“[3]……..Lord Brandon of Oakbrook, giving the only substantive opinion, described the approach of the trial judge as erroneous by reference to the inappropriateness of applying what was described as the dictum of Mr Sherlock Holmes. First, a trial judge was not compelled to choose between two theories, where the evidence was unsatisfactory; he could decide the case on the basis that the claimant had not proved his case. Secondly, it was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause, unless all the relevant facts were known; that state of affairs did not exist, as the ship had sunk in deep water. Thirdly, the concept of proof on a balance of probabilities had to be applied with common sense. It required a judge, before he found a particular event occurred, to be satisfied on the evidence that it was more likely to have occurred than not. If the judge concluded that the occurrence of an event was extremely improbable, a finding by him that it nevertheless was more likely to have occurred than not did not accord with common sense.”
“ [4] The circumstances of the case were, as Bingham J pointed out in his judgment, novel and striking. Some of the features were particular to a proof of loss by perils of the sea under a policy of marine insurance: see the judgment of Colman J in Glowrange v CGU Insurance (2001) WL720222. The Popi M was a very unusual case and as these two appeals demonstrate, the difficulties identified in that case will not normally arise. In the vast majority of cases where the judge has put before him the issue of causation of a particular event, the parties will put before the judge two or more competing explanations as to how the event occurred, which though they may be uncommon are not improbable. In such cases, it is, as was accepted before us by the appellants a permissible and logical train of reasoning for a judge, having eliminated all of the causes of the loss but one, to ask himself whether, on the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event; such cases are those where there may be very real uncertainty about the relevant factual background (as where a vessel was at the bottom of the sea) or the evidence might be highly unsatisfactory. In that type of case the process of elimination can result in arriving at the least improbable cause and not the probable cause.” “[6] As a matter of common sense it will usually be safe for a judge to conclude, where there are two competing theories before him, neither of which is improbable, that having rejected one it is logical to accept the other as being the cause on the balance of probabilities. It was accepted in the course of argument on behalf of the appellant that as a matter of principle, if there were only three possible causes of an event, then it was permissible for a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of probability and concluded that one was more probable than the others, then, provided that those were the only three possible causes, he was entitled to conclude that the one he considered most probable, was the probable cause of the event, provided it was not improbable.”
“the reason why the amplification factor is so low is because all the tubes are vibrating. You are inputting into this huge bank of tubes, 1,000 tubes, in simple terms, energy at the bottom. That energy is trying to vibrate the tubes. That energy is being shared over 1,000 tubes. If some of the tubes were packed and weren’t able to vibrate, the energy would seek out those tubes that weren’t packed - the cranked tubes where the packing had fallen out - and the amplification factor would be greater.”
“Exclusions 4. In no case shall this insurance cover 4.4 loss damage or expense caused by inherent vice or nature of the subject-matter insured”
“In the event of a claim being made for loss or damage which is alleged to be caused by insufficiency or unsuitability of packing or preparation of the subject matter insured, Underwriters hereby agree that they will not use such alleged insufficiency or unsuitability as a defence against the claim in any case where the packing or preparation was carried out by a party other than the Assured and the insufficiency or unsuitability arose entirely without the Assured’s privity or knowledge. …”
“Overheads are claimed at 12%. We have no way of knowing if 12% is a reasonable figure without extensive analysis of their costs and contributions. However, most costs are presented as net so some overhead would attach. We don’t know if the salary rates are net of all overhead elements.”