Braganza v BP Shipping Ltd & Anor [2012] EWHC 1423 (Comm)

[2012] EWHC 1423 (Comm)Case No 2010 FOLIO 1505
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/05/2012
Before
MR. JUSTICE TEARE
Between
NILOUFER BRAGANZAClaimant(1) BP SHIPPING LIMITEDDefendants(2) BP MARITIME SERVICES (SINGAPORE) PTE LTDDefendant
BELINDA BUCKNALL QC and MICHAEL DAVEY (instructed by Duval Vassiliades Solicitors) for ClaimantGRAHAME ALDOUS QC and CHRISTOPHER WILSON (instructed by Hill Dickinson) for DefendantsHearing Hearing dates: 30 April, 1-3,8-10 and 14 May 2012
Judgment

Mr. Justice Teare :

[1]Mr. Renford Braganza served on board the MV BRITISH UNITY as Chief Engineer. On 11 May 2009 the vessel was in the mid-North Atlantic in the course of a voyage from Brofjorden in Sweden to New York. At some time between 0100 and 0700 he disappeared. It is the case of his widow, the Claimant, that he went out on deck to observe the weather conditions in preparation for the day’s work and fell overboard. She has brought a claim in tort under the Fatal Accidents Act 1976, alleging that her husband’s death was caused by the negligence of the Defendant. She has also brought a claim in contract claiming the death benefits payable to her as his nominated beneficiary under the terms of his contract of employment. The tort claim is in the sum of US$1,325,945 and the contract claim is in the sum of US$230,265. The Defendants, BP The First Defendant is a UK company and is the beneficial owner and operator of the vessel. The Second Defendant is a Singaporean company which provides management services to the First Defendant and employs the officers on bard the vessel. No distinction was drawn between them and so I refer to both collectively as BP. , deny liability for either claim. BP say that Mr. Braganza committed suicide by throwing himself overboard and so there can be no liability in tort. Further, BP say that no benefits are payable under the contract of employment if in the opinion of BP Mr. Braganza’s death resulted from his wilful act. BP formed that opinion and so there is no liability in contract.

The vessel

[2]BRITISH UNITY is an oil tanker, 183m. in length and 32m. in beam with a deadweight of 46,803mt. She is part of BP’s Eastern Fleet and is manned by a crew from the Indian sub-continent. She is registered in Douglas in the Isle of Man but managed from Singapore.[3]One part of the vessel’s layout is particularly relevant to this case. On the main deck between the accommodation block and the engine casing (which are situated aft) is an athwartships alleyway between frames 22 and 25. Two doors from the accommodation block open out onto that alleyway. In the alleyway, just to the portside of the centreline of the vessel, is a hatch which provides access to the engine room below. The hatch is 1.5 m x 1.5m and is bolted in place by 38 bolts. The hatch cover bears the instruction “to be kept closed at sea”. It is common ground that there is no regulation which requires the hatch to be kept closed at sea at all times. At the four corners of the hatch are 4 fixed sockets into which portable stanchions can be fitted to guard off the area with reflector tape when the cover is removed. There are port and starboard cranes which, with some manoeuvring, are able to serve the hatch. Garbage bins are stowed in the alleyway on the portside of the hatch cover. Beyond the garbage bins is a staircase leading to the deck above.[4]Certain areas of the main deck had non-slip paint. They were marked by yellow lines and generally ran longitudinally along the deck edge. There was also non-slip paint either at the base of the staircase or on the bottom rung of the staircase at the portside of the alleyway. The deck edge was guarded by hand rails which were in good order and condition. The rails were 102 cm in height. Below the top horizontal rail were two further horizontal rails, one 15 cm. above the deck edge and the other 72 cm. above the deck edge. The distance between the vertical rails was 120 cm.[5]The vessel is powered by a Hyundai B&W 6 cylinder, 2 stroke diesel engine. Each cylinder is cooled by a cooling water jacket (“CWJ” ) which enables cold water to be circulated around the outside of the cylinder liner. A CWJ weighs about 178 kgs unboxed and 218 kgs boxed.

The events leading up to Mr. Braganza’s arrival on board as chief engineer

[6]In August 2008 the vessel’s main engine suffered a breakdown in the Malacca Strait. The vessel went to Singapore and the main engine was repaired but not effectively. In particular, the seriously damaged cylinder liners were not replaced. The vessel was returned to service.[7]In January 2009 the vessel was visited by a BP engineering superintendent who was critical of the deck and engine departments. It was decided to replace the cylinder liners as soon as was practicable. It was also decided to replace the chief engineer. He was replaced by Mr. Braganza who joined the vessel in Gibraltar on 9 February 2009. Unusually and contrary to BP’s own requirements he was given no shore briefing and so had no knowledge that he was to serve as chief engineer on a vessel which required substantial repair work. He first learnt of the need for such repairs when travelling to Gibraltar to board the vessel with the new Chief Officer. The hand over notes from the previous Chief Engineer listed the work to be done.

Mr. Braganza

[8]Mr. Braganza was by all accounts an able and well qualified Chief Engineer who had served on BP vessels since 2004. He first served on BRITISH UNITY in 2008. In 2009 he was aged 49. He was 1.72m. in height and weighed 58 kg. At a medical examination on 3 February 2009 he was found to be fit both physically and psychologically. He had returned to service with BP after a period of extended leave. He was married and had two children. He was a Roman Catholic. The photographs and correspondence on his personal hard drive which had been retained by BP (probably because it had been placed with other materials relating to BP’s investigation of Mr. Braganza’s disappearance) rather than returned to his widow along with his other personal property indicated a strong and united family. Telephone records show that he rang his family frequently, on average every two or three days, sometimes exceeding his allowed time of 20 minutes. On his birthday, 11 March 2009, he received a birthday card from one of his daughters and well wishes from other members of his family.[9]The family had applied to emigrate to Canada, initially in 2002, but nothing was heard from the Canadian High Commission for several years. The family had also applied to emigrate to Australia but that application was rejected in 2006. The reason for the rejection appears to have been that the Claimant had not been truthful about her qualifications. It is likely that Mr. Braganza appreciated this because the relevant documents were on his personal hard drive. In July 2008 the family moved to Toronto, Canada. It was to facilitate that move that Mr. Braganza had taken an extended leave. He obtained a qualification as an industrial mechanical millwright so that it appears that he planned to work ashore.[10]After joining the vessel in Gibraltar Mr. Braganza received a number of emails from the Claimant. They are an important part of BP’s case on suicide and so I must refer to them. They suggest that the family’s stay in Toronto had been difficult, perhaps because of the cost of living in Toronto compared with India. Thus, on 15 February 2009 (after three telephone conversations of about 20 minutes each on 13, 14 and 15 February 2009) the Claimant said in an email:
“Just keep thanking God for what we have and what the last 7 months have done to us and what lessons we have learnt. I think we did not do bad at all. I think you just got to forget the past 7 months of our lives and start afresh. We should not let whatever happened weigh us down. It was just a monetary loss.”
[11]She encouraged her husband “to make a decision to let go of anything that is holding you down” and expressed her love for him. When cross-examined the Claimant explained that they had used more of their savings than they had planned but said that the problem was not significant.[12]It also appears that Mr. Braganza had expressed to his wife by telephone some concern about the amount of work to be done on board the vessel. Thus in an email dated 17 February 2009 she said:
“Renford, please do not break your head about getting this opportunity on Unity. You were available and the ship needed a good C/E. You are not God. Please remember that. They just trust you will not screw up. So do not! Just relax. Think this is like any other ship, with the same amount of trouble. All ships are under the scanner, they pay you big bucks and they expect the job done, so much as any human can do. So please do not stress yourself thinking of unnecessary stuff.”
[13]Again, she finished by expressing her love and support. On the same day they had a telephone call of some 20 minutes. When cross-examined she explained that Mr. Braganza had not been expecting to be sent on board ship as soon as he was and when he was he was not properly briefed and that he was shocked at the amount of work that was necessary. She said she told him to relax.[14]However, it would appear that in his telephone calls Mr. Braganza continued to express his concerns. For in the Claimant’s email dated 27 March 2009 she said:
“Hi Renford. It was good to hear your voice. Please do not worry, everything will work out just fine, you just got to be committed to doing something. I really cannot figure out what has shaken you out so much that you seem to be so afraid of life. We have everything, at least we on track to getting whatever we need. If we keep crying over spilt milk we will not be able to go on with life. ”
[15]She encouraged her husband to trust in the Lord and expressed her love for him. When cross-examined she said that Mr. Braganza had been talking about the ship and about their monetary losses. It was suggested to her that he had been disturbed by the lies she had told the Australian High Commission. She accepted that her husband had been aware of her “mistake”. However, since the Australian episode had occurred in 2006 it is unlikely that this was the cause of Mr. Braganza’s state of mind.[16]In April 2009 there were telephone calls home between 4 and 24 April 2009. Whatever problem was disturbing Mr. Braganza it continued to do so. On 6 May 2009 the Claimant emailed him as follows:
“It was good talking to you after a long time…..Renford, please be happy for whatever we have, think of people who have half of what we have and are happy. In Toronto you were with us and you seem sad. Now on the ship too you do not seem happy. I thought if you were away from this weather and on your own ground you would feel safe and happy, but that doesn’t seem to be so. We all have problems. But how we face the problem and overcome it is very important. …..I think you are thinking too much about the future and that is eating you. Just concentrate now on coming home as the kids are counting the days for your return and plans to do all type of things when you are down. …..Renford I’m willing to rough it out and make it over here. I wish you could share the same enthusiasm. We knew it was going to be tough, everybody told us so what are you frightened about. D you not want to go back to sea, then be happy over here. Get a job out here and just be happy. We’ll manage. ”
[17]In cross-examination the Claimant said her husband was not happy because their money was running out. They had sold everything. It was difficult to save in Canada. The weather, a different style of life and having to make new friends also made life tough in Toronto. She accepted that her husband was frightened of having no money.[18]Mr. Grahame Aldous QC, counsel for BP, suggested that the Claimant did not give a full and frank account of the difficulties faced by her husband. Counsel for BP relied upon(i) the untruths she had told the Australian High Commission,(ii) the false document about her qualifications which she had been prepared to put before the Court and(iii) the fact she had applied to keep the Australian evidence from the court. He also relied upon a note prepared by the Claimant, at the request of BP, of her last telephone conversation with her husband which had taken place at 0130 on 10 May 2009 in which no mention of any problems was made.[19]Having regard to the Claimant’s correspondence with the Australian High Commission and the false documents about her qualifications which she was prepared to put before the court I must obviously exercise extreme caution before accepting her evidence. It is possible that Mr. Braganza was worried about something other than financial difficulties of living in Canada instead of India. However, the Claimant’s emails do tend to corroborate her evidence that those were the matters troubling Mr. Braganza. I have in mind(i) the reference to the “last 7 months” which coincides with the period after the family’s move to Canada and(ii) the reference to “it is just a monetary loss”. Although the vessel had more repair and maintenance work than he could reasonably have expected it is surprising that the amount of work required was such as to disturb the mind of an experienced, able and respected Chief Engineer. Yet the emails plainly evidence some such concern.[20]My conclusion is that the Claimant was probably telling the truth about what was troubling her husband though she may not have revealed the true extent or nature of their financial problems. She certainly played down their seriousness. I cannot accept her evidence that the problem was not significant. Mr. Braganza’s problems loomed so large in his mind that his wife could not “figure out” what had shaken him so much that he was “afraid of life.” He was thinking “too much about the future and that is eating you.”

The events leading up to the eve of Mr. Braganza’s disappearance

[21]The major works to replace the ME liners were carried out between 18 and 22 April 2009 at a lay by berth in Ferrol, Spain, by shore staff supervised by Mr Williamson, a BP Engineering superintendent but assisted by vessel’s engineering staff under Mr. Braganza’s responsibility. Mr. Williamson, who gave evidence and appeared to be an articulate and knowledgeable engineer, noted that Mr. Braganza took on much of the work himself rather than delegating it to his officers. Mr. Williamson thought that Mr. Braganza’s management skills were less than optimum and advised him as how he might improve them. Thereafter the rebuilt main engine had to be run in which involved tests, checks and inspections. Shortly after leaving Ferrol, whilst the vessel was at Falmouth for bunkers, the no.6 CWJ began to leak. The vessel proceeded from Falmouth to Brofjorden where two spare CWJs had been ordered by Mr.Williamson. On 3 May 2009 the two spare CWJs were loaded on board at Brofjorden and stowed at the port side of the alleyway, lashed to the staircase. A cargo of unleaded gasoline was loaded on board the vessel.[22]As is customary Mr. Braganza wrote up daily orders for his staff in the Chief Engineer’s Order Book. However, the last entry he made was on 18 April 2009. It is possible that entries were not required whilst the vessel was in the lay by berth at Ferrol. But there is no apparent explanation as to why entries did not recommence after leaving Ferrol on 22 April 2009.[23]The vessel sailed from Brofjorden with orders to proceed to Jebel Ali. On 5 May 2009 an engineering superintendent sent an email to Mr. Braganza in the following terms:
“I would like you to carry out a scavenge inspection/ring inspection in around 6 days’ time. It may be prudent to carry out the ME jacket replacement at the earliest opportunity ie when stopping for scavenge inspection dependent upon charterers’ instructions and discharge ports dates etc. Proper planning should ensure this is carried out in around 4-5 hours.”
[24]Replacing the leaking CWJ would first require the spare CWJs which had been stowed on the main deck in the alleyway to be lowered into the engine room from the main deck, using a crane, though the hatch in the alleyway. Once the CWJs were in the engine room it was then necessary to stop the main engine before removing the relevant cylinder head and replacing the old CWJ with a new CWJ.[25]Mr. Braganza replied to the superintendent, also on 5 May 2009, as follows:
“Will carry out the scavenge inspection in about 6 days time and will try to carry out the ME jacket replacement at the earliest opportunity, maybe while taking bunkers, will do out best to complete it in the shortest time possible. ”
[26]It is likely that Mr. Braganza envisaged bunkering at Gibraltar or Malta. It is also likely that he understood that it was important from the point of view of the vessel’s performance record that the amount of down time should be limited as much as possible.[27]On 7 May 2009 BP instructed the vessel to proceed to New York for orders. The vessel, which was in the Bay of Biscay, therefore aborted her southerly course to Gibraltar and headed on a westerly course across the Atlantic.[28]On 9 May 2009 the weather worsened during the day from force 5 to force 8. At 2000 the log recorded a rough sea and high swell and shipping seas on deck. In the evening there was a party on board the vessel to celebrate the vessel’s return to good condition. Bingo was played and Mr. Braganza was the caller. He expected to be relieved as Chief Engineer after the vessel had reached the United States. The Chief Officer, who gave evidence in a straightforward manner, answering questions when he knew the answer and declining to do so when he did not, said that Mr. Braganza made the party a lot of fun.[29]During 10 May 2009 the weather had begun to improve. At 0400 there had been logged a northerly wind of force 6 with rough seas and a heavy swell. By 2000 the wind was logged as southerly, force 3 with a moderate sea and swell. In the evening at 1900 there was a meeting on board the vessel to discuss the next day’s work. It was attended by the Master, the Chief Officer, Mr. Braganza and the Second Engineer. The product of the meeting was the “Vessel Daily Work Plan” for 11 May 2009. The activities planned for the next day included “lowering liner jacket to engine room from main deck” and “M/E scavenge inspection and liner jacket renewal”. The meeting lasted about one and half hours. According to the Master, who gave evidence fairly without seeking to exaggerate or be obstructive, Mr. Braganza wanted to change the CWJ “because every day it was leaking and he wanted to do that before the vessel arrived in the US.” The Master was of the view that the weather would be slightly better the next day (the forecasts received by the vessel indicated that the weather was improving) and that by altering course and keeping the wind on the bow the bridge would provide shelter when lifting the CWJ. Both the Master and the Chief Officer described Mr. Braganza as “normal” and participating in the meeting as on any other day. The Chief Officer recalled that at the meeting it was discussed that if there was any rolling or pitching or heavy winds the “job” would not be undertaken. He also recalled that it was agreed that “we” would conduct a weather check in the morning. When asked whether it was intended that all four officers who attended the meeting would check the weather in the morning the Chief Officer said that it was intended that he and the Master would check the weather in the morning.[30]After the meeting members of the crew, including Mr. Braganza, watched a comedy film.[31]At about 2330 on 10 May 2009 the Master and Mr. Braganza discussed the weather conditions for the next day, initially in the Master’s cabin and then in Mr. Braganza’s cabin. This was part of the planning for the next day and Mr. Braganza was preparing to write an email to BP and wanted to know what he should say about the weather. The meeting between the Master and Mr. Braganza lasted about an hour. They discussed the weather with the assistance of a weather routing report which had been received on board the vessel and sent to Mr. Braganza’s computer by the Master. The software available enabled the weather to be predicted for 1000 on 11 May 2009. That indicated that in the area where the vessel was likely to be at that time that there would be a west south westerly wind of force 4. The software also enabled the swell to be predicted but if such a prediction was made it does not appear to have been recorded. The master was of the view that the expected weather would be “OK” to allow the lowering and replacement of the CWJ. However, he expected that the Chief Officer would carry out a Job Hazard Analysis (“JHA”) the next morning.[32]At 2324 on 10 May 2009 Mr. Braganza emailed Mr. Farquhar, an engineering superintendent, as follows:
“We will be completing 250 hrs of running in of the main engine by today and I intend to stop the main engines tomorrow and do a scavenge inspection before we reduce the lubrication of the cylinders to 1.2 g/Kwh as per the running in schedule. I would also like to change the liner jacket of the #6 unit at the same time that we are stopped to do the scavenge inspection, safe weather permitting. The weather at present is not too good, but as per the weather routing service the weather is expected to be slightly better tomorrow. The next good weather is expected to be on the 13th. I would prefer to complete the jacket renewal while we are at sea, rather than to wait when we are in port and have to immobilise the engines. I trust we can go ahead with the above stoppage, fyi, we have instructions from operations to proceed to New York for orders/bunkers.”
[33]Some 9 minutes later Mr. Farquhar replied as follows:
“If weather and schedule permits I would go ahead with the liner jacket exchange.”
[34]Mr. Williamson, who had supervised the repairs at Ferrol, also received Mr. Braganza’s email. He intended to telephone him the next day to suggest that he think about the operation “because obviously the lifting of a one and half tonne cylinder head in any sort of swell would be risky and any bit of water leaking out for a short time is not a big issue.”[35]Before leaving Mr. Braganza’s cabin at about 0030 the Master and Mr. Braganza checked the India Premier League cricket results on the latter’s computer. The Master described Mr. Braganza’s behaviour as normal.[36]At 0100 on 11 May 2009. Mr. Braganza sent an email to the Second Engineer concerning the entries to be made in the engine log book. Mr. Braganza was not seen again.[37]A photograph of his desk in his cabin taken after his disappearance as part of the BP investigation shows his reading glasses on top of a Man Diesel letter concerning cylinder lubrication with some manuscript notes. It is an image of a hard working and conscientious engineer.

Mr. Braganza’s disappearance and the events of 11 May 2009

[38]At 0700 on 11 May 2009 Mr. Braganza’s cabin door was noted to be open. It was habitually open unless he was sleeping. It is therefore to be inferred that Mr. Braganza had left his cabin before 0700. The bed linen was scattered which suggested that it had been slept in.[39]The Chief Officer was up by 0700 and had breakfast at about 0730. At just before 0800 on 11 May 2009 the Chief Officer went out on to the main deck, portside, to carry out a risk assessment. This involved assessing the weather and the ship’s behaviour. He also inspected the equipment to be used including the crane, the sling and the tools to be used in opening the hatch in the alleyway. The inspection took about 20 minutes. He called the Master on a walkie/talkie. Having also assessed the weather from the bridge the Master agreed that the job could be carried out. The Chief Officer went to the Cargo Control Room and entered up the JHA on the computer and printed out a copy. The copy was taken to the Master for his approval.[40]Neither the computer entry for the JHA nor the printed out copy of the JHA has survived. The former was probably overwritten by subsequent JHAs and the latter was thrown away because it was not required to be kept after the job in question had been completed. The deck log records that the wind at 0800 was west south westerly force 4 with a moderate sea and 2 metre swell (the direction of the swell having changed between 0400 and 0800). The recorded conditions at 1200 were similar but with a slightly increased swell of 2.5m. The strength and direction of the wind were consistent with what had been predicted by the weather routing service. It was overcast with moderate visibility. The Chief Officer’s recollection was that the vessel was neither pitching nor rolling. The swell was on the port bow and the Chief Officer was able to walk comfortably on deck. The Master’s recollection was that the vessel’s course had been altered a little to ensure that the wind was a point or so on the port bow. This was to minimise rolling though he accepted that rolling could not be eliminated completely. He accepted that there was some pitching. In an interview with BP he had said that “in force 4-5 we are also very much pitching” but in that passage he does not appear to have been referring to the conditions at 0800 on 11 May 2009.[41]Having regard to the log entries and the Master’s evidence it is unlikely that there was no pitching or rolling as suggested by the Chief Officer. However, since the Master and Chief Officer were aware of the need for the weather conditions to be such as to enable the planned operations to be conducted in safety it is more likely than not that the extent to which the vessel was pitching or rolling was minimal, or at any rate not such as to make the planned operations unsafe.[42]The operation of lowering the CWJs into the engine room began shortly after 0800 and was safely completed by about 0930 on 11 May 2009, which is another indication that the extent to which the vessel was pitching and rolling must have been minimal. The operation was conducted by the Master, Chief Officer and Second Engineer.[43]Shortly thereafter the Master announced that Mr. Braganza was missing. A search was made on board but he was not found. The vessel was turned round and a search and rescue operation was conducted but Mr. Braganza was not found. As a result the operation of changing the CWJ was not carried out until some days later when the vessel was in Savannah.

The cause of Mr. Braganza’s disappearance

[44]The finding of the Isle of Man Ship Registry was that Mr. Braganza was lost overboard, presumed drowned. Nobody suggests otherwise. Nor does anyone suggest foul play.[45]Before reviewing the opposing cases as to how and why he was lost overboard it is necessary to say something about the burden of proof and how the court should approach the task of fact finding in a case such as the present when there is no direct evidence of the cause of Mr. Braganza’s disappearance.[46]So far as the claim under the Fatal Accidents Act is concerned the Claimant has the burden of proving on the balance of probabilities that Mr. Braganza lost his life having accidentally fallen overboard as a result of the negligence of the Defendant. The Defendant has alleged in defence of that claim that Mr. Braganza in fact committed suicide. If the Claimant fails to persuade the court that it is more likely than not that Mr. Braganza fell overboard accidentally the claim in tort must fail. In considering whether the cause of Mr. Braganza’s death was accident or suicide the Court must bear in mind that suicide, although not a crime in English law, is “still a drastic action which often leaves in its wake serious social, economic and other consequences”; per Watkins LJ in R v West London Coroner ex parte Gray [1988] Q 467 at pp.477-8. It was therefore common ground that before a finding of suicide is made there must be evidence of sufficient cogency commensurate with or proportionate to the seriousness of the finding.[47]If the evidence before the court leaves it in doubt as to how Mr. Braganza lost his life then the Claimant will have failed to prove her case. The court is not bound to make a finding one way or the other with regard to the facts alleged by the parties; see The Popi M [1985] 2 Lloyd’s Rep. 1 at p.6 per Lord Brandon. Where two improbable causes are suggested it is not open to the court to conclude that the least improbable or least unlikely is the cause. For that would be to reach a conclusion as to the least improbable cause, not the probable cause. Where two causes are suggested neither of which is improbable the court will usually be able to conclude, having rejected one, that the other is the cause on the balance of probabilities; see Ide v ATB Sales [2008] EWCA Civ 424 at paragraphs 4 and 6 per Thomas LJ.[48]I was referred to Kiani v Land Rover Limited [2006] EWCA 880 in which Waller LJ said that he did not think it “false logic to reason that where only two possibilities are under consideration both of which seem unlikely, if one seems much less likely than the other, the less likely can be discounted thus making the first likely to have happened on the balance of probabilities.” If by “unlikely” Waller LJ meant improbable there is some difficulty in reconciling the statement with the Popi M and Ide v ATB Sales. I consider that I should follow the approach of the Court of Appeal in Ide v ATB Sales which is the later decision and which discusses and follows the Popi M.

The case for an accident

[49]The case that Mr. Braganza fell overboard as a result of an accident is, in essence, that it is more likely than not that he got up shortly before 7 am on 11 May 2009 to inspect the weather conditions himself on the main deck with a view to deciding whether they were safe for the planned lowering of the CWJ into the engine room and replacing the old CWJ. That case is supported by the likelihood that Mr. Braganza would be concerned with whether or not the weather conditions were suitable for the planned work and by the fact that he had demonstrated that concern by discussing the weather with the Master the night before for about one hour and by sending an email to Mr. Farquhar which discussed the expected weather. If Mr. Braganza did go out on deck for that purpose then the likely explanation for his disappearance is that he must have slipped or lost his balance and in some way gone through or over the railings at the deck edge. It is most unlikely that, having gone on deck to inspect the weather, he then decided to take the opportunity to commit suicide by jumping overboard. Suicide is in any event unlikely given that over the previous weekend he had been happily socialising with his colleagues at the party on 9 May 2009 and, on the eve of his disappearance, carefully considering the expected weather with the Master in preparation for the next day’s work. His appearance to his colleagues had been entirely normal.

The case for suicide

[50]The case for suicide is that Mr. Braganza went out on deck at some time between 0100 and 0700 on 11 May 2009 and jumped overboard. It arises from the content of the Claimant’s emails to him which demonstrate that he was unhappy and depressed by his financial situation following the family’s move to Canada and by his work on board the vessel. The Claimant’s perception that her husband was “afraid of life” gives rise to the realistic possibility that he decided to take his own life. His unusual state of mind is also indicated by the fact that he had stopped making entries in the Chief Engineer’s Order Book. (Other suggested record keeping deficiencies were noted but this was the clearest example.) The alternative explanation of accident is fanciful and lacking in realism because no mechanism can be envisaged that would cause Mr. Braganza to fall through or over the deck edge rails, assuming that he had slipped or lost his balance. In circumstances where suicide is the only realistic explanation of Mr. Braganza’s disappearance that must, on the balance of probabilities, have been what happened.

Discussion of the cause and conclusion

[51]The fact that Mr. Braganza demonstrated a keen interest in the weather the night before his disappearance suggests that he might well have decided to check the weather for himself early the next morning. It had been agreed at the work planning meeting that the weather would have to be checked the following day and Mr. Braganza had discussed the likely weather with the Master at their meeting. However, neither the Master nor the Chief Officer thought that that is what Mr. Braganza might have done, though the Master accepted that it was not impossible that he might have done. The suitability of the weather conditions for the operation of lowering the CWJ into the engine room was a matter for the deck officers to assess. Moreover, it is arguable that Mr. Braganza, if interested in the actual weather conditions, would be interested in the conditions after the CWJ had been lowered into the engine room. He would wish to consider whether the motion of the vessel in the seaway, after the CWJ had been lowered into the engine room, was safe for the work of replacing the CWJ in the engine room. Thus any inspection of the weather conditions by Mr. Braganza would not have taken place before 0700 but at some time after about 0930.[52]The Master said in re-examination that if the vessel was pitching and rolling there was a standing instruction that if an officer wished to go out on deck before normal working hours, ie before 8 am, he must inform the bridge. However, there was no evidence of any such written standing instruction. By contrast there was in evidence a written order that in heavy weather, that is, force 6 or more, the crew were to be warned to avoid upper deck areas made dangerous by the weather. This order had been signed by the officer of the watch for 2000 and 2400 on 9 May 2009. Neither the Chief Officer nor the Master mentioned in their witness statements any requirement to inform the bridge before going out on deck before 0800. There is no evidence that the Chief Officer informed the bridge before he went out onto the main deck just before 0800. Having regard to the totality of the evidence I do not accept that there was a standing instruction that officers must not go out on the main deck when the vessel was pitching or rolling without informing the bridge. If there had been such an instruction it would have been in writing and would have been mentioned by the Master and Chief Officer in their witness statements.[53]I accept that there was no requirement for Mr. Braganza to check the weather conditions himself in preparation for the lowering of the CWJ into the engine room. Although the Chief Officer used language in his statement which suggested that the Master and the three officers who attended the work planning meeting, including Mr. Braganza, would check the weather in the morning it is probable that he meant only that he and the Master would check the weather. However, Mr. Braganza’s keen and understandable interest in the weather on the eve of his disappearance suggests that he may well have decided to check the weather himself on the morning of 11 May 2009. The Master accepted in cross-examination that Mr. Braganza would be interested in the weather on the morning of 11 May 2009 if the hatch cover to the engine room was to be removed. Checking the weather shortly before 7 am is not inexplicable. He might have wished to check the weather at that time in order to be able to discuss it at breakfast with the other officers.[54]Thus there is, in my judgment, a real possibility that Mr. Braganza went out on deck shortly before 0700 to assess the weather himself. I am not, however, persuaded that it is probable that he did so or more likely than not that he did so. That is because there was no requirement that he should do so and the expectation would have been that the Master and Chief Officer would assess the weather prior to the lowering operation as they in fact did.[55]Whilst even an experienced mariner might slip or lose his balance on deck it is very difficult to envisage how Mr. Braganza could fall through or over the deck edge railings, having slipped or lost his balance. It is true that he was not a large man but falling though the gaps in the railings seems improbable. If he was in danger of toppling over the railings his natural instinct would be to grab the rails to prevent that happening. The Chief Officer who went out on deck just before 0800 and the Master who observed the weather from the bridge found it difficult to see how the weather conditions could have caused Mr. Braganza to fall overboard. Captain Wiseman, the expert called by BP, was minded to say that accidentally falling over board was impossible.[56]But accidents are, in their nature, often difficult to predict. In Kiani v Land Rover Limited [2006] EWCA Civ 880 the trial judge (see paragraph 22 of the judgment of Waller LJ) found it hard to visualise how an accident could have happened in that case but bore in mind that “experience shows that accidents do happen in the most unlikely of ways.” I do not consider that an accidental fall overboard can be said to be impossible. The mariners on the BP Investigation Team were unable to discount that possibility.[57]In the result there is, in my judgment, a real, not a fanciful, possibility that Mr. Braganza fell overboard. It is not however probable that he did so or more likely than not that he did so.[58]But there is also, it seems to me, a real, not a fanciful, possibility that he committed suicide. Whatever Mr. Braganza told his wife by telephone caused her to think that he needed encouragement and support to face the future. Some of the language in those emails is indeed striking, especially with hindsight:
“I really cannot figure out what has shaken you out so much that you seem to be so afraid of life” and “I think you are thinking too much about the future and that is eating you.”
The oddity that he stopped making entries in the Chief Engineer’s Order Book after 18 April 2009 suggests that something had gone awry. However, suicide is no more than a possibility. It is not, in my judgment, more likely than not to have happened. Many people have financial worries and worse and do not commit suicide. Mr. Braganza had no history of depression or mental illness. Moreover, his participation in the daily work meeting on 10 May 2009 was entirely normal. His discussion with the Master about the weather, the open Man Diesel maintenance letter on his desk with his reading glasses on top and the emails sent late at night to Mr. Farquhar and the Second Engineer all paint a picture of a conscientious engineer with his mind on his job. He left no suicide note. Given the serious nature of a finding of suicide I do not consider that the evidence before the Court is sufficiently cogent to warrant such a finding on the balance of probabilities.[59]There are therefore two possible explanations of Mr. Braganza’s disappearance. I am unable to dismiss either as an unrealistic possibility. I am also unable to find that either is probable or more likely than not to have happened. I am unable to find that one suggested cause is less improbable or less unlikely than the other. Each is supported by some evidence. Accident is supported by the evidence of Mr. Braganza’s interest in the weather the night before, which suggests that he may well have gone out on deck before 0700 to check the weather himself. If he did so, suicide is most unlikely. Suicide is supported by the evidence of the emails and his unexplained failure to make entries in the Chief Engineer’s Order Book. Even if I were able to say that one suggested cause was less improbable or less unlikely than the other that would not identify the probable cause, only the least improbable or the least unlikely cause; see The Popi M and Ide v ATB Sales above.[60]The court is thus unable to make a finding as to the cause of Mr. Braganza’s death. The present case is an example of the type referred to by Thomas LJ in Ide v ATB Sales where there is “very real uncertainty” about what happened. No-one saw Mr. Braganza go on deck. No-one saw him go overboard. As Captain Robertson of the BP Investigation team said:
“We were presented with a puzzle. One day he was there. The next he was not.”
It is perhaps a rare case when a finding cannot be made on the balance of probabilities but this is, in my judgment, one such case.[61]It follows that the Claimant is unable to prove that her husband accidentally fell overboard and that the claim in tort under the Fatal Accidents Act must fail.[62]It is unnecessary to consider further the issues of breach of duty and causation. However, I shall set out in short form what my decisions on those issues would have been.

Breach of duty

[63]It was suggested that the operation of lowering the CWJ into the engine room and replacing the CWJ ought not to have been planned for mid-Atlantic, first, because such work was not required to maintain the safe and efficient running of the vessel as required by paragraph 2.1 of the Control of Work (“COW”) procedures and, second, because the hatch in the alleyway bore the warning “To be kept closed at sea”. It was also suggested that the Master was at fault on 10 May 2009 for allowing the operation to be planned for the next day having regard to the risks involved in the planned work in the event of bad weather.[64]I was not persuaded that there was a breach of duty by BP. i) It is true that there was no pressing need to replace the CWJ. This was reflected in Mr. Williamson’s thoughts on seeing Mr. Braganza’s email sent at 2324 on 10 May 2009. In cross-examination he confirmed that there was no urgency in replacing the CWJ. But the nature of maintenance is that it is done timeously so as to prevent there being any urgent need for repairs or renewals. The no.6 CWJ had been noted to be leaking in Falmouth and continued to leak every day with the result that Mr. Braganza wished to replace it. He must, it seems to me, have judged that replacement of the CWJ was required to maintain the safe and efficient running of the vessel. Miss Belinda Bucknall QC, counsel for the Claimant, suggested that he only decided to go ahead with replacing the CWJ at the same time as the scavenge inspection because he wished to minimise the vessel’s downtime and satisfy BP’s commercial performance requirements. I accept that he was aware of the desirability of minimising down time and of BP’s commercial performance requirements for the vessel but his own emails and the evidence of the Master indicate to me that he wished to replace the CWJ because it was a prudent step to take with regard to the maintenance of the vessel. ii) Mr. Braganza’s own preference was to do the job at sea rather than in port. His email to Mr. Farquhar sought permission to do the job at sea. Mr. Farquhar gave permission “if weather and schedule permits”. Captain Hammond, the expert called by the Claimant, considered that the job should not have been done at sea and it can be argued that a laden tanker ought not to be without motive power at sea for period of several hours unless there was a pressing need to close down the main engine. But Captain Robertson, the marine incident investigator who was a member of the BP Investigation Team, did not think that. Nor did the Master. The BP report noted that the lowering of the CWJ into the engine room involved the opening of the main deck hatch into the engine room, that it was not a routine activity and that awkward loads were involved. Yet there is no suggestion in the BP Report that it was inappropriate to carry out the work at sea. Had it been unsafe for a vessel to be without power in the middle of the Atlantic in good weather I would have expected to have found some suggestion to that effect in the BP Report but there is none. The Investigation Team was sufficiently independent to be critical of the fact that Mr. Braganza had received no shore briefing before boarding which was contrary to the requirements of BP’s Fleet Operating Management System. Captain Wiseman considered that the work could be done in the middle of the ocean if the weather was satisfactory. Indeed, he thought that the vessel was more clear of danger in the middle of the ocean than when close to a port. Mr. Williamson said in cross-examination that the operation could be done in moderate weather. In the result I was not persuaded that it was unsafe and therefore negligent to plan to do the work at sea. iii) The notice on the hatch -“To be kept closed at sea”-did not reflect any regulation that the hatch should never be opened at sea. In so far as the notice reflected good seamanship the question is what good seamanship required and what the notice meant. There was a difference of opinion between Captains Hammond and Wiseman as to what good seamanship required. The former thought good seamanship required that the hatch should never be opened at sea. The latter thought that good seamanship required that it should not be opened at sea unless there was a requirement to open it. The BP Investigation Team must have seen the notice when on board the vessel in New York but made no mention of it. It cannot have struck them as an instruction to be followed literally. Mr. Williamson said in his evidence that the instruction meant that the hatch should not remain open at sea (for example for ventilation purposes) but that it could be opened for the loading of stores into the engine room. I was not persuaded that good seamanship requires that the notice on the hatch should be understood literally so that on no account must it be opened at sea. Good seamanship probably requires that it only be opened at sea if there is a good reason for doing so and it is safe to do so. Otherwise it must be kept closed. That, in my judgment, is the sense in which the notice should be understood. iv) The work involved in replacing the CWJ involved risk to personnel (eg injury from swinging loads) and to the vessel (eg water entering the engine room) in the event that it was carried out during bad weather. The Master formed the view that the weather on the next day would be slightly better than it had been and planned to do the work if the weather conditions the next day were safe for the work to take place. The weather routing forecast suggested a west south westerly wind of force 4 which proved to be correct for 0800 (although the wind had strengthened to force 5 at 0400 and thereafter the direction of the swell changed between 0400 and 0800 and increased in height between 0800 and 1200). In the event the operation of lowering the CWJ into the engine room was conducted in safety. There is no evidence that the sea and swell conditions on 11 May 2009 rendered the operation unsafe. In circumstances where the Master’s prediction proved to be accurate a strong case is required to show that the material before him in fact required him to have said on 10 May 2009 that the work should not be carried out the next day rather than say, as he did, that it should go ahead subject to an assessment of the weather conditions the next day. v) The case against the Master in closing submissions was not based upon the views of Captain Hammond who had made an error in his analysis of the wind but on the Meteo France forecasts received by the vessel. In particular, the Meteo France forecast received on 10 May 2009 forecast winds of SW force 4-5, occasionally force 6, moderate or rough, rain or showers, fog patches with a warning (as was usual in Meteo France forecasts) of gusts up to 40% stronger and waves up to twice the significant height. This forecast is of conditions in which it would probably not be safe to carry out the planned operations. The Master, in his discussions with Mr. Braganza, referred to the weather routing forecast rather than to the Meteo France forecasts which had been received on the bridge but which could not be forwarded to Mr. Braganza’s computer in his cabin. However, in circumstances where there was to be a weather inspection before work commenced on 11 May 2009 it seems to me impossible to criticise the Master’s decision. The vessel was steaming away from the area of low pressure and the weather had been improving during the day. The master’s decision was not that the work would take place the next day but that there should be an inspection of the actual weather before a decision was finally taken to do the work. That seems to me to have been a prudent decision. vi) Much was said in evidence and submission concerning the proper operation of BP’s Control of Work (“COW”) procedures including the requirements for JHAs, risk assessments using the matrix attached to the COW manual and Permits to Work. It was suggested that the procedures were not properly understood and that that was illustrated by the defective manner in which the Daily Work Plan was drawn up. That suggestion appears to be justified to some extent. Indeed, Captain Wiseman accepted that a Permit to Work ought to have been issued. However, a JHA was conducted by the Chief Officer and reviewed by the Master before the work commenced. It was suggested that this was carried out hastily and not in the required manner, particularly by the Master. But unless it was unsafe to carry out the work at sea or in the conditions which prevailed on 11 May 2009 these further criticisms add nothing to the Claimant’s case.

Causation

[65]If, contrary to my view, Mr. Braganza lost his life by accidentally falling overboard and there was a breach of duty by the Master in not banning the CWJ operation on 10 May 2009 that breach of duty did not cause the loss of Mr. Braganza’s life. The Master’s duty was to exercise reasonable care to ensure that no member of the crew was harmed in the course of the CJW operation eg by a swinging load or by falling into the engine room through the open hatch. Mr. Braganza did not lose his life by a hazard in respect of which the Master was obliged exercise care to avoid. It was not suggested that the Master owed a duty to direct other officers not to go out on deck to inspect the weather conditions. It is true that Mr. Braganza would not have lost his life but for the Master’s decision that the CWJ operation could go ahead, weather permitting. But the “but for” test is not a sufficient test of causation. The type or kind of loss which is sustained must be within the type or kind of loss which is reasonably foreseeable and which the Master has a duty to avoid by the exercise of reasonable care. It was not reasonably foreseeable that if Mr. Braganza went out on deck to check the weather on the morning of 11 May 2009 that he would fall overboard. If that had been foreseeable the Master would have been under a duty to warn officers and crew not to go out on deck but no such duty was alleged.[66]Miss Bucknall relied upon the decision in Jolley v Sutton LBC [2000] 1 WLR 1082 but I do not consider that that assists the Claimant. The accident which happened in that case was held by the trial judge to have been reasonably foreseeable, which finding the House of Lords held should not have been disturbed by the Court of Appeal; see pp.1087-1089 per Lord Steyn with whom Lords Browne-Wilkinson and Mackay agreed, see pp.1083-1084.

Damages

[67]The Claimant’s schedule of loss was only finalised during the trial. BP’s counter-schedule was provided at a later stage in the trial. There is a considerable disparity. The Claimant claims $1,325,945. BP allows $325,125 which includes some concessions. Written submissions were provided in support of the opposing schedules but there was no time for any oral submissions. The most significant differences are past and future loss of financial dependency and general damages for pain and suffering. Mr. Aldous identified 12 issues for determination. I have considered whether the proper course is to do my best to assess quantum on the basis of the written submissions or whether I should leave the quantum to be assessed at a later date in the event that a successful appeal by the Claimant requires it to be assessed. In circumstances where(a) there was no cross-examination on matters of quantum,(b) there were no oral submissions on quantum and in particular no response to the written submissions of the Defendant in support of the counter-schedule and(c) the difference between the parties’ cases is substantial I consider that the better course is that quantum should be assessed by the court if and when it becomes necessary and after the Claimant will have had an opportunity to respond to the written submissions in support of the counter-schedule.

The claim in contract

[68]The relevant provisions are as follows:7.1 Sick Pay 7.1.1 When an Officer becomes unfit(i) to return to duty onboard the Vessel following any period of leave, or(ii) to continue with his duties onboard the Vessel, due to sickness or injury, he will be eligible for Company sick pay provided always that he has completed six (6) months continuous service. Sick pay is payable from the day after the Officer’s leave ends or from the date on which he is discharged from the Vessel as the case may be. Sick pay is payable subject to the conditions set out below. ………. 7.1.3 Company sick pay is not payable in the event of an illness or injury resulting from self inflicted injury, attempted suicide, failure to follow the Company’s safety policies and procedures or those in force onboard the Vessel, breach of the Company’s reporting and/or certification procedures and/or sub-Clauses 8.3.1, 8.4 and 14.6.7.2 Disability 7.2.1 If the Officer suffers permanent disability as a result of an accident whilst performing the Services then, subject to the conditions set out below, the Officer shall, receive compensation of a maximum of the sum specified in Appendix A (as amended from time to time) or a proportion of such sum calculated pro rata according to the Scale of Compensation set out in Appendix C, as the same may be amended from time to time (the “Scale of Compensation”). …….. 7.2.4 The compensation scheme operates in relation to accidents regardless of any fault of the Company. No compensation shall be payable as a result of any injury which is self inflicted, attempted suicide, the Officer’s failure to follow safety policies and procedures, breach of sub-Clauses 8.3.1, 8.4 or 14.6, or by participation in a dangerous or hazardous sport, pursuit or activity.7.3 Death Benefits7.3.1 If the Officer dies whilst in the employment of the Company, compensation shall be payable. Such compensation shall be equivalent to three times the Officer’s annual Salary, or, if higher, the total sum which would be payable pursuant to the provisions (as amended from time to time) of Article 24 (Loss of Life, Death in Service) of the ITF Approved Standard Agreement for Indian Officers as onboard the Vessel from time to time. If death occurs as a direct result of an injury for which compensation has already been paid under sub-Clause 7.2 above, then the payment under this sub-Clause 7.3.1 in respect of death shall be subject to deduction of any such sum already paid.7.3.2 Any sum payable under sub-Clause 7.3.1 shall be paid to the Nominated Beneficiary of the Officer as stated on page 4 of this Agreement, or as amended by the Officer from time to time. The obligation is on the Officer to ensure at all times that the Company has full details of the Nominated Beneficiary and/or that the Officer communicates to the Company any change of Nominated Beneficiary by notice in writing through the manning Office. In the absence of a Nominated Beneficiary, or should the Nominated Beneficiary have pre-deceased the Officer, or if, having made reasonable endeavours, the Company is unable to trace the Nominated Beneficiary, the Company shall pay the sum to such person as it shall, in its absolute discretion, decide. The Officer accepts and agrees that the Company’s decision in this respect will be final. 7.6 General ……. 7.6.3 For the avoidance of doubt compensation for death, accidental injury or illness shall not be payable if, in the opinion of the Company or its insurers, the death, accidental injury or illness resulted from amongst other things, the Officer’s wilful act, default or misconduct whether at sea or ashore, or if the death, accidental injury or illness originated from a condition which was deliberately concealed or pre-existing at the time of commencement of employment or prior to joining the Vessel.[69]The Claimant’s claim is based upon clause 7.3 of Mr. Braganza’s contract of employment. Pursuant to that clause she is entitled to death benefits calculated in accordance with that section. BP’s defence to the claim is based upon clause 7.6.3. BP says that it formed the opinion that Mr. Braganza’s death resulted from his wilful act, namely, suicide.

The question of construction

[70]Miss Bucknall submitted that clause 7.3 contains no exceptions to BP’s liability to pay death benefits unlike its obligations under clause7.1 and7.2 which provide exceptions to BP’s liability to pay sick pay and compensation for disability. The exceptions to clauses 7.1 and 7.2 are self-inflicted injury and attempted suicide. It is therefore submitted that the words “wilful act, default or misconduct” in clause 7.6.3 are intended to mean something different from suicide. It was further submitted that “wilful” takes its meaning from the words it qualifies and from its context. In clause 7.6.3 the word qualifies default or misconduct. That points to a failure to comply with BP’s policies on conduct, for example, its policy on drugs, as does the fact that the clause is dependent upon BP forming the relevant opinion. Thus “wilful” means blameworthy in some relevant sense between employer and employee. On BP’s case Mr. Braganza took his own life because of an unhappy personal life which is not blameworthy as between BP and Mr. Braganza.[71]Mr. Aldous submitted that suicide is a wilful act because it is deliberate and intended to bring about death. If some form of misconduct is required that requirement is satisfied. Suicide deprives the employer of the employee’s services which the employee had promised to provide to the employer.[72]In my judgment it is difficult to envisage a clearer example of a wilful act than suicide. The act is deliberate and the consequences are intended. Although suicide could have been made an express exception the fact that the draftsman did not do so does not, in my judgment, require clause 7.6.3 to be given anything other than its natural meaning.[73]It is said that the words “for the avoidance of doubt” are meaningless in the case of clause 7.3 because there is no doubt with regard to suicide which needs to be clarified in circumstances where suicide is not an excluded cause of death. I do not accept that such words are meaningless. It is an obvious question whether death benefits can be claimed in the event of suicide. Clause 7.6.3 provides the answer to that question.[74]Miss Bucknall relied upon the approach of the Court of Appeal in CP v Royal London Mutual Insurance Society Limited [2006] EWCA 421 and 1 CLC 576 where the court had to construe “any wilful, malicious or criminal acts” in the context of an insurance policy which excluded liabilities arising from such acts. However, I do not consider that that case assists the Claimant. Tuckey LJ said in that case:
“Obviously if the act is deliberate and intended to cause damage of the kind in question it will be within the exclusion.”
The facts of that case are also materially different. A child had lit a fire which damaged a mill. The child had acted stupidly but, having regard to his age and other matters, could not be described as reckless. He was unaware of the risk that the mill might burn down. Thus the act of lighting the fire was deliberate but the consequences were not intended. By contrast suicide is an act the consequences of which are intended.[75]If, however, I am wrong in my construction of clause 7.6.3 and to be wilful the act must be in some sense blameworthy as between employer and employee then it seems to me that the act of a ship’s officer which disables him from serving his employer as he had contractually promised to do is in the required sense blameworthy.

BP’s opinion

[76]It is common ground that if BP forms the opinion that death resulted from a wilful act of the employee, namely, suicide, that opinion must be reasonable. There was however some debate as to what is meant in this context by a reasonable opinion. Before considering that question I will set out what BP did in this case.[77]BP instituted an enquiry or investigation into the disappearance of Mr. Braganza pursuant to its Group Defined Practice which requires any fatality at a BP site (whether on board ship or not) to be investigated. The purpose of such investigation is to identify the cause of the incident, to identify which BP systems have failed and to make recommendations to improve BP’s systems. The underlying purpose of the investigation is to reduce risk across BP’s operations. Thus the terms of reference of the investigation were to “investigate the relevant circumstances leading up to the loss of Mr. Braganza, identify if possible the root causes of the incident and identify any changes required to the BP Shipping Safety Management System”. The investigation team consisted of 5 persons, namely, Colin Reed, a senior manager from Refining and Marketing, Lindsay Callard, a manger from Exploration and Production, Captain Colin Shoolbraid, a Marine Standards Superintendent, Ms.Terry van der Poll, a ship QA auditor and Captain Ian Robertson, a marine Incident Investigator. The team flew to New York to meet the vessel and crew. The team boarded the vessel on 18 May 2009.[78]The team had an investigation strategy which provided for interviews of all those on board the vessel, photographing and logging of documentation, a physical inspection of the vessel, interviews of shore personnel in London and in Singapore and an analysis of the data, collecting such additional evidence as was necessary and the production of a report. The process took about 4 months.[79]Although “any possible BP influence” over Mr. Braganza’s state of mind was pursued the team did not pursue the details of any personal problems beyond drawing the conclusion that he had “personal problems which may have led him to take his own life”. The team discussed the possibility of interviewing the Claimant but did not feel it was “within the bounds of the investigation to interview” her. The team was aware that Mr. Flaherty, the BP Shipping Regional Fleet Manager, had asked her whether or not there was any information that she could give that would be of assistance to the team. The team’s remit did not include considering whether the Claimant should receive any death in service benefit pursuant to Mr. Braganza’s contract of employment.[80]Since it is the Claimant’s case that there was a “fundamental shift” between the content of the first version of the report and the final released version it is necessary to trace the production of the final report.[81]Between 17 June and 21 July 2009 several drafts of the report were produced. On 22 July 2009 the final draft was sent by Colin Reid to BP Legal for review. This was standard practice within BP. The section entitled Findings included the following:
“The team has not found any firm evidence to explain C/E Braganza’s disappearance from the vessel. The team concluded from the evidence collected and by eliminating other causes that he was lost overboard on the morning of Monday 11 May 2009 whilst alone and unobserved. The team could not find any work related reason for him to be outside during this time. Neither could any evidence or cause be found of an accidental fall. However, neither of these eventualities can be ruled out. ”
[82]The section went on to say that the need for monitoring and scheduling of major main engine repairs may have created some stress for Mr. Braganza, that there were changes evident in his behaviour and his attitude to record keeping and that there was some evidence of family and/or financial problems. It was concluded that:
“This is not sufficient to draw a firm conclusion on C/E Braganza’s state of mind.”
[83]BP Legal suggested that certain passages relating to the vessel’s maintenance history and personal information relating to Mr. Braganza might be removed because otherwise the reader might “assume that he was stressed and/or depressed”. On 4 August 2009 a meeting took place between the team and BP Legal. A note of that meeting records:
“Suicide: Need to confront this and include in report”
. Mr. White of BP Legal who gave evidence said that that meeting led him to realise that the team had thought that Mr. Braganza had taken his own life.[84]The team revised the draft report. The section on Findings now contained the following:
“On the balance of probability, based on the evidence collected and by eliminating other causes, the investigation team is of the opinion that C/E Braganza took his own life in the morning of Monday 11 May 2009 whilst alone and unobserved.”
[85]On 11 August 2009 the team produced a further revised draft. This time the section on Findings said:
“Based on the evidence collected and by eliminating other causes, the investigation team is of the opinion that C/E Braganza took his own life by jumping overboard on the morning of 11 May 2009 whilst alone and unobserved.”
[86]On 14 August Colin Reid informed BP Legal that “as agreed we have been much more overt in stating our view of what the most likely scenario was and as a consequence you will see fewer findings than previously.”[87]On 24 August 2009 BP Legal made some further comments. These initially caused Colin Reid to be “defensive and grumpy” but he eventually accepted the suggested changes. A further draft was produced on 14 September 2009 and eventually on 17 September 2009 the final report was produced. The Section on Findings read as follows:
“Having regard for all the evidence the investigation team considers the most likely scenario to be that the C/E jumped overboard intentionally and therefore took his own life.”
[88]Although the intervention of BP Legal resulted in changes to the draft I am not persuaded that it led to a “fundamental shift” in the content of the report. It is true that the finding of suicide was not in the first draft. But it became clear as a result of discussion between the team and BP Legal that the team’s conclusion as to the likely cause of death was indeed suicide and as a result that finding was clearly stated in the later drafts. The intervention of BP Legal did not result in a change of opinion by the team. Rather, the team was persuaded that they should clearly set out their view as to the likely cause of death on the balance of probabilities. What can perhaps be said is that the team’s initial reluctance to identify suicide as to the likely cause of death suggests that such a conclusion was not clearly proven in the minds of the team.[89]Following the production of that report it was forwarded in due course to Mr. Sullivan, the General Manager of the Second Defendant. He considered that report and concluded that the actions of Mr. Braganza amounted to wilful default on his part such that death in service benefits were not payable to the Claimant. Mr. Sullivan gave oral evidence but it was not apparent from his evidence when he formed that opinion. Correspondence between the Claimant’s solicitors suggest that the decision was taken between 30 October 2009 and 13 November 2009. Thus on 29 September 2009 the report was forwarded to the Claimant’s solicitors. On 30 October 2009 the Claimant’s solicitors said that their understanding was that suicide was merely put forward as a possibility in the same way that accident was a possibility and requested that the death benefits be paid without delay. On 13 November 2009 BP Legal informed the Claimant’s solicitors that the Second Defendant had concluded that the report supported the view that Mr. Braganza had taken his own life. Liability for the death benefits was therefore declined.[90]Miss Bucknall submitted that the report provided no fair or reasonable basis for the finding of suicide as a possibility and a fortiori no fair and reasonable basis for the finding that suicide was the most likely scenario. In support of this submission she said(i) that the team lacked any psychiatric expertise,(ii) that the team lacked any engineering expertise,(iii) that none of the team heard all of the evidence(iv) that there was a lack of evidence to support certain of the facts relied upon(v) that the team failed to consider the circumstances which might have led to an accident on deck(vi) that the team failed to provide any reasoning in support of its finding of suicide and(vii) the team failed to consider whether there was an alternative explanation for the factors on which it relied.[91]Before considering the criticism of BP’s opinion it is necessary to return to the meaning of “reasonable” in this context. When BP (through Mr. Sullivan), following the death of Mr. Braganza, formed an opinion pursuant to clause 7.6.3 of Mr. Braganza’s contract of employment that the death resulted from the wilful act of Mr. Braganza it will have been apparent to BP (and Mr. Sullivan) that the formation of such opinion would deprive the Claimant of the death benefits which would otherwise be payable to her in respect of her husband’s death. In those circumstances, it seems to me that BP’s opinion must be formed in a reasonable manner, that is, by taking into account all relevant matters, by not taking into account irrelevant matters and by acting rationally ie BP must act in a “Wednesbury” reasonable manner; the reference is to Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Although the present case concerns the exercise of a contractual power rather than a statutory power the same principles apply, in my judgment, to the exercise of BP’s contractual power; see The Vainqueur Jose [1979] 1 Lloyd’s Rep. 557 where Mocatta J, at p.575 applied such principles to an exercise of a discretion by a P&I Club. Of course the opinion must also be formed honestly and in good faith but there is no suggestion in the present case that BP did not do that. If BP acts in a “Wednesbury” reasonable manner it matters not that the court may not agree with the decision reached by BP because the contract of employment provides that death benefits are not payable if, in the opinion of BP rather than that of the court, death resulted from the wilful act of Mr. Braganza. I accept that BP is a commercial entity rather than a court or tribunal but in circumstances where its opinion affects the rights of other parties it must, at least, act in a “Wednesbury” reasonable manner. However, the fact that BP is not a court or tribunal is of some significance. As Mocatta J. said in the Vainqueur Jose at p.577, “where, as here, the success or failure of a claim depends upon the exercise of a discretion by a lay body, it would be a mistake to expect the same expert, professional and almost microscopic investigation of the problems, both factual and legal, that is demanded of a suit in a Court of law.” But the lay body, in this case, BP, must act fairly and be properly directed in law; see the Vainqueur Jose at p.574.[92]Miss Bucknall submitted that the burden lay on BP to bring itself within the exception to its liability to pay death benefits ie to show that its reason was reasonable. If BP was unable to do that then it followed that the Claimant was entitled to the death benefits. Mr. Aldous submitted that the burden lay on the Claimant to show that BP’s opinion was “Wednesbury” unreasonable.[93]Clause 7.6.3 does appear to me to be in the nature of an exception from the liability to pay death benefits provided for in clause 7.3. It follows that I must accept Miss Bucknall’s submission on the burden of proof. Mr. Aldous informed me that if the court formed the view that BP’s opinion was “Wednesbury” unreasonable BP accepted that it would not have formed the necessary opinion and that the death benefits would be payable. Thus BP did not argue that if its opinion was “Wednesbury” unreasonable the issue should be remitted to it decide the matter in a “Wednesbury” reasonable manner.[94]The BP Investigation Team did not direct itself that before making a finding of suicide there should be cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide. This is understandable in circumstances where the purpose of its investigation focussed upon whether there were any BP systems had failed and to make recommendations to improve BP’s systems. As Captain Robertson said, the team’s remit did not include considering whether the Claimant should receive any death in service benefit pursuant to Mr. Braganza’s contract of employment. However, the findings of the team were adopted by Mr. Sullivan when forming BP’s opinion for the purposes of clause 7.6.3 of the contract of employment. He accepted in cross-examination that he did not carry out any investigation himself. He relied on the report. There is no evidence that he directed himself that before forming the opinion that Mr. Braganza committed suicide there should be cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide. It is unlikely that he did. This was required (whether or not any such finding would have social consequences in the context of Mr. Braganza’s community and religion) because the consequence of forming that opinion was that Mr. Braganza’s widow would be deprived of the death benefits under her husband’s contract of employment. Fairness required that BP and in particular Mr. Sullivan should have been properly directed in that regard.[95]I do not consider that the Investigation Team’s report and conclusion can be regarded as sufficiently cogent evidence commensurate with or proportionate to the seriousness of a finding of suicide to justify Mr. Sullivan’s and hence BP’s opinion for the purposes of clause 7.6.3 of the contract of employment. I have no doubt that the BP Investigation was conducted conscientiously and was well resourced. However, there is one important respect in which the opinion formed by Mr. Sullivan on the basis of the Investigation Team’s report was, in my judgment, unreasonable in the required sense.[96]The Investigation Team, and hence Mr. Sullivan, failed to take into account the real possibility that Mr. Braganza went out onto deck in order to check the weather to see whether it was safe to carry out the planned work. In the first draft of the report it was said:
“The team could not find any work related reason for him to be outside during this time.”
The description of the Incident at p.17 of the (final) Report mentions that Mr. Braganza was last seen at 0030 on 11 May “when he met with the Master in the C/E’s cabin to discuss arrangements for the planned engineering inspection/repairs.” No mention is made of Mr. Braganza’s keen interest in the weather that night (as expressed in his emails with Mr. Farquhar and his discussions with the Master as to the likely weather) or that that keen interest might have been the reason why he went out onto the main deck the next morning. BP acknowledged at p.34 of the Report that the possibility that Mr. Braganza had accidentally fallen or slipped overboard could not be discounted but that was in the context of envisaging how he might have fallen overboard notwithstanding that there was no evidence of sub-standard or unsafe structures (in the sense of the decks, walkways, handrails etc.)[97]The existence of a real possibility that Mr. Braganza went out on deck to check the weather is, in my judgment, a relevant matter to take into account when considering whether suicide has been shown to me more likely than not. The Investigation Team’s report strongly suggests that this was not taken into account. So did Captain Robertson when giving evidence. He appeared anxious to give his evidence to the best of his recollection. He thought carefully about his answers and was sometimes eager to put BP’s case but gave me no reason to think he was being other than honest. He said that the operation of lowering the CWJ into the engine room was “not massively relevant to what happened during the night”. He said the team “did not consider the job to be worthy of over-focussing on.” As a result, as Captain Robertson said in cross-examination, “suicide was the only scenario with evidence to support it. The team could not find any evidence to support accident. There was no reason for Mr. Braganza to go on deck.” Yet Mr. Braganza’s interest in the weather furnished a realistically possible work related reason for him to be out on deck and was some evidence in support of accident. It was therefore a relevant matter to be taken into account but the Investigation Team did not do so and as a result Mr. Sullivan and hence BP did not do so.[98]Mr. Aldous’ response to this criticism was that it did not matter because there was no serious possibility that Mr. Braganza could have accidentally fallen overboard. There was, he suggested, no serious alternative to the finding of suicide. But that was not the opinion formed by the BP Investigation Team. The team concluded that an accidental fall could not be discounted. The team did not say that any such possibility was only fanciful and not serious. If an accidental fall overboard had been fanciful and not serious it would have been discounted.[99]I have therefore concluded that Mr. Sullivan and hence BP were not properly directed in law and failed to take into account a relevant matter when forming the opinion that Mr. Braganza’s death resulted from suicide. For those reasons (and having regard to the concession sensibly made by BP) it follows that the contractual claim for death benefits under the contract must succeed.[100]In addition to the above points Miss Bucknall had other criticisms of BP’s opinion with which it is strictly unnecessary to deal. But since they were criticisms of BP I should deal with them in so far as I have not already done so.

Lack of psychiatric expertise

[101]I was initially concerned that in circumstances where the BP team was considering suicide it had not obtained any psychiatric evidence. Captain Robertson said that consideration was given to seeking such evidence at the report writing stage but none could be found. Dr. Flowers was consulted but there was no evidence that he, an expert in work place fatigue, had any psychiatric qualifications. However, no psychiatric evidence was led by the Claimant at the trial. So I am left in the dark as to whether such evidence would have been of assistance on the question of suicide. Mr. Aldous pointed out that there was no evidence that Mr. Braganza suffered from a mental illness and submitted that in those circumstances a psychiatrist would be unable to assist. In the absence of any evidence on this matter that submission has the attraction of logic. In those circumstances I do not consider that BP failed to take into account relevant matters by not having any psychiatric expertise.

Lack of engineering expertise

[102]This is a surprising complaint in circumstances where neither party called any engineering expert but instead relied upon deck expertise from masters, the same expertise as Captains Robertson and Shoolbraid had. I do not consider that BP failed to take into account relevant matters by not having a marine engineer as one of the Investigation Team. In any event it was Captain Robertson’s evidence that they took advice from an engineer as required.

None of the team heard all of the evidence

[103]This is true. The team split into pairs to conduct the interviews. But this criticism seems to me to require too high a standard of the investigation team which was not a court or tribunal. Where a tribunal of fact consists of more than one person, such as a jury or a court comprised of a judge and lay persons, it is no doubt a requirement that all members of the court hear all of the evidence. But I do not consider it inappropriate for each BP interviewing team to report to the other in general terms about the evidence they have heard in the course of their discussions.

Lack of evidence to support claimed facts

[104]This complaint is best approached by reference to the 6 bullet points identified by the Investigation Team as giving rise to the possibility that Mr. Braganza took his own life.[105]The first is described in these terms:
“C/E Braganza’s behaviour was reported to be notably different on this voyage than on previous voyages, for example he was reported as being quiet, withdrawn and at times “staring into space” in the engine room; there were no clean officers uniforms present in his cabin and there was evidence that his attention to detail in record keeping had slipped.”
[106]With regard to the comparison of Mr. Braganza’s behaviour on previous voyages compared with his last voyage Miss Bucknall subjected the comparison to a long and detailed analysis of the evidence available to the team. She submitted that the comparison was unjustified and unsupported by the evidence available to the Investigation Team and that in any event there was a reason for a change in Mr. Braganza’s behaviour on his last voyage, namely, that there was more work to do. Moreover, she said, account surely had to be taken of those members of the crew who spoke highly of him in the context of his last voyage whether in a work or social setting and regarded him as acting normally.[107]In the wake of Miss Bucknall’s comprehensive and exhaustive attack on this finding it is, I think, difficult to support it and Mr. Aldous did not seek to do so by reference to the detail of the available evidence. He accepted that none of the evidence was conclusive and that some of it could have had an innocent explanation but submitted that the team had “picked up on something when talking to the crew on board.” This is hardly a ringing endorsement of the team’s specific comparison between Mr. Braganza’s conduct on earlier voyages and on his last voyage.[108]With regard to the finding that there were no clean officer’s uniforms in Mr. Braganza’s cabin Miss Bucknall pointed out that the photograph of Mr. Braganza’s cabin showed a clean looking uniformed shirt with trousers hanging on a peg. In the light of this photograph it is difficult to justify the comment made by the team and Mr. Aldous did not seek to do so.[109]The third element of this finding was that Mr. Braganza’s attention to detail in record keeping had slipped. A number of matters were relied upon in the report in this regard but the most striking or most odd is the failure to make entries in the Chief Engineer’s Order Book after 18 April 2009. The vessel left Ferrol on 22 April 2009. Why entries were not made after 22 April 2009 is unexplained. Miss Bucknall suggested that Mr. Braganza was so tired or so busy that he simply forgot. This seems unlikely. This element of the finding was, in my judgment, justified.[110]The second point relied upon is described in these terms:
“The shoes and sandals C/E Braganza usually wore on board were found in his cabin after his disappearance.”
[111]This is true but it is difficult to see how this finding is probative of suicide. If he went out on deck he may well have worn his work boots.[112]The third point relied upon was the content of the emails which suggested “some family and/or financial difficulties which were causing him concern”[113]Miss Bucknall submitted that properly analysed in the context of all the evidence there was nothing in the emails which should have led a reasonable investigator to take the emails as evidence of any concern on the part of Mr. Braganza about financial matters. She pointed in particular to his salary, to the fact that the Claimant was also working and to the fact that both had a share portfolio. However, as I have already said, the emails are such as to suggest that there was concern in Mr. Braganza’s mind as to financial matters.[114]Miss Bucknall said there was a fundamental flaw in the team’s approach, namely, that, having read and been concerned by the emails, the team failed to interview the Claimant. Captain Robertson accepted that the team could have interviewed her and that in retrospect it would have been sensible to do so. However, at the time the team discussed the possibility of interviewing the Claimant and did not feel that it was “within the bounds of the investigation to interview” her. Given the purpose of the investigation that is understandable, and the team was aware that Mr. Flaherty, the BP Shipping Regional Fleet Manager, had asked her whether or not there was any information that she could give that would be of assistance to the team. However, when Mr. Sullivan came to form his opinion for the purposes of clause 7.6.3 of the contract of employment and saw the reliance placed by the team on “family and/or financial difficulties” the question arises whether, in fairness to the Claimant, she ought to have been given an opportunity to comment upon the suggested family and financial difficulties. In principle it seems to me that fairness did so require, notwithstanding that Mr. Sullivan felt that asking such questions might intrude unnecessarily into the family’s grief. However, the team’s report had been provided to the Claimant’s solicitors on 29 September 2009. Thus she must have been aware of the conclusion reached by the team and the reliance placed by the team on family and financial difficulties. She did not offer any explanation or comment. Instead her solicitors said that suicide was merely a possibility and demanded payment of the death benefits. In those particular circumstances I am not persuaded that Mr. Sullivan and hence BP acted unfairly in not asking the Claimant for her comments because she had in fact had such an opportunity and did not offer any explanation of the suggested difficulties.[115]The fourth point was that Mr. Braganza was not aware of the status and reputation oif the vessel:
“He was reported as being surprised and unhappy about this”
[116]There is no dispute that this was true. It was said that it was not probative of suicide. However, although it is surprising that the unexpectedly onerous work load in the engine room would disturb an experienced engineer, the emails show that it probably did.[117]The fifth point was that Mr. Braganza had been advised that a bonus payment made to him would be withdrawn. This is true but the amount of the bonus was only $1,688. The decision, about which he intended to complain, was likely to irritate but hardly a cogent reason for inferring suicide.[118]The sixth point was that a door from the accommodation block may have been opened during the hours of darkness.[119]Miss Bucknall submitted that there was no evidence that the door may have been opened during the hours of darkness. The Bosun said that the door was properly secured when he went out at the start of the working day. Dawn was shortly before 0500. A crewman found the door secured on one dog at 0800. Thus it appears that either the bosun or someone else had secured the door on one dog only. There was no evidence to suggest the door had been opened in the hours of darkness. Mr.Aldous did not suggest any. Captain Robertson accepted that the reference to the hours of darkness was “misguided”.[120]The result of this discussion of the points relied upon by the Investigation Team is that while some were correct and relevant points to take into account others appear to have been mistaken (the suggested comparison between Mr. Braganza’s previous conduct and his conduct on the voyage in question, the absence of a clean uniform and the suggestion that a door was opened in the hours of darkness) and at least one was not probative of suicide (the shoes and sandals in the cabin). Even if these errors had not been made the six points would not collectively have rendered BP’s opinion reasonable because BP had not taken into account that there was evidence that Mr. Braganza may well have gone out on deck to check the weather and hence evidence of an accident. The existence of the errors reduces the apparent cogency of the points relied on and perhaps indicates that BP took into account matters which they should not have taken into account in reaching their opinion and/or acted irrationally. However, the basis of my decision that the opinion of BP was not reasonable does not rest on this point but on the points referred to earlier in this judgment.

Conclusion

[121]The Claimant’s claim in contract succeeds. The Claimant’s claim in tort fails. The Claimant is entitled to judgment in the sum of $230,265 together with interest.

Cited in 1 later judgment