Garnat Trading & Shipping (Singapore) PTE Ltd & Anor v Baominh Insurance Corporation [2011] EWCA Civ 773

Case No A3/2010/2706

[2011] EWCA Civ 773

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

THE HONOURABLE MR JUSTICE CHRISTOPHER CLARKE

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/07/2011

Before

THE RIGHT HONOURABLE LORD JUSTICE MUMMERY

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE

THE RIGHT HONOURABLE LORD JUSTICE AIKENS

Between

GARNAT TRADING & SHIPPING (Singapore) PTE LTD & ANRRespondent

BAOMINH INSURANCE CORPORATIONAppellant

Mr Stuart Isaacs QC (instructed by Taylor Wessing LLP) for Appellant

Mr Michael Ashcroft QC (instructed by Thomas Cooper) for Respondent

Hearing Hearing dates : 10 th, 11 th, 12 th& 13 th May 2011

Judgment

Judgment of the court given by Lord Justice Longmore and Lord Justice Aikens:

Introduction

[1]On 23 June 2006 the respondents’ floating dock (“the Dock”) began a voyage under tow from Vladivostock to Vung Tau in Vietnam. Both an Assessment of Strength, Stability and Unsinkability (“the Assessment”), which was part of the Towage Plan, prepared for the towage to Vietnam, and Instructions, given to Captain Parshintsev, the Commander of the towage expedition, stated that it was possible to allow the dock for ocean towing on the basis that the maximum permissible wave scale was “5 at a wave height h3% = 2.0 … 3.5 metres”. In simpler terms towage was permissible only in conditions up to sea force 5 with a maximum permissible wave height of 3.5 metres. A number of pontoons (one of them containing the workshop) were installed on the main deck and lashed to various points on the Dock, which set sail for Vietnam under tow by two tugs.

[2]On 9 July 2006 the dock under tow had a close encounter with typhoon “Ewiniar” meeting conditions of sea force 6 and wave heights of more than 3.5 metres. No significant damage to the dock was suffered. But on 12July tropical storm “Bilis” unexpectedly changed course from WNW to NW and the dock was caught by near direct hits with waves of up to 10 metres in height. The steel wire ropes lashing the forward-most pontoon (“the bow pontoon”) broke and the bow pontoon became free moving. Large quantities of seawater came over the Dock. The bow pontoon, now free to move around the main deck, collided with and holed various ballast tanks and may well have holed the main deck. Both the port and starboard buoyancy chambers were also holed and seawater entered the ballast compartments uncontrollably. The ballast pumps were unable to cope with these incursions of seawater. As more and more water came in, the Dock had to be abandoned at 0300 hours on 14th July. Most of the crew were picked up by one of the two tugs towing the dock but Captain Oleg Rada, the Master of the Dock on his own life raft which later foundered on rocks, was missing for many hours before he was fortunately picked up by a Chinese vessel. He had rescued the Dock’s logbook but it was lost at the time of the foundering of the life raft.

[3]The respondents are Garnat Trading and Shipping who bought the floating dock from its original owners and the Vietnamese company Vung Tau Ship-building, who purchased the dock from Garnat. They (“the Owners”) made a claim on their Vietnamese insurers, Baominh Insurance Corporation (“the insurers”), which was rejected on the grounds(1) that the Owners had not disclosed the fact that towage was permissible only in conditions up to sea force 5 and with a maximum permissible wave height of 3.5 metres and

(2) that the Owners were in breach of the warranty of seaworthiness in relation to the Dock implied into the contract of insurance by s.39 of the Marine Insurance Act 1906. Christopher Clarke J held, inter alia, ([2011] 1 AER Comm 573) that the permissible towage conditions were, in fact, disclosed and that the Dock was, in fact, seaworthy at the commencement of the voyage. With the leave of the judge there is now an appeal to this court.

[4]This is, therefore, primarily an appeal on fact to which all the well-known constraints contained in e.g. Biogen v Medeva

[1997] RPC 1

, 45 and Assicurazioni Generali v Arab Insurance

[2003] 1 WLR 577

must apply. There is the further constraint that the appellant insurers seek to prove to the necessary high standard that at least one fax and one e-mail purportedly sent by the Owners to the insurers as part of the pre-contract disclosure are fabrications of a substantially later date brought into existence in order to support the claim. In the case of the fax it is suggested that it was created and deliberately sent only after the insurers’ solicitors had informed the Owners’ solicitors that one of the insurers’ fax numbers was a number in respect of which no record was kept of incoming faxes. It was also said that two other documents were later fabrications by the Owners in order to assist their case against insurers in the current litigation. The first was a document called “Specifications of the materials for the fore pontoon” dated 7 June 2006 which concerned the lashing arrangements for the bow pontoon. The second was a “Letter of Explanation” dated 18 August 2006, prepared by Captain Parshintsev who was the master of one of the tugs called “TOPAZ” which was said to have been fabricated after 30 October 2009 to assist the Owners in the current litigation. The judge acquitted the Owners of any such dishonesty.

[5]For understandable reasons the judge dealt with the allegations of non-disclosure before he dealt with the allegations of unseaworthiness. It is, after all, entirely logical to decide whether a contract exists before deciding whether it has been discharged by breach of warranty. This sensible method of dealing with the case led Mr Stuart Isaacs QC appearing for the insurers to attack the judgment on the basis that the judge had first decided that Mr Mykola Sashkin, the principal director of Garnat, who was the chief witness for the Owners on the issue of non-disclosure, was an honest witness and that he thereafter approached the whole case by being adverse to the insurers, without properly weighing up the probabilities of the case. If he had taken the whole evidence into account he should have decided that Mr Alexander Kalmykov, the superintendent who supervised the repair and conversion work of the dock, and the Dock master Captain Rada, gave false evidence on the issue of unseaworthiness and the fact that the Owners had put them forward as witnesses of truth should have resulted in a conclusion that Mr Sashkin had also given false evidence on the issue of non-disclosure. No doubt partly for this reason Mr Isaacs decided to make his oral submissions on unseaworthiness before his submissions on non-disclosure.

[6]There is no evidence that the judge decided the case in the compartmentalised way which insurers suggest and we decline to decide that he did. In any event, even if one were to conclude that the witnesses on unseaworthiness were lying, no judge could decide that for that reason another witness on non-disclosure was also lying. Any judge must, having heard the evidence consider the case as a whole and decide in respect of each material witness whether that witness has given reliable evidence or not and come to his conclusions accordingly. It would be as absurd to decide that, because Mr Sashkin told the truth about non-disclosure, for that reason Mr Kalmykov and Captain Rada were telling the truth on unseaworthiness as it would be to decide that because Mr Kalmykov and Captain Rada were liars, so must Mr Sashkin be. We are satisfied that the judge fell into no such error as Mr Isaacs suggested.

[7]Nevertheless, for the avoidance of any doubt, we make it clear that we have not only considered the evidence of the claimants’ material witnesses separately in relation to the topics which they addressed in their evidence but also in the context of the case as a whole and, so doing, have come to the conclusion for reasons which we shall give that the judge was entitled to treat each of them as essentially reliable and to uphold the claim.

[8]One obviously has to start somewhere but the starting point cannot matter in the end, particularly in an appellate court which can see how the case as a whole developed at trial. We think, however, that the order in which the judge dealt with the case (and indeed the order adopted by Mr Isaacs’ own skeleton argument and grounds of appeal) is the logical order and we will deal first with non-disclosure before moving on to unseaworthiness.

[9]In doing so we cannot forbear from remarking that we do at least deal with the merits of the case first since, if there has not been a fair presentation of the risk, any underwriter should be entitled to avoid the contract of insurance. The allegations of unseaworthiness have no merit unless they are coupled with an assertion that such unseaworthiness caused the loss. It is a major defect of English law of insurance that, if underwriters can prove a breach of warranty (however minor), they are entitled to treat the contract as being automatically discharged whether or not such breach of warranty had anything to do with the loss. As Mr Isaacs frequently observed in the course of his submissions “causation has nothing to do with the case”.

[10]We turn first therefore to non-disclosure.

Non-Disclosure

[11]The critical findings of the judge are contained in the following paragraphs of the judgment:- “139 That which was disclosed to Baominh included the following a) The existence of the Towage Plan. This was apparent from the Towage Contract and draft MOA provided on 16th May 2006. It was discussed and its nature explained at the meeting of 18th May. It was the subject of a warranty in all of Baominh’s drafts of the policy (save for its temporary accidental omission for 80 minutes on 9th June) until it was removed at the last moment on the basis that the Plan had been approved. b) The title pages of the list of design documents, of the Assessment, the Explanatory Note, and of both sets of Instructions, together with the last page of the Assessment and the seventh page of the Explanatory Note, all of which were handed over by Mr Sashkin on 19th May. The last page of the Assessment contained its conclusion and the specific details about wave height limitations. The seventh page of the Explanatory Note also contained these details. c) Ms Mai’s presentation of Vung Tau’s version of the Towage Plan at the meeting of 31st May referring to the Assessment, the Explanatory Note, and the Instruction, and explaining what they were in Vietnamese. Mr Sashkin and Mr Hai offered to provide any translation required. d) The documents enclosed with the fax of 10th June which included the Instructions. Mr Dang took copies of those instructions on 12th June and asked for a Vietnamese translation which Mr Hai said he would provide and which he did provide on 12th June in an e-mail of that date. The Instructions to the Tugboat Master, which are only 2 or 2½ pages long set out (see para 3.2) the wave height limitation. The instructions to the Dock Master referred (see para 3.4) to the Assessment under the description “Calculation of strength and stability during towage”. 140. The disclosure made constituted, in my judgment, a fair presentation of the risk, and included the wave height limit, upon the alleged non-disclosure of which Baominh relies.” It is these findings of fact which the insurers wish to overturn. This was apparent from the Towage Contract and draft MOA provided on 16th May 2006. It was discussed and its nature explained at the meeting of 18th May. It was the subject of a warranty in all of Baominh’s drafts of the policy (save for its temporary accidental omission for 80 minutes on 9th June) until it was removed at the last moment on the basis that the Plan had been approved. The last page of the Assessment contained its conclusion and the specific details about wave height limitations. The seventh page of the Explanatory Note also contained these details. The Instructions to the Tugboat Master, which are only 2 or 2½ pages long set out (see para 3.2) the wave height limitation. The instructions to the Dock Master referred (see para 3.4) to the Assessment under the description “Calculation of strength and stability during towage”.

[12]Before embarking on the detail of the challenge to the judge’s findings of fact it is necessary to say a little more about the nature of the documents which the judge found were disclosed to insurers. We have already mentioned the Assessment and the Instructions but we have said nothing about the document referred to as the Explanatory Note.

The Assessment; 1760-901-307

[13]The Assessment was the final part of the Towage Plan, produced by the naval architects Dalzavod who had been asked by the original dock owners to prepare plans and alterations of the dock for towage. It contained detailed calculations of strength and stability of the dock during tow. Paragraph 4 was headed “Assessment of Maximum Wave Disturbance at Conditions Ensuring Strength” and stated among other things:- “The design maximum wave height during towage hd =5.58 m, which corresponds to scale 6 wave height of 3% probability.” The final part was headed “Conclusion” and included this:- “6.1.3. In accordance with data in the present document, with consideration for the design ultimate bending moment, the maximum scale for waves is 6 at a wave height of h 3%=5.77 m. Considering the practice of towing such docks, the designer considers it possible to allow dock PD-7 (pier 1760) for oceanic tugging, limiting the maximum permissible wave scale to: 5 at a wave height of h3%= 2.0 … 3.5 m.” and “6.2.2. In conformity with design documentation, the seaworthiness of the dock in sea waves on condition of lack of slamming is ensured in the range dtow = 2.4 …. 3.75 m. The present tugging is carried out with a draught of dtow = 2.79 m which ensures fulfilment of the necessary requirements.”

The Explanatory Note

[14]This, also a Dalzavod document, was attached to the Towage Plan. Paragraph 3 was entitled “Towage Design Issues” and provided among others things:- “3.1.3. Towing of the dock according to its navigable qualities is permitted to be carried out where sea disturbance is no higher than 5 points. 3.2.3. Considering the towing practice of similar docks, the designer considers it possible to permit the dock (pr. 1760) for oceanic towing, limiting the maximum wave disturbance to 5 with a wave height of h3% =2.0 … 3.5 m. To decrease the bend moment at calm water, the dock must be ballasted in accordance with 1760-901-307RR.”

Instructions to the Masters of the Tugs

[15]This was a 3 page document, paragraph 3 of which was headed “Towage” and provided in 3.2:- “3.2 According to stability calculations in Regulations 1760-901-307, allowed bending moment must be taken into account, allowed marine wave grade is 6 with the wave height h3% =5.77 m. In consideration of the dock of the same type in practice, floating dock N7 could be towed with the allowed wave grade is 5 (sic) when the wave height is h3% - 2.0-3.5 m.”

Instructions to the Master of the Dock

[16]This was a 5 page document which made no express reference to sea force or wave height (which were, of course, primarily matters for the tug-masters) but did contain at least one reference (in para 2.4) to the Assessment (1760-901-307).

The first three meetings

[17]In para 139 the judge pointed out that, although the information contained in these 4 relevant documents in relation to the force of the sea and wave height was disclosed by 19 May, it was not explained to the insurers until the meeting of 31 May. That explanation may be said to have been necessary because the documents themselves were in Russian and insurers’ representatives Mr Nguyen van Minh, the general manager of the marine insurance division and Mr Ho Hai Dang, the actual marine specialist and underwriter responsible for the insurance, were not familiar with the Russian language. The insurers could not remember the meetings of 16, 18 and 19May (indeed Mr Dang said that the third meeting did not even occur) but the judge was satisfied that they all occurred and we see no reason to doubt that they did and, in particular, that the title page of the Assessment, the Explanatory Note and Instructions were handed over as set out in paras 55-68 of the judgment. As the judge pointed out (para 50), Mr Dang had no written records of meetings or discussions and was disinclined to make any. On 18 May, before the first quotation was provided to Mr Sashkin by e-mail of 14.47 hours, Mr Minh had explained that further communication would be with Mr Dang who would be primarily responsible for the insurance (para 60). Mr Minh played virtually no part in the oral negotiations thereafter. After the first quotation had been provided, Mr Sashkin said that there were aspects of it which were not right and it was then that the meeting of 18th May was arranged after which the second quotation was produced with earlier warranties replaced by “Warranted Dock classed with and remain in the register of Global Marine Bureau Inc. and all rules and requirements of the classification society complied with. Warranted the towage plan must be inspected and approved by Global Marine Inc. or equivalence.” Warranted the towage plan must be inspected and approved by Global Marine Inc. or equivalence.”

[18]If the matter had rested there, with the relevant information disclosed in a language with which insurers were unfamiliar, it would no doubt have been a question whether there had been a fair presentation of the risk. In this connection the judge’s findings (that Mr Sashkin had offered to provide translations and that insurers said they would ask for such translation later if they needed to do so) might be critical. The real question, however, is whether further disclosure was made as set out at sub-paras 139(c) and (d) of the judgment or whether, as insurers say, there was no further disclosure.

The meeting of 31 May 2006

[19]This is an important meeting because the Owners say Ms Mai of Vung Tau, in the presence of Mr Sashkin of Garnat and Mr Hai of Vung Tau, explained the Towage Plan to Mr Dang in Vietnamese and that this constituted part of the relevant disclosure. Mr Dang appeared to accept that there was a meeting at or around this date but maintained that the only matters discussed were in relation to the insurance of the crew of the Dock and the tow who, of course, needed to be insured. He said that there was no explanation of the Towage Plan.

[20]The Owners’ evidence about this meeting was given orally by Mr Sashkin who speaks Russian but not Vietnamese (he communicated with Mr Dang in English) and Mr Hai, by video link from Vietnam. Mr Hai speaks some Russian whereas Ms Mai was said to be fluent in both Russian and Vietnamese which was the reason why she was asked to come to the meeting as (effectively) interpreter. Ms Mai had, before the trial, retired from Vung Tau and gone to Australia. She gave no evidence whether orally or in statement form.

[21]Mr Isaacs was very critical of the Owners’ decision not to adduce any evidence from Ms Mai whose evidence was said to be vital in relation not only leave this meeting but also to the sending of a later disputed e-mail of 12 June 2006. The judge said merely (para 83) that the evidence about this meeting was not as full as it could have been but that he was not prepared to say that evidence of Mr Sashkin and Mr Hai was largely invention. Mr Isaacs submitted that this was a very serious understatement of the position when both this meeting and the later e-mail were known to be key matters from the date of service of the amended reply and defence to counterclaim on 19December 2008.

[22]These sorts of considerations are very much a matter for the trial judge and it would be impossible for this court to hold that Mr Sashkin’s and Mr Hai’s evidence was an invention on this ground when the judge did not. Like the judge we have to evaluate the evidence which was given (of course against the background that more evidence could have been given) and come to our conclusions accordingly, giving proper weight to the judge who saw and heard the oral evidence of both Mr Sashkin and Mr Hai (albeit in the latter case only on the video link).

[23]It is also worth pointing out that Mr Isaacs’ reference to the amended reply and defence to counterclaim is misplaced. It was not until the first day of the trial (8 March 2010) that insurers obtained permission to allege that Ms Mai’s alleged e-mail of 12 June 2006 was never sent and was a later fabrication. That required an amendment not to the reply and defence to counterclaim of 19 December 2008 but to the reply to defence to counterclaim only made on 8 March 2010.

[24]As to the meeting itself Mr Isaacs submitted that Mr Dang’s evidence (that the only discussion related to the crew insurance contract) should be preferred because the Towage Plan was unavailable and because Mr Sashkin in cross-examination gave mutually inconsistent accounts of what occurred. The judge, however, found (para 76) that Ms Mai put the Towage Plan on the table and opened some of the pages, speaking with Mr Dang (in Vietnamese) for between 8 and 15 minutes. This was a finding open to the judge on the evidence. It is true that it was very difficult to establish on the evidence precisely what form the Towage Plan then took because it was in different forms at different stages of the negotiation but, once the judge concluded that the meeting did not discuss merely the crew insurance, it is clear that the Towage Plan (in some form) was discussed and that even if its existence had not got through to insurers in the earlier meetings of 16, 18 and 19 May (which the judge did not accept) it must have got through to them at this meeting. It is not surprising that Mr Sashkin, who was not sufficiently fluent in Vietnamese to communicate with Mr Dang in that language, was unable to give a very clear account of precisely what parts of the Towage Plan were explained to Mr Dang by Ms Mai.

[25]It is worthy of note that the judge’s own findings are these (para 79):- “It is not clear(a) what exactly were the contents of the copy of the Towage Plan in Vung Tau’s possession at this stage; and

(b) whether the file which Ms Mai had constituted Vung Tau’s entire copy of the Towage Plan or extracts from it. As to (a) different descriptions of the total contents of the Towage Plan have been given by the claimants’ solicitors at different times. As to (b) Mr Sashkin’s evidence referred at different stages to Ms Mai having a selection of documents and to her putting on the table a file with “the whole of the towage plan”. The likelihood is that it was a substantial proportion, but probably not the whole of the file, being, as was said, about 500 pages long and weighing about 5-6 kilos. The documents were loose in a file, which was not a lever arch file.”

[26]This is a good example of the care with which the judge approached the evidence. He accepts that it is impossible to be sure precisely what Ms Mai had in front of her or what the precise contents of the Towage Plan were at that stage. Nevertheless he expressly finds (para 76) that Ms Mai did show Mr Dang the Assessment, the Explanatory Note and the Instructions to the masters and briefly explained them. He then finds that Mr Dang’s questions showed that he (Mr Dang) had not studied the towage contract and Mr Sashkin had to remind him that he had had that document since 16 May. The judge then adds (para 78) that Mr Sashkin also reminded Mr Dang of the Assessment, the Explanatory Note and the towage Instructions and again suggested providing Mr Dang with a translation but Mr Dang said that that documentation was not necessary or relevant for insurance purposes. That response would, of course, be relevant to any waiver argument (on which we have not felt it necessary to hear the parties) but the fact that the offer was made is also relevant to the question whether the risk was fairly presented.

[27]Mr Isaacs submitted that all this evidence of Mr Sashkin was self-serving as conveniently referring to the very documents which insurers said were not disclosed and he said the evidence should have been rejected by the judge. That would have required the judge (and now, by extension, us) to have formed a seriously adverse view of Mr Sashkin’s honesty. The judge was not prepared to do so and, despite the ten reasons given by Mr Isaacs in para 42 of his grounds of appeal as to why Mr Sashkin should be disbelieved, there is no material (so far) which persuades us that the judge was wrong. Despite the insistence with which these 10 reasons were advanced both orally and in writing they do not amount to more than saying Mr Sashkin gave evidence both inconsistent with itself and inconsistent with the solicitors’ correspondence. But, as we have said, that is not really surprising and the judge was fully alive to the problem.

[28]Once again it might be a nice question whether an oral explanation in Vietnamese of the essential documents which were in Russian could constitute a fair presentation of the risk. Again the offer of a translation might be highly relevant to that question. But the case does not rest there because, if the fax of 10 June is a genuine document, a translation of the instructions was offered in that document. That is why that document is so important and to it we therefore turn.

The fax of 10 June – was it sent?

[29]There were, of course, various meetings and communications between the parties between 31 May and 10 June. The judge’s findings as to these are not particularly controversial and it is even common ground that a meeting did take place on 7 June at which Mr Sashkin handed to Mr Dang certain documents including provisional GMB class certificates for the dock and the workshop and an interim seaworthiness certificate. This enabled the first warranty as set out above to be deleted since insurers now had confirmation that the dock was classed with GMB and no warranty to that effect was any longer necessary.

[30]The purported fax of 10 June (as we call it for the moment) was headed “Sub: Seaworthiness Survey Report No GMB RU 005 dated 10th June 2006 and other official documents of floating dock and workshop required for insurance” and stated that a copy was being sent to Mr Hai of Vung Tau. It then said that Garnat was forwarding the Seaworthiness Survey Report as numbered (which was in English) and also the Instructions for the tug vessel Master and the Floating Dock Master mentioned in that report, in respect of which (although they were in Russian) it was said that a Vietnamese translation could be received from Vung Tau. Various other documents were also forwarded including an Interim International Tonnage Certificate issued by GMB on that day also in English. The number of pages of each of these documents was also given as well as for the other documents (which we do not need to specify). No copy of the Assessment or the Explanatory Note was included in the batch of documents thus supposedly attached.

[31]There are undoubtedly three oddities about this fax:- i) it was never disclosed by the Owners’ solicitors. What was disclosed was the copy received by Vung Tau. Normally that would not matter very much since the supposed “original” and the Vung Tau copy are the same document. They are not, however, identical since the copy received by Vung Tau has at the top the rubric:- “From: Garnat Trading Singapore. Phone No. … June 10th 2006 12.38 a.m.” But the disclosure of the copy rather than the “original” mattered very much once it became clear that insurers were saying not only that they had not received the fax and were thus putting the Owners to proof of the fact that they had sent it but were also saying that the fax was fabricated well after its purported date. In his witness statement of 30July 2009 Mr Sashkin said that he had sent the fax to insurers but the insurers’ solicitors never asked for permission to inspect the “original” at that (or indeed any later) stage, because in response to an earlier request for inspection, they had been told by the Owners’ solicitors on 15 May 2009 that the document had been given to the insurers at a meeting of 12 June 2006. It was, however, incorporated into its chronological place in and was thus before the court in that form. Mr Isaacs said that it had been “slipped” into the trial bundle seeking to imply some nefarious act on the part of Mr Sashkin and/or the Owners’ solicitors. Even then the insurers’ solicitors did not ask to see the original in the Owners’ solicitors’ possession and the aspersion suggested by Mr Isaacs is, in our view, unfair, despite Mr Sashkin’s slightly muddled subsequent oral evidence (T4/28 lines 6-17) as to whether he had given the original fax to his solicitors in mid 2007 or at some later date; ii) Mr Sashkin’s witness statement volunteered that he had sent the fax not (as all other faxes were) to insurers’ main fax number (8294185) but to the underwriting division’s fax number (8210444); iii) The version of the International Tonnage Certificate sent to Vung Tau has a header showing that it had come in as a fax from GMB’s offices in Russia while the comparable International Tonnage Certificate attached to the supposedly “original” fax has no such header.

[32]Mr Isaacs made much of these oddities before the judge and before us. But the judge was not persuaded that the fax was a later fabrication for six reasons each of which Mr Isaacs said was bad. The judge’s first reason (para 102) was that he did not find it surprising that Mr Sashkin should have known the underwriting number or that he should have faxed that number over the weekend. (The timing of the copy received by Vung Tau was, as we have already noted, 12.38 a.m. on Saturday morning).

[33]Mr Isaacs invited us to hold that there was a much more sinister explanation for Mr Sashkin’s saying in his witness statement that he had sent the fax to the underwriting division’s number. He pointed out that the witness statement was signed on 30 July 2009 and that that was only 8 days after the insurers’ solicitors had informed the Owners’ solicitors in the course of pre-trial correspondence that, although the insurers did have a fax number 8210444, insurers had kept no record of faxes arriving at that number. It was at that stage, submitted Mr Isaacs, that Mr Sashkin decided to fabricate the fax and its attachments and “pretend” it had been sent to a fax number in respect of which he now knew that no record of incoming faxes was kept.

[34]This is a very serious allegation; some judges (but not this judge, see T1/51 lines 5-13) might even have required it to be pleaded specifically rather than to let it be covered by the somewhat anodyne denial made on the first day of trial in respect of this fax (as well as the e-mail of 12 June referred to above and to which we will come) that the fax had never been sent. Be that as it may, it suffices for us to say that, while a generalised allegation of lack of authenticity was put (T4/32 lines 11-20) this particular serious allegation was never put to Mr Sashkin who thus never had an opportunity to rebut it. The judge recorded this at para 102 of the judgment and it should never have re-surfaced in the argument before us.

[35]Mr Isaacs complains that the judge should not have referred to the fact that the underwriting division’s fax number was on the insurers’ business cards when those cards were, albeit referred to, never formally proved in evidence. That seems to us to be about as nit-picking as it is possible to get, compared with insurers’ resurrection before us of the very serious allegation set out above which was not even put to Mr Sashkin.

[36]The judge’s second reason (para 103) for finding that the fax was sent was that Vung Tau had produced the copy which had been sent to them from Mr Sashkin’s fax on 10 June. No one has ever suggested that this fax was a fabrication and in the light of the header it would be impossible to do so. The judge said that it was not at all likely that a fax “was sent to the party to whom it was expressed to be copied but not to the primary addressee.” Mr Isaacs pointed out that the enclosures to the supposed “original” fax and the copy received by Vung Tau were not the same in as much as the Instructions to the Masters were not sent to Vung Tau and the International Towage Certificates were different in the way identified as oddity (iii) above. As to the first it was unnecessary to send the Instructions to Vung Tau because as the judge recorded (para 99) Vung Tau already had them.

[37]As to the second point, Mr Sashkin said that he often received documents by both fax and e-mail. The judge accepted that one would “Prima facie expect the same documentation to be faxed to Baominh and Vung Tau or, at the least, that there would not be only a single page which was different.” He said, however, that this oddity did not lead him to conclude that nothing was faxed to the insurers at all. We agree with that, since it is by no means impossible that Mr Sashkin when gathering the documents for attachment to the fax to insurers gathered up an e-mail copy of the International Tonnage Certificate and when gathering the documents for attachment to the copy to Vung Tau gathered up a fax copy of the same document. Insurers’ solicitors could always have asked for disclosure of any document showing e-mail receipt of the Tonnage Certificate and, if it turned out that there was no such document, the argument might have had some force. In the absence of any such request, it does not.

[38]In these circumstances the judge’s reasons in relation to this second point are eminently supportable.

[39]The judge’s third reason (para 104) was that the Owners were fastidious about supplying documentation as and when it became available and that, in the context of the pattern of negotiations and the supply of documents, the fax of 10th June was a fax which Owners could be expected to have sent. This conclusion depends, of course, on the judge being correct about the earlier meetings and negotiations but we have already said that we see no reason to depart from his (essentially narrative) account.

[40]The judge’s fourth reason (para 105) is that the contrivance involved in fabricating the fax was considerable and militated against it being a forgery. The contrivance as set out above is perhaps hardly very great but it certainly required Mr Sashkin to be sufficiently familiar with the solicitors’ pre-trial correspondence to take advantage of the short interval of time between 22nd July and signing his lengthy witness statement on 30th July to fabricate the fax and then only send it to his solicitors at some date after the witness statement was signed. But since the contrivance was never put to Mr Sashkin, its complexity is difficult to assess and ultimately irrelevant.

[41]The judge fifthly dealt with the failure to disclose the “original” until it was incorporated into the trial bundle and the difference between the two International Tonnage Certificates. We have already dealt with the second of these points. As to the first the judge accepted that both the “original” and the Vung Tau copy should have been separately disclosed and that it was not clear when the “original” (incorporated into the trial bundle) was actually received by the Owners’ solicitors, but the judge did not regard the failure to disclose the “original” at the proper time or immediately it was received by the Owners’ solicitors as justifying the conclusion that it was never sent.

[42]We were slightly surprised that the insurers’ solicitors had not asked to inspect the “original” fax in the hands of the Owners’ solicitors and suggested that, even as late as day 3 of appeal hearing, it should be produced. But the fact remains that it (or a copy of it) was produced for the trial bundle and any defect of disclosure was therefore cured. In the light of the fact that insurers had had the original fax (or, more accurately, no doubt, a copy of it) since May 2007 (T4/13 lines 17-20) any such defect is, in any event, marginal. The insurers’ solicitors attempt after the appeal hearing had finished to take the matter further was and is completely misplaced.

[43]The sixth reason given by the judge was that the fax of 10 June did not attach the Assessment. As he said, if the fax was a dishonest fabrication designed to bolster the Owners’ case, one would expect that document to have been included since that also included the important information that the transit was not permissible with sea force of more than 5 and waves of more than 3.5 metres. Mr Isaacs’ only riposte is to say that the fact that the attempt to fabricate was imperfect does not mean it did not happen. But a man who is so familiar with the solicitors’ correspondence in his case that he can take advantage of a short time frame to complete a fraud is unlikely to have omitted an important document to the attachments he is fraudulently making. It seems to us that the judge’s point is well made.

[44]Lastly the judge relied on an e-mail of 21.30 hours on 11 June in which Mr Sashkin asked for some minor changes to the insurance policy, adding that two statements of Compliance for Towing “have been sent to you by fax now” and that good copies would be handed over when they met the next morning. The judge regarded that as confirmation of the genuineness of the fax of 10June which had indeed attached Statements of Compliance for Towing (in English) dated 10 June.

[45]The judge may not have been entirely right about this because the evidence shows that these Compliance Statements were received by fax by the insurers at 01.42 hours a.m. on 12 June (F5 15 and 17). In the light of this, the likelihood may be that they were sent with the fax of 11th June since the word “now” if taken literally is more apposite to indicate “herewith” than “yesterday”.

[46]Mr Isaacs then submits that, instead of confirming the genuineness of the fax of 10 June, the fax of 11 June tends to confirm its falsity because there would be no reason for Mr Sashkin to send the Compliance Statements twice and the likelihood must be, as insurers have asserted, that the supposed fax of 10 June and its attachments was never sent at all.

[47]All one can say is that that might have been a good cross-examination point but since it was never put to Mr Sashkin we cannot tell what his response might have been. He might have said that he had only sent them once, on 10 June as indicated by the past tense “have been”. He might have said that he sent them twice because he had forgotten he had sent them already. The apparently curious facts that the e-mail headings are in Russian when Mr Sashkin was based in Vietnam and that the e-mail appears to be signed “BRGDS Nikolai” might have prompted other explanations. We can never know and the e-mail, even if it does not supply the confirmation which the judge thought it did, cannot at this stage afford any proof that the fax of 10th June was a fabrication.

Fax 10 June – was it received?

[48]The judge decided that, once he had concluded that the fax of 10 June was sent, it was probably received partly because there was no evidence of any transmission failure and normally faxes which are sent do arrive and partly because Mr Sashkin had said in his written evidence that Mr Dang had told him on Monday 12 June that he had received some documents during his rest days but they were not good copies. Mr Isaacs makes the point that Garnat’s own transmission reports were illegible by 2007 and he argues that the insurers’ records of transmission were, therefore, likely to be illegible and may therefore have shown a transmission failure which is now unrecorded. This piles speculation on speculation. He also says that even if it was right to accept Mr Sashkin’s account of Mr Dang’s remarks (which, of course, he says it is not) Mr Dang would have been referring to the two Compliance Statements received in the early hours of 12June. That is again speculative but against it is the fact that there were only two compliance Statements whereas Mr Dang referred to “some documents”, thus indicating that the number of documents received was likely to be more than two.

[49]We consider that the judge was well entitled to hold that the fax was received.

Events of Monday 12 June

[50]The judge held that there was a meeting on this day to which Mr Sashkin brought a full file of documents which he had prepared for the ship’s delivery. Both Mr Dang and Mr Hai were present. It was at this meeting that, as the judge found, Mr Dang said that he had received some documents during his rest days “but they were not so good copies”. He then made copies of some of the documents in Mr Sashkin’s file but Mr Sashkin could not be clear precisely which documents Mr Dang copied. The judge further found, relying on the evidence of both Mr Sashkin and Mr Hai that Mr Dang asked Mr Hai if he could provide him with a Vietnamese translation of the two sets of Instructions to the master. Such translations already existed since Vung Tau had expected that the crew of the dock and the tugs would be Vietnamese; Mr Hai therefore telephoned Ms Mai and asked her to e-mail those instructions to the insurers.

[51]Mr Isaacs submitted that the judge ought not to have accepted Mr Sashkin’s evidence partly because he could not be clear what documents were copied by Mr Dang and partly because Mr Sashkin said orally (T4/36 lines 7-25) that Mr Dang was already holding the Instructions in Russian in his hands and that the judge ought to have found that no copies of the Instructions were provided at the meeting. The first matter was expressly taken into account by the judge (para 113); it is, moreover, entirely understandable that Mr Sashkin could not be clear about the identity of copies which Mr Dang chose to copy or chose not to copy. If anything, Mr Sashkin’s lack of clarity tended to confirm his honesty, since a dishonest witness might well have brought himself to say that Mr Dang did copy the particular documents which were relevant to the non-disclosure plea. That was not what Mr Sashkin said.

[52]The second point is more elusive. The judge had, of course, already found that the Instructions had been sent under cover of the fax of 10June. He did not say whether any fresh copies of the Instructions were (or were not) provided at the meeting and it was unnecessary to do so. The fact that Mr Sashkin had said in his oral evidence that Mr Dang was holding the Instructions in his hand does not, in any event, amount to a statement that they were provided at the meeting and the assertion that the judge should have found that they were not therefore goes nowhere.

[53]Mr Dang’s evidence was that the policy was signed on 12th June and that there was no prior discussion that day about the provision of documents because, if documents had been provided they would have to have been discussed internally by insurers after translations had been provided. This point also goes nowhere if the judge was right to hold as he did that the policy was only signed on 13 June (paras 127-129). But even if he was wrong about that, it does not follow that the judge ought to have rejected the clear evidence of Mr Sashkin and Mr Hai about the meeting of 12 June and accepted the more nebulous account of Mr Dang. Quite the contrary.

Ms Mai’s e-mail of 12 June

[54]The Owners say that, consistently with the agreement reached at the meeting earlier that day, Ms Mai then sent (in Mr Hai of Vung Tau’s name) the translation of the Instructions into Vietnamese to the insurers under cover of an e-mail of 11.27 hours on 12 June. The insurers say that this e-mail was never sent or received and that it was fabricated a considerable time after its purported date. Although the insurers’ solicitors had required the Owners’ solicitors to prove that this e-mail had been sent and had, in that connection, asked on 28 August 2009 for a copy of the e-mail to be provided in a zip file for examination, the insurers did not obtain permission to amend to allege that it was a fabrication until 8 March 2010 (the first day of the trial). The request for the zip file had by that stage neither been responded to by the Owners’ solicitors nor followed up by the insurers’ solicitors seeking any court order; it was only when the positive allegation of fabrication had been made that the zip file became potentially critical. The zip file was then provided on 16 March but only after Mr Sashkin and Mr Hai had given their oral evidence. Mr Hai’s evidence had been that the e-mail had been found in Ms Mai’s “Sent” box and given to the Owners’ solicitors in July 2007 and, indeed, was still in the box in August 2009. For whatever reason, the insurers did not investigate this e-mail any further at trial, save to call evidence from a computer forensics expert (Mr Lloyd-Jones) that he could not find the e-mail on the hard drives of Mr Minh or Mr Dang. That, according to the judge, did not establish that the e-mail was not received partly because Mr Dang might have received it but (for whatever reason) deleted it and partly because, subsequently to 12th June, insurers changed their software from Outlook to Lotus Notes and the e-mail could have been lost or deleted in the course of that change-over.

[55]The judge accordingly held that the e-mail (with its accompanying translation) was genuine. Mr Isaacs submitted that he was wrong to have done so because he should have held that there were a number of (unspecified) possibilities why the e-mail could not be found on the insurers’ computers of which deletion was “but one”; he should have also accepted Mr Dang’s evidence that he would not have deleted it and the expert’s evidence that it was highly improbable that a changeover of software could have resulted in the e-mail’s loss. But it was for the judge to weigh the probabilities about the genuineness of the e-mail; this court could only interfere if we were satisfied that he was plainly wrong. Not only are we not so satisfied but we consider he was probably right particularly in the light of his earlier finding that Mr Dang had actually asked for translations to be sent to him. As the judge observed:- “the e-mail is one which could be expected to have been sent.”

[56]Mr Isaacs also criticised the judge for saying that the insurers did not seek to investigate the e-mail further than they did at trial because as he put it (Grounds of Appeal para 71 (9)) “it would have been an expensive and futile exercise to have conducted any further investigations, the outcome of which could not have been put to any of the claimants’ witnesses.”

[57]This is a most curious submission. On the first day of the trial, insurers had obtained permission to make a positive case that the e-mail was fabricated yet it was never put to Mr Hai that he had fabricated it only that it had not been sent (note 7 to para 117 of the judgment). It seems that, just as with the fax of 10 June, when confronted by a witness on behalf of the Owners, the insurers did not have the courage of their convictions to put to that witness the circumstances of the fabrication which they intended to ask the judge to infer had occurred. That is no way for insurers to conduct a defence to what they assert to be a fraudulent claim or a genuine claim bolstered by fabricated documents. It is apparently necessary for this court to reiterate that if an allegation of fraud or fabrication is to be made, it must be put to the relevant witness fairly and completely before a judge can be asked to infer that the relevant fraud or fabrication has occurred.

[58]If, moreover, insurers leave it to the first day of the trial to obtain permission to make a serious allegation of fraud or fabrication, they run the obvious risk that the allegation may become half-baked. The judge’s comment that, on receipt of the zip file, the insurers did not seek to investigate the matter is not, of course, a finding that insurers did not investigate the matter at all; it is merely an observation there was no further investigation in the face of the court conducting the trial. No doubt if investigation had revealed something which needed to be put to Mr Hai an application could have been made for his re-call. But no such application was made and that has to be the end of the matter.

The signing of the policy

[59]We see no reason to depart from the judge’s conclusion that the insurers’ policy was signed and issued on 13th June rather than 12th June. We are also far from convinced that the actual date of signature and issue is critical to any of the issues which need to be determined by this appeal.

Conclusion on non-disclosure

[60]For all these reasons we consider that the judge’s acceptance of Mr Sashkin (whom he saw in the witness box) as an honest witness and his conclusion as to what was disclosed in para 139 of his judgment are entirely justified; it must follow (as the judge held in para 40 and as insurers accept in para 16 of their Grounds of Appeal) that there was a fair presentation of the risk. The short question, in the end, is who bore the risk of meeting a typhoon or storm with a sea force greater than 5 and wave heights greater than 3.5 metres? In the light of the judge’s findings which we endorse, the answer must be that it was the insurers who bore that risk. Unseaworthiness: the legal principles and the allegations made by the insurers.

[61]Before the judge and before us there was no dispute about the applicable legal principles, save perhaps for one matter which arose as a result of a question posed in the course of argument before us. The agreed principles were set out by the judge at [160] of his judgment which we need not repeat.

[62]The one matter of possible controversy is this: in the case of a voyage policy the implied warranty of seaworthiness is that the vessel will be seaworthy at the commencement of the voyage for the purposes of the contemplated voyage and the vessel will be deemed to be seaworthy if she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured. Yet it was assumed in the trial that the Dock had to be fit in all respects to encounter the ordinary perils of the seas assuming a maximum wave height of 3.5 m on the voyage from Vladivostock to Vietnam. We think that the correct analysis is that the adventure insured was one where it was contemplated by the parties that there would be a maximum wave height of 3.5 m, so that the Dock had to be fit in all respects to encounter the ordinary perils of the seas for that adventure, rather than some other voyage. In short, the “contemplated voyage” for insurance purposes was one where the maximum wave height would be 3.5 m. We proceeded upon that basis for the appeal.

[63]At the trial the allegations of unseaworthiness, as summarised by the insurers, were as follows: “[161] The allegations of seaworthiness, as summarised by Baominh, are as follows:(1) the pontoon stowed at the forward end of the dock was inadequately secured;

(2) the dock's fire and ballast pumping systems were in a poor state of repair and could only operate at a significantly reduced capacity;

(3) the watertight sub-division between the ballast tanks was compromised. In particular, the connecting elements in the port side ballast tanks and starboard side towers were corroded and valves intended to isolate the various compartments from each other were leaking;

(4) the manhole covers on the dock's deck and the deck itself were leaking in several places;

(5) instead of departing Vladivostok with an even keel draught of 2·79 metres as stipulated in para 6.2.2 of the assessment, the dock's even keel draught on departure was 4·4 metres and (if relevant) was never reduced to 2·79 metres. As a result of the reduced freeboard, shipping seas on deck were a problem throughout the tow and neither the bow breakwater nor the securing arrangements were sufficient to prevent waves from making the pontoon buoyant, thereby breaking the cargo sea fastenings.

[64]The judge rejected the insurers’ arguments on all of those allegations. He therefore found, as a fact, that the Dock was seaworthy at the commencement of the voyage. Before us Mr Isaacs challenged that conclusion. He submitted that the most serious aspect of the Dock’s unseaworthiness lay in the fact that she did not depart Vladivostock with an even keel draft of 2.79 m as was stipulated in paragraph 6.2.2 of the Assessment. He put that aspect of unseaworthiness in the forefront of his argument before us. Mr Isaacs submitted that the judge should have found that the draft on departure was considerably greater and was nearer 4.4m and, furthermore, the draft was never reduced to 2.79m thereafter. The result of this, Mr Isaacs submitted, was that the Dock shipped seas on her main deck and that led to the pontoon becoming buoyant, which in turn led to the cargo sea fastenings breaking and subsequent damage to the Dock ensuing. (Although, as already noted, Mr Isaacs emphasised, correctly, that causation was irrelevant).

[65]Secondly, Mr Isaacs submitted that the Dock was unseaworthy because of the inadequate securing arrangements of the pontoon at the forward end of the main deck of the Dock, called, for convenience “the bow pontoon”. He argued that the judge should have concluded that the pontoon was fastened to the sides of the Dock with only six steel cables, not 10 steel cables as the judge found ; further, he submitted that the use of only six steel cables made the Dock unseaworthy.

[66]Thirdly, Mr Isaacs submitted that the judge erred in concluding that the Dock’s fire and ballast pumping system was not in a poor state of repair. Mr Isaacs concentrated his argument before us on the ballast pumps and submitted that the judge was wrong to have concluded, as a fact, that all six ballast pumps were operational at the start of the voyage. Mr Isaacs submitted that the judge should have found that only three were operational. He also submitted that the judge was wrong to conclude that the vessel would, in any event, have been seaworthy if only three ballast pumps were operational.

[67]Fourthly, Mr Isaacs submitted that the judge erred in concluding that there were no leaks in manhole covers on the Dock’s deck or leaks in the deck itself. Mr Isaacs submitted that conclusion was contrary to the clear evidence.

[68]Mr Isaacs did not advance any oral argument on the fifth allegation of unseaworthiness that had been alleged before the judge and was raised in the grounds of appeal, namely, that the watertight subdivision between the ballast tanks was compromised. The judge accepted (at para 234) the evidence of Mr Kalmykov that he had personally checked all the ballast tanks by descending into them before cargo was placed on board. He also accepted the evidence of Captain Rada that the subdivisions of the tanks were subjected to hydrostatic and pressure tests before departure and no compromises in watertight integrity were found. Mr Isaacs did not advance any specific arguments as to why the judge was wrong to accept that evidence, other than his general submission that the judge was wrong to find that those witnesses were reliable.

[69]We will deal with the points in the order of importance in which Mr Isaacs placed them in argument. However, first we should deal with Mr Isaacs’ criticisms of the judge’s conclusion that the evidence of Mr Kalmykov and Captain Rada was reliable and should be accepted. Mr Isaacs submitted that, contrary to the judge’s conclusions, the evidence of those two witnesses was not honest or, at least, the judge should not have accepted it.

[70]In relation to Mr Kalmykov, Mr Isaacs submits that the judge failed to have regard to or to deal with the submissions of the insurers concerning the manner in which Mr Kalmykov gave evidence by video link from Vladivostok and also what are said to be contradictions, confusions and vagueness in his evidence. We have already commented on the care and thoroughness with which the judge prepared his judgment. Mr Isaacs was not able to point to anything in the judgment that would justify his bold submission that the judge simply ignored the insurers’ submissions when he was assessing Mr Kalmykov’s evidence on the various unseaworthiness issues. On the contrary the judge found specifically that Mr Kalmykov gave “somewhat belligerent” evidence; but the judge nevertheless accepted it: para 234.

[71]Mr Isaacs also submitted that the judge had failed to take account of or deal with the insurer’s submissions on the unreliability and inconsistencies in Captain Rada’s evidence. We do not accept that is the case. The judge certainly rejected the insurer’s submissions on what they regarded as the unsatisfactory, not to say dishonest, nature of Captain Rada’s evidence. It does not follow he ignored them and we decline to hold that he did in the face of the very careful assessment that the judge made of Captain Rada’s evidence. As the judge remarked, Captain Rada had no reason to dissemble. As already noted, he nearly lost his life when the Dock foundered. We think the judge must be correct in concluding that Captain Rada would have had no inhibitions about giving evidence as to the unseaworthiness of the Dock if the facts had justified it: para 255 and footnote 67.

[72]Mr Isaacs also submitted that the judge failed to consider the relevance of or to attach any weight to the fact that Captain Parshintsev did not give evidence on matters which were within his knowledge, despite the fact that he may well have been in or near the jurisdiction at the time of the trial. The judge noted the extent of the evidence from Captain Parshintsev at para 165 and he recorded the fact that Captain Parshintsev was on board a tug in the Bay of Biscay at about the time the trial started. The judge does not go into more detail. We do not know whether it would, in fact, have been possible for Captain Parshintsev to come and give evidence. It is clear that Captain Parshintsev was working at sea and was not in the employment of the Owners. They could not force him to come and give evidence. Mr Isaacs did not show us any material that suggested, positively, that Captain Parshintsev could have come to give evidence and would have been willing to do so. In those circumstances, we reject the submission that the judge “failed” to consider the relevance of or to attach any weight to “the failure” of Captain Parshintsev to give evidence.

The departure draft

[73]The Towage Plan specified that the Dock should have an even keel departure draft of 2.79 m, in order to provide the required stability and longitudinal strength. The judge found (para 236) that a 2.8 m draft could be and was achieved before the Dock departed. In doing so the judge relied first on the “Statement on the right of departure No 1672” signed by the Captain of the Dock (Captain Rada) and the duty assistant harbour master, which recorded fore and aft drafts of 2.8 m. The document described the “time and date of drawing up departure” as 14.15 hours on 23 June 2006. The judge relied on that document and another, signed by Mr Kislov, the controller of the Port State Control, as evidence that there had been a physical inspection of the Dock on 23 June 2006: para 235.

[74]Mr Isaacs pointed out that the “Statement on the right of departure No 1672” stipulated that there was only 286 tonnes of ballast on board the dock at the time the document was drawn up or at the time of the inspection leading to the production of the document. However, as the judge noted at para 237, more than 286 tonnes of ballast would be needed to produce an even keel draft of 2.8 m fore and aft; it would in fact need 286 tonnes in water ballast tank 2 and 363 tonnes in water ballast tank 19 of the Dock.

[75]The judge recognised that the figure of 286 tonnes ballast and even keel drafts of 2.8 m fore and aft were not compatible. In para 238 he set out four possible explanations for the inconsistency between the facts set out in the Statement to the effect that(a) the draft was 2.8m fore and aft, but

(b) there was only 286 tonnes of ballast on board. He concluded that the probabilities were that either the Dock carried 286 tonnes of ballast but not all in water ballast tank 2 or that the figure of 363 had been mistakenly omitted from the Statement: para 242.

[76]Mr Isaacs criticised this conclusion on two bases. First, because it would not be possible for the Dock to achieve a mean draft of 2.8 m with only 286 tonnes of ballast water on board; it would need 649 tonnes of ballast water or equivalent to do so: (the Instructions to the Dock Master state 285 and 363 tonnes in tanks 2 and 19 respectively were needed for that draft). Secondly, if the Dock had only 286 tonnes of ballast in tank 2, then she would have had a bow trim which is not evident from any of the photographic evidence before the judge.

[77]Mr Isaacs further submitted that the judge erred in accepting (para 236) the evidence of Mr Kalmykov and Captain Rada that the Dock had achieved a 2.8 m draft before her departure. Mr Isaacs relied particularly on the photograph that was taken on 23 June 2006, at 9.26 pm (F1/1/38), which was 26 minutes after the Dock’s unberthing, and the fact that the Owners’ expert, Mr Barker, agreed that this photograph showed that the drafts were more consistent with being 4.4m than 2.8m. However, both Mr Barker and the insurers’ expert, Mr Case, accepted that none of the photographs were conclusive.

[78]In our view the judge was correct to conclude that the vessel was capable of achieving an even keel departure draft of 2.8m. The photographic evidence is indeed inconclusive. Such evidence is often put forward in an attempt to prove a vessel’s draft at a particular time but, except in rare circumstances, it is not likely to be accurate or conclusive on its own. We accept, as did the judge, that the Statement of 23 June 2006 is incomplete. But, whatever the reason for this, the judge was entitled to accept (para 236) the evidence of Mr Kalmylov and Captain Rada that the departure draft of 2.8 metres was achieved before departure. Mr Isaacs has not produced any good reason why the judge should not have accepted their evidence other than his general submission, which we rejected, as did the judge, that both were generally unreliable witnesses whose evidence should therefore be disbelieved on all relevant points.

[79]The judge found as facts that the deputy harbour master had attended on board the Dock in the evening of the departure and recommended that her draught be increased to 4.4 m to reduce the windage whilst she was being moved under tow along the narrow channel in Golden Horn Bay in Vladivostok and Captain Rada and Captain Parshintsev, as the commander of the towage expedition, agreed to that course. The judge accepted that the draft of the Dock was then increased from that of 2.8 m to 4.4m during the initial part of the voyage through the narrow channel: para 244.

[80]Mr Isaacs criticised those conclusions of fact and submitted that the judge should have found that the draft of the Dock was never 2.79 m before departure, but in fact was considerably more than 2.79 m at that stage, even if not as much as 4.4m. He submitted that the statement of Captain Rada in his Letter of Explanation of 4 August 2006 (to the effect that the Dock had a departure draft of 2.9 m but it was then increased as a result of the discussion with the deputy harbour master) was inconsistent with his evidence in cross-examination. Mr Isaacs pointed out that there was no mention of an increase of the draft of the Dock to 4.4m in the logbook of the tug “TOPAZ”. He emphasised that, in any case, all the documents such as the Assessment and the various Instructions treated “departure” as leaving the berth at Vladivostok, not some time later, so that the Dock should have had a draft of 2.79 m on departure from the berth, not as from some later time.

[81]In our view, the judge’s findings of fact on the reason for and the circumstances of the increase in draft to 4.4m are unassailable. He took account of the evidence of Captain Rada and all the documentary evidence. His finding accords also with the fact that the Dock was fitted with dead anchors when alongside at Vladivostok. In order to release her from these, the Dock’s drafts would have had to be increased in any event, as Captain Rada explained in paragraph 8 of his first statement.

[82]The judge also concluded that this increase in the draft did not make the Dock unseaworthy at the commencement of the voyage. Again we think that the conclusion of the judge (at para 245) that this increase in draft, if anything, made the Dock more seaworthy at the commencement of the voyage is plainly right. An increased draft meant a reduction in windage and so made the Dock more easy to control. The judge found (para 245) that the tugs and tow passed through the “flat calm waters” of Golden Horn Bay where the “shipping of seas on deck would be either non-existent or minimal”.

[83]Mr Isaacs accepted that if we concluded that the Dock would be seaworthy if she had a departure draft of 4.4 m when she left the berth at Vladivostok then none of the other factual issues concerning the departure drafts of the Dock were relevant. That must be so. However, the judge did go on to find that the Dock’s drafts were in fact decreased to 2.8 m on 26 June 2006: paras 236 and 247. Mr Isaacs attacked that finding of fact also. In the grounds of appeal, which doubled up as written submissions for the appeal, he set out the insurers’ criticisms of this finding at paragraph 150. They amount to no more than a rehearsal of the arguments placed before the judge which were rejected by him at para 247-8. No new argument is advanced; nor is there any persuasive material from which we could conclude that the judge had misunderstood the evidence or reached a perverse conclusion from it.

[84]Accordingly, we reject the submission that the Dock was unseaworthy at the commencement of the voyage because she was not capable of having a departure draft of 2.79 m. We concur with the judge’s finding that even if “departure” is taken to mean immediately upon unberthing and that, even if the Dock’s draft was increased to 4.4m at that point, that did not make the Dock unseaworthy in the circumstances. We also conclude that the judge was entitled to find, on the evidence, that the Dock’s draft was reduced to 2.8 m on 26 June 2006.

[85]The judge dealt with an argument, advanced by the Owners, that the doctrine of “stages”, laid down in s.39(3) of the Marine Insurance Act 1906 would apply in relation to this voyage, so that the Dock could be seaworthy with a draft of 4.4 m during the first “stage” when she left the berth and was towed through Golden Horn Bay, so long as the Dock had fore and aft drafts of 2.79 m for the “second stage”, viz. the towage in the open sea. We do not think it necessary to decide whether the doctrine of “stages” applies to this voyage.

The bow pontoon securing arrangements on departure

[86]Mr Isaacs submitted that the Dock would only be seaworthy at the commencement of the contemplated voyage (ie. to be in a state to withstand sea conditions of sea force 5 and waves of up to 3.5 m), if the bow pontoon was then secured by 10 steel wire lashings or cables so that the pontoon would be completely immobile during the voyage. He submitted that it was clear from the expert evidence that if there were not 10 such lashings there was a prospect of the bow pontoon moving, particularly in a heavy seaway (but with waves of less than 3.5 m) and that could lead to the pontoon becoming insecure and doing damage. He submitted that this was precisely what did, in fact, occur.

[87]In support of his contention that 10 steel wire lashings were needed, Mr Isaacs relied principally upon a document produced in January 2010 by Mr Shubin, the towage plan designer. This document recalculated the lashing strength of the bow pontoon upon the basis that two steel lashings, each of 29 mm in diameter, were secured to the pontoon at each of its four corners (two each corner) and one each at the forward and aft end of the pontoon, secured in the middle of those two sides. According to this document the ten steel lashings were to be secured at points on the deck and side towers of the Dock, using eye-bolts that were in place.

[88]The judge accepted that originally the plan had been to secure the bow pontoon with six steel cables, all of a diameter of 29 mm. Three each of these were to be secured respectively on the port and starboard side of the pontoon: para 175. But the judge also accepted the evidence of Mr Kalmykov that he had persuaded the towage plan designer to add four additional steel wire lashings because of his (Mr Kalmykov’s) view that the original design (which was based on a maximum wave height of 3.5 m) might not be sufficient if wave heights exceeded 3.5 m in the event. That evidence was corroborated, the judge found, by a revised “Specification of the materials for the fore pontoon strengthening on the ship-way deck of Floating Dock in the area of 4…16.5 frames” dated 7 June 2006. The judge rejected the submission of the insurers that this document had been manufactured by the Owners after the casualty: para 178.

[89]The judge’s conclusion (at para 181) was that the likelihood was that the Dock sailed with the bow pontoon secured with ten lashings of steel cable with 29 mm diameter. In support of that conclusion he accepted Mr Kalmykov’s oral evidence and he found that the revised specification document was both genuine and accurate. The judge also relied upon a letter dated 7 June 2006 sent from Mr Chepchugov (a director of the ship repair company Vladivostok Sea Port Pervomaiskiy) to Mr Nagevskiy, GMB’s chief inspector, which forwarded for approval the revised lashing arrangement for the bow pontoon. The GMB surveyor had stamped “Approved” on the letter. In addition, the judge thought it improbable that Mr Shubin should have produced his recalculation in January 2010 (which was intended to reproduce calculations that he had done before the voyage) on the basis of a factually erroneous premise, viz. that there were ten lashings if, in fact, there had only been six.

[90]Mr Isaacs submitted that the judge’s conclusion that ten steel cables of 29 mm diameter were used to secure the bow pontoon was against the weight of the evidence. He submitted that there were plainly only six steel cables upon departure and that additional cables were only added after the convoy encountered typhoon Ewiniar on 9 July. For this submission Mr Isaacs particularly relied on three photographs taken on 25 and 29 June 2006, which, he said, showed conclusively that there were not ten steel lashings in place in the manner contemplated by the Shubin drawing. But he also emphasised the fact that Captain Rada had stated, at paragraph 15 of his first witness statement, that the bow pontoon was secured by “means of [a] series of six 19 millimetre steel wire cables”during the period from the Dock being unberthed until encountering typhoon Ewiniar and that it was only after the tow encountered that typhoon that four further steel cables were added to the original six. Mr Isaacs emphasised that Captain Rada only changed his evidence when giving supplementary evidence in chief. He said that it was significant that Captain Rada gave evidence by videolink from Vladivostok after Mr Kalmykov had done so (using the same video link) and had given evidence that ten steel cables were used to secure the bow pontoon.

[91]Mr Isaacs also relied upon the Expert Evaluation of the Far East Marine Research, Design and Technology Institute “FEMRI” dated 25 August 2006. This document referred to the fact that the bow pontoon had lifted off the Dock’s deck during the voyage, producing vertical loads which, in the words of the unsatisfactory English translation, “exceeds explosion load of six lashings, even if they accepted external uniform load”.

[92]We acknowledge that the photographs do not show clearly an arrangement of lashings that equates with the Shubin drawing. But, as the judge indicated, it is perfectly plausible to explain that by postulating that the lashings were arranged differently to that shown in the Shubin drawing or as shown in the original calculation that he had made. The judge found, as a fact, that originally there were to be six steel cable lashings. That finding is not challenged. If four were to be added then they would have to take account of how the original six were placed and where they were secured. The judge accepted Mr Kalmykov’s evidence that four additional lashings were made good. Mr Isaacs has not demonstrated why the judge was in error in accepting his evidence. Furthermore, as the judge pointed out, Mr Kalmykov’s evidence was corroborated by the “Specification of the materials for the fore pontoon strengthening on the ship-way Dock of Floating Dock in the area of 4….16.5 frames” dated 7 June 2006 (H1/4/6A-B), which clearly indicates there will be 10 steel “ropes” of a diameter of 29 mm. The document is signed as approved by Mr Shubin. In these circumstances the judge was entitled to accept that Captain Rada’s actual oral evidence was correct and represented what actually happened in the end.

[93]Mr Isaacs spent some time arguing that when some securing arrangements for the bow pontoon failed on 9 July, the wave heights that were encountered by the convoy were less than 3.5 m. The judge found, at paras 184, 187-188 and 193, that four stanchions parted that had been welded onto the breakwater which was forward on the Dock’s main deck to which other lashings from the bow pontoon had been secured. He said that the evidence was “unclear and inconclusive” on whether some of the steel cables securing the bow pontoon to the Dock’s deck parted in the course of encountering typhoon Ewiniar and, if some did, how many and at what position. However, as we read para 193 of the judgment, the judge concluded that up to four of the steel wire lashings probably parted and were re-rigged thereafter.

[94]Mr Isaac’s concentration on the sea conditions of 9-10 July was intended to demonstrate that(a) the wave heights were less than 3.5 m, yet

(b) the bow pontoon securing arrangements failed because the pontoon was insufficiently well lashed down, so that

(d) if there were only six then it reinforced the insurers’ case that six were insufficient;

(e) either way this goes to prove the Dock was unseaworthy in respect of the lashing arrangements for the bow pontoon.

[95]This submission only has any force if it is established that whatever steel wire lashings of the bow pontoon were in place before encountering typhoon Ewiniar did, in fact, give way in wave heights that were below 3.5 m. The judge analysed the evidence about the sea conditions and what happened on 9 July at paras 187 to 197 of his judgment. He concluded, at para 197, that it was not established that the lashings gave way with wave heights below 3.5 m.

[96]That finding is challenged at paragraphs 118-120 of the grounds of appeal, which argue that the judge’s conclusions are against the weight of the evidence, particularly that of the “TOPAZ”’slogbook entry for noon on 9 July 2006, recording seas of up to 3 m, and the report of Captain Rada at 1205 that day that “fastening of pontoon located in Dock’s forepart broken”. We accept that those pieces of evidence may assist the insurers’ argument. But, looking at the evidence overall, we are satisfied that the judge was entitled to reach the conclusion of fact that he did.

[97]Therefore, we conclude, overall, that the insurers must fail on this point.

The ballast pumps

[98]The Dock was designed with six ballast pumps, each one of which was located within one of six sea valve chests, which could be used for ballasting and de-ballasting operations in order to lower or raise the dock swiftly in the water. The ballast pumps were electrically operated using power from three generators, one of which was an emergency generator. Using a system of valves and ballast lines, any one of the six ballast pumps should have been capable of ballasting or deballasting any one of the Dock’s 20 ballast tanks. The design pumping capacity of the six ballast pumps was either 1500 or 2000 cubic metres per hour so that the dock could be entirely de-ballasted in about two hours. The judge also noted that the six ballast lines were designed to be operated on the 20 tanks with each pump serving three or four tanks simultaneously in normal operation: see paras 5, 6 and 201.

[99]At the trial the insurers’ case was that only three of the ballast pumps were operational when the Dock started her voyage. The owners’ case was that all six were operational but, in any event, the Dock was seaworthy even if only three were operational. The judge concluded that all six were operational at the start of the voyage: para 211.

[100]Mr Isaacs submitted that this conclusion is based principally on the evidence of Mr Kalmykov and Captain Rada and is against the weight of all the other contemporaneous evidence and cannot stand. Mr Isaacs relied in particular on (i) a report prepared by Captain Rada for Mr Parshintesev dated 21 July 2006 to indicate that only three ballast pumps were in use and that those were “all the capacities available”. Mr Isaacs submitted that this was consistent with evidence in separate reports from Chief Engineer Murav’eev, the Electrical Engineer and the Motorman to the effect that all pumping equipment was put in operation. The conclusion must be, Mr Isaacs submitted, that the Dock only had three ballast pumps that it could use.

[101]At para 166 the judge set out in detail the evidence on which the Owners relied to show that there had been extensive preparations for the tow of the Dock. These preparations included:(a) a repair contract with DalRemSnab, dated 12 April 2006, within which there were items which related to the repair of the ballast and fire pumps;

(b) an annual survey of the Dock, completed on 24 May by the Russian classification society, RMRS, who indorsed the class and seaworthiness certificates without recommendation;

(c) on 30 May Daltramp, the shipyard and GMB (RMRS’s successor as the Dock’s classification society) signed a document to confirm that all repairs to be done by the shipyard and its sub-contractor had been performed in accordance with the requirements of RMRS;

(d) from 30 May to 10 June the Dock and the workshop underwent further inspections as part of the process of reclassification from RMRS to GMB. GMB issued a provisional class certificate on 6 June, interim seaworthiness certificates on 6 and 10 June and a seaworthiness survey report on 10 June 2006. The judge also found that although GMB may not have had unlimited access to the Dock as from 30 May, there was no reason to suppose that it did not check and satisfy itself in relation to those parts of the Dock that it did inspect.

[102]At para 170 the judge rightly commented that a vessel whose ballast system is in part inoperative or whose tanks are not watertight would not comply with class requirements. In his view it was “legitimate to infer from the material referred to, the absence of sufficient evidence to the contrary the final approvals given on 10 and 23 June to the effect that the Dock was fit for towage and the evidence of Mr Kalmykov” that the work needed was properly carried out and that no significant defects remained. At para 203 the judge noted that Mr Case, the insurers’ expert, had himself accepted that it would be astonishing if the Dock had passed class, seaworthiness and Port State inspections with a fire and ballast pumping system that was in a defective state.

[103]In our view the references in Captain Rada’s report of 21 July to three ballast pumps being used and the references by other witnesses to “all” ballast pumps being used but the ballast tanks continuing to flood do not amount to compelling evidence which could lead us to find that the judge’s conclusion on the working condition of the ballast pumps was against the weight of the evidence. On the contrary, we are satisfied that the evidence of the preparations for the tow and the judge’s view of the evidence of Mr Kalmykov (para 203) and Captain Rada (para 204) entitled him to conclude that all six ballast pumps were operational at the start of the voyage.

[104]The judge found (para 206) that when the Dock got into trouble on 13-14 July in tropical storm Bilis, only three ballast pumps and one fire pump were used and that this had caused Mr Case to conclude that only three of the ballast pumps were operational. The reason for using only three ballast pumps that was given in evidence by Captain Rada and Mr Kalmykov was that the capacity of the ballast pipeline system was lower than the output capacity of the pumps themselves, so that there was no point in using more than three ballast pumps at any one time.

[105]The judge rejected this thesis. He concluded that all six pumps were operational but either there was no point in using more than three because of the limitations in the ballast pipeline system or because Captain Rada thought there was no point in using more than three: para 211.

[106]Mr Isaacs attacked the judge’s conclusion on the reason for using only three ballast pumps, saying that Mr Kalmykov did not give evidence as recited by the judge and that, despite what Captain Rada said in evidence about the source of his belief that there were restrictions in the ballast lines, there was in fact no documentation to corroborate his evidence. In our view, this argument misses the point. The insurers did not assert that the Dock was unseaworthy because her captain and crew were incompetent concerning the working of the ballast system and its use. If, as the judge found and we also accept, the Dock did have six operational ballast pumps at the commencement of the voyage, the fact that only three were used thereafter in the emergency that arose cannot, in itself, make the vessel unseaworthy at the commencement of the voyage. We also entirely reject the mechanistic argument that because only three ballast pumps were used in the emergency that arose on 12 July, therefore it must follow that only three were operational. The evidence to the effect that all six were operational at the commencement of the voyage was very strong and the judge was entitled to find that as a fact.

[107]It follows that we do not need to consider whether the Dock would have been seaworthy if she had only had three operational ballast pumps at the start of the voyage.

[108]The insurers’ appeal on this issue therefore fails.

Alleged defects in manhole covers and watertight sub-divisions

[109]At the trial, the insurers had relied on two e-mails for their arguments that there was corrosion in the manhole covers of the main deck of the Dock and that the sub-divisions in the ballast tanks of the Dock were not entirely water-tight. The first was an email sent from Captain Parshintsev to Daltramp at 7.02 hrs on 10 July 2006, which set out, “according to report of dock master” (i.e. Captain Rada) 21 items of “damages”. Item 4 was “pontoon leaks in 7 places, cause of leakages – corrosion wear”; item 15 was “2 holes in drain pipes of main ballast repaired”; item 16 was “3 glands packed into main ballast pump”; item 17 was “we suspect overflow between main ballast systems” and item 18 was “gate valve port side closes not fully”.

[110]Daltramp responded to that email with one on 11 July in which it requested Captain Parshintsev answer further questions. On item 17 Daltramp asked him to report on which “cisterns” (i.e. ballast tanks) he suspected there was a “ballast crossflow”. He was asked also to examine those tanks thoroughly and establish the reason for any “crossflow” and then report. He was also asked to examine bulkheads and side walls of the turret framing and the “dock pontoon” for the presence of any apparent cracks, both externally and, as far as possible, internally and then he was asked to report in writing.

[111]Captain Parshintsev reported to Daltramp again on 12 July 2006 and listed nine items. Numbers 5, 6 and 7 are relevant to the present issue. On those, Captain Parshintsev stated:

“ 5. Walls and framing of towers and pontoon externally and internally inspected. No cracks and damage to joint found. 6. Item 18 – ingress of seawater into ballast compartments Nos. 3, 4, 18. Cause of ingress – weak slide valves of de-watering and ballast pumps. Perform continuous check of water level and pumping out as necessary. 7. Stormy weather conditions, sea water on pontoon-deck, leakage of seawater into ballast compartments Nos. 9, 10. Probably through manholes of ballast compartments located under floating workshop. ”

[112]The two experts, Mr Barker and Mr Case, took differing views as to the significance of those items as reported in the emails of 10 and 12 July. The judge accepted the view of Mr Barker that it was not possible to attach any real significance to the reference to a leakage through manhole covers because if the manhole covers were in place then, even if they were not in good condition, any leak would not be significant because of their physical construction: viz. pieces of steel closely bolted down onto a rubber gasket. Therefore any leak would, in Mr Kalmykov’s words, which the judge also accepted, be “a drop in the ocean”: see para 220.

[113]The judge also accepted the view of Mr Barker that the emails did not indicate whether defects in fact existed as opposed to being suspected defects, or, if they did exist, whether they were serious or not or were matters that could be dealt with by routine maintenance. The judge found that this lack of specificity applied to items 15 to 18 of the 10 July list: para 221.

[114]The insurers submitted that the judge was wrong to have reached those conclusions in paragraphs 220 and 221 of his judgment. But there is nothing in either the grounds of appeal (para 135) or Mr Isaacs’ oral argument which would entitle us to conclude that the judge erred. The arguments advanced before us were a re-run of those that failed to convince the judge, who heard all the witnesses and who was able to assess the two experts and who concluded that, in general and on particular issues, he preferred the expert evidence of Mr Barker.

[115]In relation to the state of the manhole covers and watertightness of the ballast tanks, at the trial and before us both sides referred to the explanatory note of 17 August 2006 that was sent by Captain Rada to the Russian commission of investigation into the wreck. The judge set out all the relevant text of this long explanatory note at para 222 of his judgment. As this was a document which the judge relied on to reject the insurers’ case on this aspect of unseaworthiness, we will set it out again here.

[116]Captain Rada reported:

“1 … Early in the morning on July 10th 2006 I have actually reported to the Chief of Expedition that the divergence with a typhoon EVENIAR has passed as a whole safely, and the small damages received as a result of a storm will be eliminated. The permanent monitoring of water in the tanks through sounding pipes and trial test pumping out of water from the tanks by bilge pumps during July 9–10 have shown that ingress of seawater in ballast tanks and dry compartments were not occurred. Ballast pumps during this period were not used at all.”

Moreover it could not be any discussion of the flow of water in tanks 10–12 July when the weather was normal and the crew safely removes the consequences of storm on July 9 (paragraph 6 of the telex of Mr Parshintsev dated 12.07.2006). But I really had been stated to the Chief of expedition about my suspicion for small leaks through glands of the sluice valves of the ballast system or bulkhead glands, and also intentions to check up all suspicions after the storm. Duties of crew include check of a condition of all systems of the dock after a storm. 2. Between 10–11 July dock crew had completed work on the restoration of the bow pontoon's fastening which were damaged by waves, additional cable brace of the pontoon has been provided on the recommendation of the Chief of the expedition, other damages or defects identified after the storm were eliminated. It was removed several flaws in the fire main 57, scuppers were cleaned, we have started checking of the glands of sluice valves and bulkhead glands in the tanks 58that to remove the suspicion of possible leakage of water through these glands. The gland's nuts and studs were pressed out where it is need. At the same time I declare that no any sealing glands 59of the ballast pumps, cooling pumps of diesel generator and compressors were not replaced, as specified in the telex of the chief of expedition Mr Parshintsev on the 12.07.2006. All pumps were in good condition, any flaws in scuppers of the ship-way deck have been not eliminating also. I have reported to the Chief of expedition by radio in the evening on July 11 about the executed works and that next day on July 12 we shall continue checking of some elements of ballast bilge system of the dock and carry out repair and maintenance works as required. According to the instruction of the ship-owner, provided before departure dock from Vladivostok, the crew continued the concreting of dents on the surface of ship-way deck that were made at the time of the dock's repair in Vladivostok or during of its previous operation … 3 During the 12 July crew dock surveyed several tanks and sluice valves of the ballast system and the piping of ballast-bilge system, glands of the sluice valves and bulkhead valves were pressed out, flange couplings of piping were tightened. No serious damages have been detected. We have carried out test of the ballast-bilge system once again with taking up of the ballast into the tanks and pumping it out, tank's stripping – all equipment worked in normal mode. Any cross-flows or leaking of water in the sluice valves and bulkhead glands were not found. Results of the tests were reported to the Chief of Expedition on evening of July 13. The necessary records about all operations and actions of the crew were made in the ship; log of the dock. 4 As to reports and the information of the Chief of Expedition, basically they correspond to the taken place facts during the specified period on July 9–12 2006 but in view of my amendments and remarks made in this note.' (Bold emphasis added.)” Footnotes: 57 The translation attached to Mr Barker's supplementary report uses the expression 'flute cracks' which Mr Barker interpreted as pinhole or flute hole-like cracks. 58 This appears to be a reference to a gland of some sort tightening up the steel pipe as it goes through the bulkhead. 59 In the Barker report translation the reference is to 'stuffing boxes', a form of gland which works by keeping grease under pressure to stop water coming out.” Footnotes: 59 In the Barker report translation the reference is to 'stuffing boxes', a form of gland which works by keeping grease under pressure to stop water coming out.”

Footnotes:

[117]The judge found (para 231) that on 18 August 2006 Captain Parshintsev wrote a note of his own to the commission of investigation, with a copy to the owners of the tugs (DV Basu) in which he confirmed Captain Rada’s note of the previous day which Captain Parshintsev said (in his note) that he had seen. The insurers asserted at the trial that Captain Parshintsev’s note had been fabricated at some time after 30 October 2009, after Mr Case had produced his first expert report on behalf of the insurers in which he had identified defects in the Dock, in particular the leaks in manhole covers, the lack of watertightness in the ballast tanks and problems in the ballast lines and valves as set out in the emails of 10 and 12 July as demonstrating that the Dock was unseaworthy. The judge rejected the argument that the document of 18 August was a later fabrication as “highly implausible”: para 230.

[118]The insurers submitted that the judge erred in concluding that the document of 18 August was not a later fabrication. They relied in particular on what they described as the “suspicious circumstances” in which the document was produced by the owners, through their solicitors, in December 2009, long after formal discovery of documents had been completed by both sides. Moreover, they relied on differences in the layout of the copy of the document disclosed in December 2009 and what was said to be another copy of the same document (and produced at the same time) which was attached to a statement of Captain Parshintsev dated 15 January 2010, which was served in order to prove the authenticity of the document of 18 August after the insurers had served a notice requiring the owners to prove it. The insurers also asserted (both before the judge and before us) that Captain Parshintsev could, in fact, have given oral evidence because he was in the UK at the time of the trial, whereas in fact he was not produced.

[119]The judge rejected all those arguments and so do we. We think that the most striking point against the document of 18 August being a fabrication is the very fact that two different versions were disclosed by the owners, one in December 2009 and then another in January 2010. We think it particularly significant that the differences do not lie in the content of the text but in its layout in the two copies disclosed. There is also the fact that the copy sent to DV Basu had a manuscript note on it dated 22 August 2006, apparently written by the recipient and stating “please draw up an order”; and that this copy also had on it a stamp of Pacifictramp, the company that concluded the towage contract. The judge also thought that the signature, although by the same hand, was slightly different. However, as the judge stated in para 230, “the production of two non-conforming copies of the note of 18 August would be a very curious and convoluted fabrication”. We agree. Nothing Mr Isaacs has said in his written or oral arguments, which reflect those put before the judge, has convinced us that we should doubt the judge’s conclusion.

[120]At paragraph 231 the judge noted that Mr Case accepted that if what Captain Rada said in his explanatory note of 17 August 2006 was correct, then none of the matters relied upon by Mr Case in the emails of 10 and 12 July to demonstrate that the Dock was in a generally poor, unseaworthy condition could, in fact, be serious or evidence of unseaworthiness at the commencement of the voyage. That concession was, we think, correctly made and Mr Isaacs did not resile from it before us.

[121]The judge went on in the same paragraph to find that the contents of Captain Rada’s explanatory note of 17 August seemed to him to be “likely to constitute the most accurate account available of what was found, suspected or done” at the time of its production. It represented evidence of “relatively minor matters discovered after and to some extent caused by an encounter with a typhoon and swiftly seen to without difficulty”, rather than being evidence of unseaworthiness of the Dock at the start of the voyage.

[122]The insurers submitted on this appeal that the judge was wrong to have taken that view of Captain Rada’s explanatory note, largely because the contents of that note were, in their submission, directly contradictory to the emails of 10 and 12 July sent by Captain Parshintsev to Daltramp. The insurers submitted that those notes represented the best evidence of the state of the Dock and demonstrated that there were serious problems with leaks of the manhole covers and the watertightness of the ballast tanks.

[123]We are satisfied that the judge was entitled to reject that argument. First, the emails of 10 and 12 July are reports by Captain Parshintsev of matters he had not seen himself. He was purporting to report matters as reported to him by Captain Rada. Secondly, it is inherently more likely that the contents of Captain Rada’s explanatory note of 17 August, representing the report of the Dock-master himself on what he saw or did or had reported to him on board the Dock on 10 July, would be more accurate than a second – hand summary of Captain Parshintsev.

[124]Thirdly, Captain Parshintsev himself stated in his report of 18 August that he had intentionally distorted some of the facts so as to overestimate work needed to be done by the Dock’s crew. Captain Parshintsev said that items 15 – 18 of the email of 10 July “did not take place on the Dock”. He also said that the damage identified in points 6-8 of the email of 12 July did not take place. The judge accepted this retraction as representing the truth. We (and we suspect the judge) might have been sceptical about that were it not for the other evidence that supported the position advanced by Captain Rada. Fourthly, Captain Rada was challenged in cross-examination about the state of the manhole covers and he was insistent that they did not leak. Fifthly, Mr Kalmykov gave evidence in his witness statement that the manhole covers of all the ballast tanks were tested for watertightness before the Dock’s departure and that he also inspected all the ballast tanks for watertightness. That also was accepted by the judge and Mr Isaacs has not convinced us that the judge was not entitled to do so.

[125]That just leaves item 4 of the email of 10 July which Captain Parshintsev said in his explanatory note of 18 August was one of the items of damage that he had correctly specified. However, it was not at all clear to us whether the “pontoon” referred to in item 4 of the email of 10 July is the “pontoon deck” of the Dock or whether it is a reference to the bow pontoon itself. The position is made more obscure by paragraph 3 of Captain Parshintsev’s explanatory note of 18 August which appears to suggest that the holes were discovered at points where the four stanchions, which had been welded onto the breakwater which was at the bow end of the Dock’s main deck, had been ripped out in the encounter with typhoon Ewiniar. Mr Ashcroft pointed us to the second witness statement of Captain Rada, which attempted to clarify what was being referred to in item 4 of the email of 10 July. We do not find that particularly helpful. Mr Ashcroft also said that, at the trial, the insurers did not particularly rely on this item and that is why the issue of what item 4 referred to was not more fully dealt with by the judge.

[126]We think that the question of whether there was corrosion on the manhole covers that caused leaks is put beyond doubt by two matters. First, during the preparation for the tow, a very large number of thickness measurements of the steel of the Dock were taken and recorded. If there were serious problems with corrosion of the manhole covers on the Dock’s main deck, they would have been recorded there and would have had to be dealt with in repairs that were to take place. But Mr Isaacs did not refer us to those at all to demonstrate that there were problems with corrosion to the manhole covers. Secondly, as the judge records in para 234, the whole point about the Dock was that her main deck would be submerged every time any objects, such as a ship, were to be placed on the main deck itself. If there were leaks of manhole covers because of corrosion the Dock would have been useless for its intended purpose. It is therefore inherently likely that everyone would have ensured that all necessary repairs and tests were done to ensure that the Dock would be able to function. In addition, as the judge also found at para 234, Captain Rada visually inspected before departure all the manhole covers that were accessible for visual inspection after the cargo was loaded.

[127]We therefore conclude that the insurers’ appeal on this point also fails.

Conclusion on unseaworthiness

[128]For the reasons given above, the insurers’ appeal on the unseaworthiness plea fails in all its aspects.

Disposal

[129]For all these reasons, this appeal fails and is dismissed.