPOWNERS RELIED AT ONE TIME ON NEGLIGENCE OF THE CREW (WHICH WAS ALSO COVERED BY THE RELEVANT POLICIES) AS AN ALTERNATIVE TO PERILS OF THE SEA. SUBSEQUENTLY, HOWEVER, THE SHIPOWNERS ACCEPTED THAT, EVEN IF THE LOSS HAD BEEN CONTRIBUTED TO IN SOME WAY BY NEGLIGENCE OF THE CREW, SUCH NEGLIGENCE COULD NOT, IN ALL THE CIRCUMSTANCES OF THE CASE, BE REGARDED AS THE PROXIMATE CAUSE OF THE LOSS. THE SHIPOWNERS' CASE ACCORDINGLY RESTED, AND RESTED ONLY, ON LOSS BY PERILS OF THE SEA.

LORDS, COUNSEL FOR THE SHIPOWNERS CONTENDED BEFORE YOUR LORDSHIPS THAT HIS CASE HAD NEVER BEEN TIED IRREVOCABLY TO A LOSS BY ANY SPECIFIED PERIL OF THE SEA: IN PARTICULAR IT HAD NEVER BEEN TIED TO LOSS BY COLLISION WITH A SUBMARINE. IT SEEMS TO ME, HOWEVER, THAT ONCE IT WAS SHOWN THAT THE WATER WHICH SANK THE SHIP HAD ENTERED THROUGH AN APERTURE IN HER SHELL PLATING, THE BURDEN OF PROOF WAS ON THE SHIPOWNERS TO SHOW WHAT PERIL OF THE SEA, IF ANY, COULD BE SHOWN, ON A BALANCE OF PROBABILITIES, TO HAVE CREATED THAT APERTURE. THE SHIPOWNERS COULD NOT, IN MY VIEW, RELY ON A RITUAL INCANTATION OF THE GENERIC EXPRESSION "PERILS OF THE SEA", BUT WERE BOUND, IF THEY WERE TO DISCHARGE SUCCESSFULLY THE BURDEN OF PROOF TO WHICH I HAVE REFERRED, TO CONDESCEND TO PARTICULARITY IN THE MATTER.

LORDS, THE RESULT OF UNDERWRITERS PUTTING FORWARD THIS ALTERNATIVE CAUSE OF THE SHIP'S LOSS WAS TO LEAD BINGHAM J. INTO APPROACHING THE DECISION WHICH HE HAD TO MAKE AS BEING A SIMPLE CHOICE BETWEEN THE CAUSE OF LOSS RELIED ON BY THE SHIPOWNERS AND THE ALTERNATIVE CAUSE OF LOSS PUT FORWARD BY UNDERWRITERS. ALTHOUGH HE HAD IN AN EARLIER PART OF HIS JUDGMENT REFERRED EXPRESSLY TO THE OBSERVATIONS WITH REGARD TO BURDEN OF PROOF MADE BY SCRUTTON L.J. IN LA COMPANIA MARTIARTU V. THE CORPORATION OF THE ROYAL EXCHANGE ASSURANCE [1923] K.B. 650, 657, WHICH F QUOTED EARLIER, HE DOES NOT SEEM, WHEN HE CAME LATER IN HIS JUDGMENT TO THE POINT OF ACTUAL DECISION, TO HAVE GIVEN ANY CONSIDERATION AT ALL TO THE THIRD POSSIBLE SOLUTION TO THE CASE CONTEMPLATED IN THOSE OBSERVATIONS. THAT THIRD POSSIBLE SOLUTION WOULD HAVE BEEN TO SAY THAT HE WAS LEFT IN DOUBT AS TO THE PROXIMATE CAUSE OF THE SHIP'S LOSS, AND THAT, IN THOSE CIRCUMSTANCES, THE SHIPOWNERS' ACTIONS SHOULD BE DISMISSED ON THE SIMPLE GROUND THAT THEY HAD NOT DISCHARGED THE BURDEN OF PROOF WHICH LAY UPON THEM.

LORDSHIPS WILL QUARREL. AS REGARDS UNDERWRITERS' WEAR AND TEAR THEORY, IT WAS CONTENDED BY COUNSEL FOR THE SHIPOWNERS THAT BINGHAM 3. HAD RULED IT OUT AS IMPOSSIBLE. THE LANGUAGE USED BY HIM IN DIFFERENT PLACES IS, HOWEVER, AMBIVALENT, AND I THINK THAT IT WOULD BE MORE ACCURATE TO SAY THAT HE REGARDED THE WEAR AND TEAR THEORY NOT AS IMPOSSIBLE, BUT AS ONE IN RESPECT OF WHICH ANY MECHANISM BY WHICH IT COULD HAVE OPERATED WAS IN DOUBT.

LORDS, THE LATE SIR ARTHUR CONAN DOYLE IN HIS BOOK "THE SIGN OF FOUR", DESCRIBES HIS HERO, MR. SHERLOCK HOLMES, AS SAYING TO THE LATTER'S FRIEND, DR. WATSON: "HOW OFTEN HAVE I SAID TO YOU THAT, WHEN YOU HAVE ELIMINATED THE IMPOSSIBLE, WHATEVER REMAINS, HOWEVER IMPROBABLE, MUST BE THE TRUTH?" IT IS, NO DOUBT, ON THE BASIS OF THIS WELL-KNOWN BUT UNJUDICIAL DICTUM THAT BINGHAM J. DECIDED TO ACCEPT THE SHIPOWNERS' SUBMARINE THEORY, EVEN THOUGH HE REGARDED IT, FOR SEVEN COGENT REASONS, AS EXTREMELY IMPROBABLE.

LORDS, I TURN NOW TO THE JUDGMENTS IN THE COURT OF APPEAL [1984] 2 LLOYD'S REP. 555. HAVING REGARD TO THE SINGLE BUT FUNDAMENTAL GROUND ON WHICH I CONSIDER THAT THE JUDGMENT OF BINGHAM J. IS VITIATED, IT SEEMS TO ME, WITH ALL RESPECT TO THE THREE JUDGES IN THE COURT OF APPEAL, THAT THE ONLY PARTS OF THEIR JUDGMENTS WHICH IT IS NECESSARY FOR ME TO EXAMINE ARE THOSE PARTS WHICH DEAL WITH THAT ASPECT OF THE CASE.

LORDS, IT IS NO DOUBT MORE LIKELY THAN NOT THAT A JUDGE WHO DIRECTS HIMSELF CORRECTLY ON A CERTAIN ASPECT OF THE LAW IN THE EARLIER PART OF HIS JUDGMENT WILL APPLY THE RELEVANT PRINCIPLE PROPERLY LATER IN HIS JUDGMENT WHEN THE OCCASION FOR ITS APPLICATION ARISES. FAILURE BY A JUDGE TO ACT IN THIS WAY IS, HOWEVER, NOT UNKNOWN, AND IN A LONG AND COMPLICATED CASE LIKE THE PRESENT ONE IT CAN EASILY HAPPEN.

LORDSHIPS' HOUSE AND IN THE TWO COURTS BELOW.

LORD TEMPLEMAN

LORDS,

LORD BRANDON OF OAKBROOK. FOR THE REASONS GIVEN BY HIM I WOULD ALLOW THIS APPEAL.

LORDS SPIRITUAL AND TEMPORAL IN THE COURT OF PARLIAMENT OF HER MAJESTY THE QUEEN ASSEMBLED, THAT THE SAID ORDER OF HER MAJESTY'S COURT OF APPEAL OF THE 20TH DAY OF JULY 1984 COMPLAINED OF IN THE SAID APPEAL, TOGETHER WITH THE ORDER OF MR. JUSTICE BINGHAM OF THE 30TH DAY OF MARCH 1983, BE, AND THE SAME ARE HEREBY, SET ASIDE: AND IT IS FURTHER ORDERED, THAT THE RESPONDENTS DO PAY OR CAUSE TO BE PAID TO THE SAID APPELLANTS THE COSTS INCURRED BY THEM IN THE COURTS BELOW AND ALSO THE COSTS INCURRED BY THEM IN RESPECT OF THE SAID APPEAL TO THIS HOUSE, THE AMOUNT OF SUCH LAST-MENTIONED COSTS TO BE CERTIFIED BY THE CLERK OF THE PARLIAMENTS IF NOT AGREED BETWEEN THE PARTIES: AND IT IS ALSO FURTHER ORDERED, THAT THE CAUSE BE, AND THE SAME IS HEREBY, REMITTED BACK TO THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE TO DO THEREIN AS SHALL BE JUST AND CONSISTENT WITH THIS JUDGMENT.