KIRIACOULIS LINES SA v (1) COMPAGNIE D’ASSURANCES MARITIME AERIENNES ET TERRESTRES (CAMAT) (2) QBE INTERNATIONAL INSURANCE LIMITED “DEMETRA K” [2002] EWCA Civ 1070

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
COMMERCIAL COURT
The Hon. Mr Justice Aikens
[2002] EWCA Civ 1070Case No Case No: A3/2002/0051Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
KIRIACOULIS LINES SARespondent/Claimant(1) COMPAGNIE D’ASSURANCES MARITIME AERIENNES ET TERRESTRES (CAMAT) (2) QBE INTERNATIONAL INSURANCE LIMITED “DEMETRA K”Appellants/Defendants
Before
Lord Phillips of Worth MatraversLord Justice MayLord Justice LawsMr Stephen Hofmeyr, QC and Mr Gavin Geary (instructed by Elborne Mitchell) for the AppellantsMr Jeffrey Gruder, QC and Mr Philip Edey (instructed by Ince & Co) for the RespondentDate 16 July 2002

Lord Phillips MR : This is the judgment of the Court. Introduction On 16 April 1997 a passenger vessel called “DEMETRA K” (‘the vessel’) caught fire and suffered extensive damage. At the time she was laid up in Piraeus awaiting sale. The Respondents (‘the Owners’) were the owners of the vessel. The Owners claim that they are entitled to be indemnified against the loss that they have suffered under a policy of marine insurance (‘the policy’) underwritten by the two Appellants (‘the Insurers’). The risks against which that policy afforded cover included loss of or damage to the vessel caused by fire. On 26 October 2001 Aikens J. gave summary judgment in favour of the Owners in the sum of $700,000 plus interest. This followed from a judgment given by him on 17 October 2001 in which he decided three preliminary issues in favour of the Owners. The Insurers now appeal against his decision on one of those issues.

[2]It is the Insurers’ case that the fire which damaged the vessel was started deliberately, although not by the Owners. The Owners deny this allegation, but for the purpose of the preliminary issues it has been assumed to be correct. One of the preliminary issues raised the question of whether, on true construction of the policy, the Insurers were liable. Aikens J. held that they were, and they do not challenge this decision. They contend, however, that the wording of the policy did not reflect the prior agreement between those who negotiated the cover on behalf of the parties as to its scope. These were the underwriter Mr Mitchell and the Owners’ placing broker, Mr Lee.[3]The Insurers contend that Mr Mitchell and Mr Lee had agreed that there should be excluded from the cover ‘loss or damage by acts of vandalism and/or sabotage and/or malicious mischief’. They contend that, by error, the wording of the policy did not give effect to this common intention and the policy should be rectified so as to incorporate the exclusion. Aikens J. found that the case for rectification was not made out. It is this finding which forms the subject of this appeal. Background facts[4]The following background facts found by Aikens J. are not in dispute.[5]The vessel was a passenger cruiser, which had been used for cruises around the Mediterranean Sea. Her owners’ Greek insurance brokers were Mediterranean Insurances Limited. They employed London brokers to place the risks in both 1995 and 1996. The London brokers were TL Dallas (London) Limited. The senior broker at Dallas was Mr David Mason. He it was who placed the risks in 1995. He was also involved in the initial negotiations for placing the risks in 1996, but was absent during the final negotiations, when another broker, Mr Paul Lee, took his place. Hull and Machinery cover was provided in 1995 and 1996 by the two Insurers. Their business was written through an underwriting agency called Union Maritime Underwriting Agency Limited. Mr Richard Mitchell was the marine underwriter at Union Maritime in 1995 and 1996. He wrote the Hull and Machinery policies on the vessel in both years.[6]During the winter of 1995/1996 the vessel was laid-up. There was a warranty in the 1995 policy that she should have a night-watchman on board.[7]At the time of the renewal of the Hull and Machinery cover the vessel was no longer operational. She was laid-up at Piraeus awaiting sale. She no longer had a night-watchman on board. She was moored next to a Greek ex-Naval vessel that was being used as a floating museum. The 1995 Policy[8]On 22 September 1995 a Hull and Machinery Policy was written by the Insurers for 12 months, commencing as from 8 September 1995. On 27 September 1995, there was a request from Mediterranean Insurances Limited on behalf of the Owners that the policy should include War Risks and also the risk of loss or damage by acts of vandalism and/or sabotage and/or malicious mischief. Those additional risks were agreed by Mr Mitchell on behalf of the Insurers on 3 October 1995.[9]Before the amendment of 3 October to cover additional risks, the policy provided, insofar as material, as follows:
“Type Hull and Machinery Insurance Form MAR 91 (Slip Policy) Assured Kiriacoulis Line Vessel ‘Demetra K’ Period 12 months at 9 September 1995 Interest Hull, Machinery, Materials, Gear Equipment etc. and everything connected therewith valued in all at US$700,000. Sum insured 100% of value and amounts Trading Greek Waters or held covered at a rate to be agreed. Conditions Institute Time Clauses Hulls, (Clause 280 dated 1/10/83) …….. Free of claims for Partial Loss of or Damage to the Subject Matter insured unless caused by Fire, Lightning, Explosion, Grounding, Stranding or Damage Received in collision with Ship Vessel or object. Including Protection & Indemnity coverage as per Institute Port Risk Clauses to limit US$ 7000,000 any one accident or occurrence….. Warranted owner’s existing skipper onboard vessel at all times when navigating. Warranted premium paid within 45 days of attachment date, and within 30 days of due dates. Warranted vessel is laid up from November 95 to April 96 alongside with permanent nightwatchman. Information She is laid up between November and April (inclusive) with a permanent watchman.”
[10]The Institute Time Clauses Hulls, which were incorporated in the policy provide cover against the following, among other, perils:
“6 PERILS 6.1 This insurance covers loss or damage to the subject-matter insured caused by 6.1.1. perils of the seas rivers lakes or other navigable waters 6.1.2 fire, explosion 6.1.3 violent theft by persons from outside the Vessel 6.1.4 jettison 6.1.5 piracy 6.1.6 breakdown of or accident to nuclear installations or reactors 6.1.7 contacts with aircraft or similar objects, or objects falling therefrom, land conveyance, dock or harbour equipment or installation 6.1.8 earthquake volcanic eruption or lightning. 6.2 This insurance covers loss of or damage to the subject-matter insured caused by 6.2.1 accidents in loading discharging or shifting cargo or fuel 6.2.2 bursting of boilers breakage of shafts or any laden defect in the machinery or hull 6.2.3 negligence of Master Officers Crew or Pilots 6.2.4 negligence of repairs or charterers provided such repairers or charterers are not an Assured, Owners or Managers 6.2.5 barratry of Master Officers or Crew. Provided such loss or damage has not resulted from want of due diligence by the Assured, Owners or Managers.”
[11]The final clauses of the ITC make provision for exclusions. They are introduced by the following statement “The following clauses shall be paramount and shall override anything contained in this insurance inconsistent therewith.”[12]They include the following:
“23 WAR EXCLUSION In no case shall this insurance cover loss damage liability or expense caused by 23.1 war civil war revolution rebellion insurrection, or civil strife arising therefrom, or any hostile act by or against a belligerent power 23.2 capture seizure arrest restraint or detainment (barratry and piracy excepted), and the consequences thereof or any attempt threat 23.3 derelict mines torpedoes bombs or other derelict weapons of war. 25 MALICIOUS ACTS EXCLUSION In no case shall this insurance cover loss damage liability or expense arising from 25.1 the detonation of an explosive 25.2 any weapon of war and caused by any person acting maliciously or from a political motive.”
[13]The amendment of 3 October added the following, among other, clauses:
“It is hereby noted and agreed that with effect from inception coverage hereon is extended to include War and Strikes etc. risks as per the following clauses: Institute War and Strikes Clauses Hulls Time (Clause 281 dated 1/10/83). Including risks of loss or damage by acts of vandalism and/or sabotage and/or malicious mischief.”
We shall refer to this clause as ‘the 3 October addendum’.[14]The Institute War and Strikes Clauses Hulls – Time provide cover against the following perils:
“1.1 war civil war revolution rebellion insurrection, or civil strife arising therefrom, or any hostile act by or against a belligerent power 1.2 capture seizure arrest restraint or detainment, and the consequences thereof or any attempt threat 1.3 derelict mines torpedoes bombs or other derelict weapons of war 1.4 strikes, locked-out workmen, or persons taking part in labour disturbances, riots or civil commotions 1.5 any terrorist or any person acting maliciously or from a political motive 1.6 confiscation or expropriation.”
[15]This cover is, however, subject to exclusions, which include:
“4.2 loss damage liability or expense covered by the institute time clauses-hulls 1/10/83”
The 1996 Policy[16]The 1996 Policy was, so far as material, on the same terms as the 1995 Policy, subject to one important difference. The provisions of the 3 October addendum, which were incorporated in the slip as originally drafted, were struck out. Concurrent causes and exclusions[17]A policy of marine insurance will not normally insure against a casualty regardless of how the casualty occurs. A policy will normally, by reference to standard clauses, provide cover against loss or damage resulting from specified causes and also exclude liability for loss or damage resulting from specified causes. Such causes are of different varieties. Some describe the physical event which directly inflicts the damage, such as fire, explosion or a peril of the seas. Others describe types of human intervention which may bring about the physical event which directly inflicts the damage. Thus negligence of repairers may result in a fire which damages a vessel, so that the damage is caused by two concurrent causes under the ITC. Civil strife may result in a terrorist causing an explosion which damages a ship, thereby combining three concurrent causes in bringing about a casualty.[18]Where a policy provides cover against one of two or more concurrent causes of a casualty, a claim will lie under the policy provided that there is no relevant exclusion. Where, however, a policy contains an express exclusion of cover in respect of loss resulting from a specified cause, underwriters will be under no liability in respect of a loss resulting from that cause, notwithstanding the fact that there may have been a concurrent cause of the loss which falls within the cover. “The effect of an exception is to save the insurer from liability for a loss which but for the exception would be covered. The effect of the cover is not to impose on the insurer liability for something which is within the exception” per Cairns LJ in Wayne Tank Co v Employers Liability Ltd [1974] 1 QB 57 at p.69.[19]We turn to apply these principles to the facts of this case, assuming that the fire on the vessel was started deliberately. Under the 1995 policy, as it was before the October 3 amendment, the loss would have been covered. The damage to the vessel was caused by ‘fire’ and it thus fell within the cover expressly afforded by clause 6.1.2 of the ITC. The fire was caused by a ‘malicious act’, which was a concurrent cause of the damage. This did not affect the cover, for the malicious act exclusion in Clause 25 applied only to damage caused by the detonation of an explosive or any weapon of war.[20]Thus the addition of the October 3 addendum was not necessary in order to cover the loss which occurred. Its effect was to extend the cover by removing the exclusions in Clauses 23 to 26 of the ITC and conferring cover against loss or damage caused by war risks and by vandalism, sabotage and malicious mischief, whether or not such loss or damage would otherwise have fallen within the scope of the cover.[21]It follows that the deletion of the October 3 addendum in the 1996 policy did not remove cover in respect of a fire that was started deliberately, for that cover was not dependent upon the existence of the addendum. Had there been added to the 1996 policy a clause which expressly excluded war risks and risks of loss or damage by acts of vandalism and/or sabotage and/or malicious mischief, cover in respect of damage caused by a fire started maliciously would have been excluded. It is the Insurers’ case that such exclusion had been agreed between Mr Mitchell and Mr Lee and that the policy should be rectified to bring it into accord with that agreement. The requirements for rectification[22]Before turning to consider the evidence relied upon by the Insurers in support of their case for rectification, it is important to identify precisely what it is that they have to establish to make good that case. The Insurers must show(i) that it was the intention of both Mr Mitchell and Mr Lee that the policy should exclude liability for loss or damage caused by vandalism, sabotage or malicious mischief at the time that they drew up the policy and(ii) that they gave outward expression of this common intent in a manner which made it plain, applying an objective test, that this was what they wished to achieve by the policy. In American Airlines v Hope [1974] 2 Lloyds Rep 301 at p.307, Lord Diplock stated, in the context of a claim to rectify a policy of aviation insurance:
“Rectification is a remedy which is available where parties to a contract, intending to reproduce in a more formal document the terms of an agreement upon which they are already ad idem, use in that document words which are inapt to record the true agreement reached between them. The formal document may then be rectified so as to conform with the true agreement which it was intended to reproduce, and enforced in its rectified form.”
[23]The antecedent agreement need not amount to a binding contract but there must be a common accord as to what the parties’ mutual rights and obligations are to be, to which they fail to give effect in their subsequent written contract – see the detailed analysis of the authorities by the Court of Appeal in Joscelyne v Nissen [1970] 2 QB 86.[24]Where the parties have recorded their agreement in a written contract, convincing evidence is necessary to discharge the burden of proving that they made a common mistake in so doing, albeit that the standard of proof is the civil standard. “But as the alleged common intention ex hypothesi contradicts the written instrument, convincing proof is required in order to counteract the cogent evidence of the parties’ intention displayed by the instrument itself.” (Per Brightman LJ in Thomas Bates & Sons Ltd v Wyndham’s (Lingerie) Ltd [1981] 1 WLR 505 at 521, and see per Buckley LJ at p.514) The vital issue[25]It is the Insurers’ case that, before the slip was amended and ‘scratched’ by Mr Mitchell, he and Mr Lee specifically agreed that not merely war risks but all liability for loss or damage caused by vandalism sabotage and malicious mischief should be excluded from the cover that the Insurers were about to write. Owners accept that there was discussion between Mr Mitchell and Mr Lee about the scope of the cover. It is their case, however, that the discussion was by reference to the terms of the draft slip policy that Mr Lee had brought with him to the meeting and that what was agreed was that the 3 October addendum should be excluded, that is to say deleted, from the terms of that policy. Thus it is their case that the slip policy accorded precisely with what had been agreed between Mr Mitchell and Mr Lee. Alternatively, they contend that the evidence does not clearly demonstrate that this was not the case.[26]The starting point of the Insurers’ case is that there was a change of circumstances between 1995 and 1996 which led to a change of attitude on their part to the acceptance of the risk. In 1995 the vessel was still operational, being laid up only in the winter. By 1996 the lay-up had become permanent, pending the sale of the vessel. In 1995 there had been a permanent watchman aboard the vessel when laid up. When the risk was placed in 1996 the security position was not clear. All of these matters increased the risk of vandalism, sabotage and malicious mischief. Furthermore the Insurers did not normally write port risks – it had been exceptional in 1995 to cover the vessel during lay up in the winter.[27]It was the practice and policy of the Insurers to reinsure war and vandalism/sabotage/malicious damage risks. In 1995 they had a facility to do so and reinsured these risks. They had no such facility in 1996.[28]It is the Insurers’ case that, for all these reasons, they were not merely unwilling to write the additional risks that had been imposed in 1995 by the 3 October addendum, they were only prepared to write the cover if not merely war risks but all risks from vandalism, sabotage or malicious damage were excluded from the cover that would otherwise be afforded under the standard ITC. It is their case that such exclusion was expressly agreed between Mr Mitchell and Mr Lee and that these two fell into error by failing to record this agreement in the written policy. The approach of the Judge[29]In summarising the issue as to whether there was an antecedent agreement between Mr Lee and Mr Mitchell that conflicted with the terms of the policy, Aikens J. said (paragraph 35) “Mr Geary [counsel for Insurers] accepted, ultimately, that upon analysis, there are only two possible conclusions as to the “common intention” of the parties at the meeting on 9 September. The first was, that the risks deleted, should not be covered by the 1996 Hull and Machinery Policy. The second was, that there should be a specific policy exclusion in relation to the risks that were struck-out. He submitted that it was clear that there was a common continuing intention of the second kind. He submitted that this conclusion can be drawn in particular from the following.”[30]After considering the evidence Aikens J concluded (paragraphs 43,44):
“…I am not satisfied that Mr Lee and Mr Mitchell had the common continuing intention to add an exclusion clause to the slip. For good measure I conclude that there was no outward expression of such an accord, even if I had found that there was a common continuing intention.”
[31]Mr Hofmeyr QC, who led for the Insurers before us, criticised the approach of the Judge. He submitted that the Judge erroneously proceeded on the basis that rectification could only be ordered if there was an antecedent agreement to insert an exclusion clause into the policy. This was too rigid an approach. The Judge should first have found ‘the gist of the words of the oral agreement’ concluded between Mr Mitchell and Mr Lee, then construed that oral agreement and finally considered whether the subsequent slip policy did or did not accord with the oral agreement.[32]We agree with Mr Hofmeyr that the Judge appears to have proceeded on the premise that the discussion between Mr Lee and Mr Mitchell focussed on the specific clauses that should be included in the slip policy and that he does not consider whether there was discussion in more general terms as to the extent of the cover to be provided by the Insurers. Equally, however, Mr Hofmeyr’s submissions assume that there was a concluded oral agreement between Mr Lee and Mr Mitchell as to the scope of cover in general terms rather than by express reference to the clauses that should or should not be incorporated into the slip policy. While it seems to us possible, indeed we would say inherently probable, that discussion between Mr Lee and Mr Mitchell would have focussed on the terms of the slip policy, one cannot preclude the possibility that there was an anterior oral agreement as to the terms of the cover in more general terms. Our enquiry must answer the question of which is the true position. Contemporary evidence[33]We are concerned with considering whether, and in what terms, an oral agreement was concluded over 5 years ago. In approaching this task, particular weight must be attached to any contemporary, or near contemporary, evidence of what was said. Mr Lee went to place the cover with Mr Mitchell on 9 September 1996. He took with him a draft slip which had on it all the terms of the 1995 policy, including the 3 October addendum. On the same day, after his meeting with Mr Mitchell, he sent a facsimile message to Mediterranean Insurances. This stated that the Insurers had agreed to renew cover on the vessel while laid up, but wanted clarification on the position of the watchman. The message continued:
“Uwr. agreed to renew even though he does not normally write port risks but Uwr. did not want to include war risks. This is because he does not write war and would have to re-insure out. With this placing being for a vessel ‘for sale’ this would make his workings very messy if risk cancelled due to vessel sold. Accordingly we will seek separate war placing (Pls. confirm if war required due vessel laid-up.)”
[34]Mediterranean Insurances replied on the following day that no war risks were needed but that ‘malicious acts or terrorist acts should be included’. Mr Lee responded on 11 September that the Insurers were ‘unable to include damage by vandalism, sabotage or malicious mischief’.[35]In the event Mr Lee placed separate war risk cover under a policy that included cover against loss or damage caused by acts of vandalism and/or sabotage and/or malicious mischief. This cover was, however, subject to the Institute War and Strikes Clauses, Hulls-Time (1/10/83), clause 4.2 of which excludes cover afforded by ITC.[36]On 19 September Mr Lee sent to Mediterranean Insurances a cover note which precisely reproduced the terms of the slip policy.[37]After the casualty, Mr Lee produced a number of memoranda recording what had occurred at his meeting with Mr Mitchell. The only one to have survived, and it is not apparently the most detailed, is dated 30/4/98 and records:
“Order was received to renew and I was asked to obtain ‘Union Maritime’s’ agreement. On presenting slip to underwriter, Richard Mitchell, Uwr stated that although war coverage was included in the previous year’s placing Uwr. was unable to include this year due to their 1) R/I did not cover war and 2) they had to buy separate protection last yr. Accordingly I took the wording from the slip (applicable to war) and obtained terms from our war facility Uwrs. I informed Union Maritime Uwr we had placed war coverage elsewhere and accordingly the Uwr deleted (crossed out) the applicable conditions.”
[38]We make the following observations on these documents. They are entirely consistent with the Owners’ case that the discussion between Mr Lee and Mr Mitchell related solely to the 3 October addendum and that what they agreed was that this should be deleted from the policy and placed with other insurers. The reason given for this was that the Insurers faced problems in relation to reinsuring war risks. There is no suggestion that, because of a change in the nature of the risk, the Insurers were no longer prepared to provide cover on terms of the ITC, insofar as these included an element of exposure to loss or damage caused by malicious acts.[39]There is no contemporary evidence from the Insurers in relation to the meeting on 9 September 1996. The first relevant document from them post-dates the casualty. This is a message faxed to T.L.Dallas on 14 January 1998, which stated:
“As we believe you are aware, it is not usually our policy to insure port risks. The 1995 slip contained a warranty ‘Warranted vessel is laid up from November 1995 to April 1996 alongside with permanent night watchman’. In view of this warranty we were prepared to include in the cover ‘including risk of loss or damage by acts of vandalism and/or sabotage and/or malicious mischief’ for that year. When you presented the slip for 1996 it contained no warranty with regard to a night watchman being on board even though the vessel was to be permanently laid up. We advised you that we were not interested in insuring the vessel for 1996 but after some discussion with you and only provided it was agreed that we would not cover the vessel for, inter alia, risk of loss or damage from acts of vandalism and/or sabotage and/or malicious mischief we ultimately agreed to renew the policy.”
[40]We observe that this message is ambiguous. The phrase ‘we would not cover’ is capable of indicating a refusal to extend the cover to embrace the risks in question, or a requirement that the cover should be subject to an exclusion in respect of such risks. We also observe that the message makes no mention of the problem with reinsuring war risks.[41]We find that the contemporary, or more nearly contemporary evidence, while in no way conclusive, supports the Owners’ case. Witness statements[42]The evidence of both Mr Lee and Mr Mitchell was adduced by the Insurers. Mr Lee’s witness statement was dated 20 December 2000 and that of Mr Mitchell 29 December 2000. No challenge was made of the honesty of either witness and the Judge expressly found that each was an honest witness. Nor was the accuracy of either witness statement directly challenged in cross-examination. Despite this, any court must necessarily have reservations about the reliability of statements purporting to give details of a conversation held about 5 years earlier. Furthermore, witness statements today are not simply taken down verbatim in the witness’ own words. They are prepared with the assistance of lawyers which tends to de-personalise the statement and make it more difficult for the court to assess its weight. We believe that it would have been likely to assist the Judge’s task had he required each witness to give his evidence in chief in relation to the vital meeting orally in his own words.[43]The following are the material paragraphs of Mr Lee’s statement:
“5. I remember that I was asked to finalise this business because the usual placing brokers were not available in the office that week. Accordingly, on their behalf I took the slip into Richard Mitchell of Union Maritime on 9 September 1996 in order to arrange cover. I have seen the hull and machinery insurance slip for the period `12 months at 8 September 1996 (“the hull slip”) and confirm that the hull slip is a true copy of the slip that I presented to Richard Mitchell. 6. I recall that Richard Mitchell advised he was concerned with the watch keeping arrangements since the vessel would not be operating during the period of cover. Richard Mitchell and I discussed the watch arrangements for the lay up period and I remember that she was to be moored near to a naval vessel. I note that the information section of the hull slip includes a handwritten note in confirmation of this arrangement, which states: ‘ moored next to naval vessel – 2 full time watchmen [onboard]’ . 7. Richard Mitchell also advised that Union Maritime had a problem with the slip as his reinsurers would not allow Union Maritime to write war risks. I saw no problem with this as I had a book of war risk business which I placed mainly on behalf of USA clients. I considered that I could quite easily place the war risks for the DEMETRA K under this facility. The terms upon which I placed cover under this facility also included cover in respect of loss or damage by acts of vandalism and/or sabotage and/or malicious mischief and thus both exclusions from the hull policy, requested by Richard Mitchell, could be covered under this facility. 8. I advised Richard Mitchell that I agreed to the exclusion of war risks, including malicious mischief, from the hull policy. Richard Mitchell then removed the war risks cover from the slip by striking through the relevant conditions with a pencil. I confirm that it was Richard Mitchell’s stated intention that none of the conditions struck out should be covered under the hull policy. 9. I then prepared a draft war slip which I presented to Cotesworth, the leader on my war risks facility, in order that he could assess the cover rate. I believe I would probably have taken this in on 10 September 1996, the day following my meeting with Richard Mitchell. 10. I have seen a copy of the war risks slip for the period 12 months at 8 September 1996 (“the war slip”), which I would have had typewritten up in the office of Dallas after having obtained from underwriters the rate to be inserted in the slip. This was signed and dated by Cotesworth on 11 September 1996. I recall that the war slip used virtually identical wording as those removed from the hull slip and I remember this was because it was my intention that those risks should be transferred to the war policy.”
[44]We observe that this statement suggests that the discussion between Mr Lee and Mr Mitchell focussed on the terms of the slip. The first sentence of paragraph 8, while ambiguous, uses the word ‘exclusion’ in a context which more naturally suggests removal from the policy document. The second sentence of that paragraph, while ambiguous, could well be intended to mean that Mr Mitchell stated that the conditions that were being struck out should constitute exclusions from the policy. The form of the sentence is, however, one that robs it of clarity.[45]Overall, we consider that Mr Lee’s witness statement supports the conclusion that the discussion between Mr Lee and Mr Mitchell related to the clauses that should, and should not be incorporated in the slip policy. Certainly it does not clearly spell out an antecedent agreement that there should be excluded from the cover afforded by the ITC cover in respect of loss or damage caused by vandalism, sabotage or malicious mischief.[46]The material part of Mr Mitchell’s statement reads as follows: “When the renewal slip was brought into Union Maritime’s office by Paul Lee of Dallas I reiterated my concerns regarding the lay-up arrangements and advised that I would only cover the hull whilst laid up if loss or damage by acts of vandalism and/or sabotage and/or malicious damage as well as war risks were all specifically excluded. Paul Lee agreed to exclude these risks and I granted cover on this basis. I crossed out the conditions relating to the inclusion of war and strikes etc risks and relating to risk of loss or damage by acts of vandalism and/or sabotage and/or malicious mischief. Paul Lee agreed to the striking through since this accorded with our oral agreement to exclude such risks. Accordingly, whilst I am now aware that the slip still included the standard Institute Clauses in full, it was my specific intention to exclude risks of loss or damage by acts of vandalism and/or sabotage and/or malicious mischief. I have no doubt that at the time of agreeing the policy both myself and Paul Lee understood and agreed that such risks were specifically excluded from the policy. In fact I recall stressing to Paul Lee the need to obtain cover for the excluded risks on a war risk policy elsewhere. I cannot recall the first occasion when David Mason subsequently confirmed that Dallas had taken out a war risk policy elsewhere, but I can recall that Dallas advised me that such a policy in fact existed. I have now seen a copy of that policy and note that the slip includes cover for risks of loss or damage by acts or vandalism and/or sabotage and/or malicious mischief. This confirms that Dallas did indeed place cover for this risk elsewhere, as I had suggested.[47]We observe that, but for the repeated statement that it was agreed that war risks and risks of loss or damage by acts of vandalism and/or sabotage and/or malicious damage should be specifically excluded, this statement would be ambiguous. The addition of the adverb does, however, undoubtedly carry the suggestion that it was agreed that the policy should be subject to an express exclusion of the risks in question. We view with scepticism, however, the idea that Mr Mitchell could have recalled using the word ‘specifically’. Nor does the use of that word accord with his observation that striking through the 3 October addendum ‘accorded with our oral agreement to exclude such risks’. Overall, however, his statement supports the Insurers’ case. The oral evidence[48]Aikens J. gave seven reasons for finding that the Insurers’ case as to what was orally agreed on 9 September 1996 was not made out by the oral evidence of Mr Lee and Mr Mitchell. Mr Hofmeyr criticised some of these reasons as involving a ‘legalistic’ approach which it was unrealistic to apply to commercial men. We agree with him that little significance can be attached to the fact that Mr Lee and Mr Mitchell gave no thought to cover against barratry – a peril of little moment in relation to an unmanned vessel – and that the existence – on the Insurers’ case - of a possible gap in the cover afforded by the ITC hull and machinery policy and the war risks policy, is not a matter which would necessarily have been appreciated by them. However, the important reason for the Judge’s decision was the one that he put at the forefront:
“First, there is the evidence of Mr Lee and Mr Mitchell about what was said at the meeting on 9 September 1996. There was no hint of a common continuing intention to add a specific policy exclusion. It is true that both witnesses talked about, “Excluding” certain risks. But the word “Exclude”, in the context of the draft slip presented by Mr Lee to Mr Mitchell, was and is ambiguous. It can mean that the particular risks identified will not be included. Alternatively, it can mean that the particular risks will be specifically excluded from the scope of the cover that would otherwise remain after the deletions have been made. In my judgment, based on the evidence I have heard, the discussions of Mr Lee and Mr Mitchell proceeded on the basis of the first of these two meanings. In my judgment, it did not occur to them that what was needed was a positive, specific exclusion clause that limited the scope of the remaining cover of the H&M policy, in particular, the perils covered by Clause 6.”
[49]Mr Hofmeyr attacked this finding. He submitted that both witnesses made it quite plain in their oral evidence that they had agreed that all risks of loss or damage caused by vandalism, sabotage or malicious mischief would be excluded from the cover. For the Owners, Mr Gruder QC submitted that the Judge’s conclusion as to the effect of the oral evidence was correct. References by each witness to ‘exclusion’ of risks were, in the context of a draft slip policy that expressly included those risks, ambiguous. It was impossible to spell out any clear accord that went beyond agreement that the Insurers would not continue to write the risks covered by the 3 October addendum, which would be deleted from the policy.[50]The comments that we have made about the unreliability of witness statements in relation to an oral conversation made 5 years after the event apply also to oral testimony. The Judge’s assessment was made a day after he finished hearing the evidence with the benefit of the impression made by the witnesses, but without the benefit of a transcript of their evidence. We are in the reverse position, but are not persuaded that this gives us an advantage. Counsel for each of the parties has been able to cherry-pick passages of the evidence that supports his case. We will content ourselves with a few examples. Evidence favouring the Owners[51]Mr Lee:
“Q. Did you ever discuss with Mr Mitchell on 9th the position in relation to a deliberately started fire? A. No. Q. All you discussed was that he wanted to delete the clauses which appear on page 15 and which you put a line through? A. Yes …. Q. You were asked by Mr Edey, and suggested that there was a difference between, when talking about risks included in cover, there is a difference between things which are not included and are excluded. Could you explain to us that difference? A. It is, I have to say, a grey area: if something is not mentioned, whether that deems it to be included. I have always worked on the basis that if it is not mentioned then it is not covered and therefore it is excluded. …. Q. What was agreed was that although war cover was included in the previous year it was not to be included this year? A. Yes. Q. That accurately reflects what you understand the agreement with Mr Mitchell to have been? A. Uh huh.”
[52]Mr Mitchell:
“A. Well, it had been put in, added in, and I thought there is a reason for adding in vandalism and all malicious damage, and I don’t want to find myself paying that claim. Q. So what you thought was that you did not want to find yourself paying in respect of those risks which had been added by this endorsement? A. Yes. …. A. There was no way that we would be prepared to present a war claim to our hull excess loss underwriters. Q. So you were worried that if they were not covered elsewhere then you might end up in that situation? A. We could end up in that situation. Q. Did you discuss that worry with Mr Lee on 9th? A. I am not sure whether I discussed it with Mr Lee on 9th. I just told Mr Lee on 9th that this cover from Union Maritime would only be if those perils were struck out. By that I intended “excluded”.”
[53]After detailed consideration in the course of cross-examination Mr Mitchell agreed that the cover note, which reproduced the wording of the slip, reflected his discussion and his agreement with Mr Lee. In favour of the Insurers[54]Mr Lee:
“Q. What we are asking here is, is that not all he attempted: not to write these risks; not to provide the cover set out here. That is what he wanted? A. Yes, the intention was to exclude these risks here as set out. Q. Let me be sure that I have understood you: I say that his intention was not to write these risks, not to provide the cover provided by these four paragraphs in 1996; do you agree with that? A. I am -- you are saying it is different for me to answer that by saying that his intention was to exclude those coverages? Q. You have understood exactly the difference. A. The intention was to exclude them. It has to be. …. Q. What was your agreement with Mr Mitchell in relation to the risks which are struck out at the top of page 11? A. The intention was to exclude them. Q. Was that a discussion you had? A. Yes, yes”
Mr Mitchell:
“Q. Did you consider that you were excluding risks which would normally be covered by the ITC word? A. I considered – you mean by striking this out. Q. Exactly? A. That I was excluding vandalism and malicious damage. Q. Did you express that intention to Mr Lee? A. Yes. …. Q. So what was your agreement with Mr Lee? A. My agreement with Mr Lee was that those risks would be placed separately. Q. What was the effect upon your cover given by the 1996 policy by the agreement you made with Mr Lee? A. What did I think was the effect on him? Q. Yes. A. I thought the effect was that there could be no cover on the hull policy of vandalism and malicious damage, war risks.”
Conclusions[55]We have found the task of analysing the evidence difficult, and this reflects the paucity of contemporary evidence and the passage of time before statements were taken and oral evidence given. Mr Lee and Mr Mitchell plainly agreed that the 3 October addendum should be deleted from the slip policy. We do not believe that either of them gave precise consideration to the effect of this deletion. It may be that Mr Mitchell assumed that it would relieve the Insurers from all risk arising from vandalism, sabotage and malicious mischief. It may be that Mr Lee had a similar belief. If they both shared that belief this would not suffice to establish a claim for rectification of the policy. To establish such a claim the Insurers have to prove convincingly that both Mr Lee and Mr Mitchell orally agreed that the cover to be granted would exclude any loss flowing from the perils in question. The evidence that we have reviewed does not constitute such proof. On balance we are inclined to think all that was agreed was that the cover added by the 3 October addendum would no longer be provided and that this clause would be deleted from the policy. At all events, the Insurers have failed to make out a case that there was an antecedent agreement that conflicted with the terms of the slip policy.[56]For these reasons, we have concluded that Aikens J reached the correct decision and that this appeal must be dismissed.

Order

(Order does not form part of the approved judgment)

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