“Subject always to the exclusions hereinafter referred to, this insurance covers loss of or damage to the Vessel caused by: ……. 1.2 capture seizure arrest restraint or detainment, and the consequences thereof or any attempt thereat …. 1.5 any terrorist or any person acting maliciously or from a political motive …. 1.7 violent theft by persons from outside the Vessel 1.8 piracy 1.9 barratry of Master Officers or Crew ….”
“Warranted JW2009002 to apply.”
“For members’ information, EUNAVFOR strongly recommends that, before entering the Gulf of Aden and before passing the coast of Somalia …………… Owners/masters should apply the Best Management Practices (BMP attached).”
"(4) if a defendant insurer is to succeed on an allegation that a vessel was deliberately cast away with the connivance of the owner, then the insurer must prove both aspects on a balance of probabilities. However as such allegations amount to an accusation of fraudulent and criminal conduct on the part of the owner, then the standard of proof that the insurer must attain to satisfy the Court that its allegations are proved must be commensurate with the seriousness of the charge laid. Effectively the standard will fall not far short of the rigorous criminal standard; (5) although there is no "presumption of innocence" of the owners, due weight must be given to the consideration that scuttling a ship would be fraudulent and criminal behaviour by the Owners; (6) when deciding whether the allegation of scuttling with the connivance of the owners is proved, the Court must consider all the relevant facts and take the story as a whole. By the very nature of these cases it is usually not possible for insurers to obtain any direct evidence that a vessel was wilfully cast away by her owners, so that the Court is entitled to consider all the relevant indirect or circumstantial evidence in reaching a decision; (7) it is unlikely that all relevant facts will be uncovered in the course of investigations. Therefore it will not be fatal to the insurers' case that "parts of the canvas remain unlighted or blank" (see Michalos and Sons v Prudential Insurance (The Zinovia)[1984] 2 Lloyd's Rep 264 at p.273 per Bingham J.); (8) ultimately the issue for the Court is whether the facts proved against the owners are sufficiently unambiguous to conclude that they were complicit in the casting away of the vessel; (9) in such circumstances the fact that an owner was previously of good reputation and respectable will not save him from an adverse judgment; (10) the insurers do not have to prove a motive if the facts are sufficiently unambiguously against the owners. But if there is a motive for dishonesty then it may assist in determining whether there has been dishonesty in fact."
"there must be a real or plausible explanation which is supported by the evidence, or at the least is not inconsistent with it……..It imposes too high a burden on the underwriters to say that such witnesses must be telling the truth unless the underwriters prove their accounts are impossible" (see p. 484 lhc). In Strive Shipping v Hellenic Mutual War Risks Association (The Grecia Express)[2002] 2 Lloyd's Rep 88 at pp. 97-99 Colman J. concluded that it must be "highly improbable" that the vessel was lost accidentally and that there must be derived from the whole of the evidence "a high level of confidence that the allegation is true."
“in all cases, but especially in those cases where scuttling is alleged, the assessment of the reliability of a witness depends, not only upon a consideration of the extent to which his evidence is consistent with what is not in dispute, is internally consistent and is consistent with what the witness has said on other occasions but also upon a consideration of the extent to which his evidence is consistent with the probabilities. That involves placing the evidence in the context of the case as a whole. As was said in The Ikarian Reefer at p.484 lhc para. (4) the evidence of those impugned "has to be tested in the light of the probabilities and the evidence as a whole".”
“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.………….”
“If a Turk shows signs of anger when accused of lying, is that to be interpreted as the bluster of a man caught out in a deceit or the reaction of an honest man to an insult ? If a Greek, similarly challenged, becomes rhetorical and voluble and offers to swear to the truth of what he has said on the lives of his children, what (if any) significance should be attached to that ? If a Japanese witness, accused of forging a document, becomes sullen, resentful and hostile, does this suggest that he has done so or that he has not ? I can only ask these questions. I cannot answer them. And if the answer be given that it all depends on the impression made by the particular witness in the particular case that is in my view no answer. The enigma usually remains. To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm. ”
“An English judge may have, or think that he has, a shrewd idea how a Lloyd's broker, or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ship's engineer, or a Jugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done.”
“It is, I think, a common occurrence for a judge to find, after using his imagination to place himself in the position of the witness and in the context of the case as whole, that an account given in evidence is one that he simply cannot swallow. While this is not a very scientific test nor is it in my view, if carefully and imaginatively applied, any the worse for that.”
“Yesterday afternoon I heard an application for an order, based upon public interest immunity grounds, that the witness Mr. Plakakis will not be required to answer certain questions. That application was heard in the absence of the parties to this action because it was feared that knowledge of the application would reveal the very information which was sought to be protected on public interest grounds. A private inter partes hearing on the basis of a confidentiality club was not considered appropriate in the light of the decision of the Court of Appeal in Competition and Markets Authority v Concordia International[2018] EWCA 1881 and [2018] Bus LR 2452 at paragraph 71. On the facts relating to this application there was a further reason why such a procedure was not appropriate. I am not able to state that reason in this note. Upon the basis of the evidence put before me and the submissions of leading counsel I was satisfied that there is information known to the witness which would be damaging to the public interest if it were revealed. I therefore made an order that, subject to any further order, the witness need not answer certain questions in cross-examination. The basis of my ruling was that, although the question and answer may be relevant, the public interest in disclosure of the answer was outweighed by the public interest in maintaining the confidentiality of the information. I provided the applicant with a written judgment setting out my reasons. That is a private judgment which I cannot provide to the parties. As the trial judge I will keep the balancing of the competing public interests under review; see R v Davis[1993] 1 WLR 613 at p.618 per Taylor LCJ and Taylor v Anderton[1995] 1 WLR 447 at p.462 per Sir Thomas Bingham. In the event of any dispute I will rule on the matter in the light of such submissions as the parties are able to make. I recognise that the parties are in an unusual and difficult position, not being privy to the basis upon which the order has been made. All my judicial instincts suggest that this situation is unfair and inappropriate but I have been persuaded that, in accordance with the law and practice regarding public interest immunity, I am bound to make the order which has been sought.”
“I find the suggestion that Mr Tabares was responsible for setting an explosive device in the engine room to be beyond belief. This was a man of long experience who worked for a monthly salary without benefits such as leave pay or pension, and yet he tried his best, as seafarers do, to provide for his family and keep his reputation intact. A chief engineer from the Philippines or elsewhere is only employable in rank if his reputation is undimmed; and I understand from his22 September 2015 statement [paragraph 215] that Mr Tabares has been so employed between 2011 and September 2015 on four contracts at sea. The Philippines seafaring community being a virtual village, this would not have been possible if any taint attached to his reputation. I will state here quite categorically, that in my opinion, no chief engineer, indeed no seafarer, would endanger his shipmates by planting an explosive device. While such a device could be defined by ‘experts’ as moderate or of limited explosive power, or perhaps intended only to cause a fire, how could a ship’s engineer know the truth about something so alien? Such a suggestion is, in my opinion as someone with fifty years’ experience of ships and ship’s staff, simply incredible and unthinkable. ”
“In my opinion, a complex and highly organised conspiracy to scuttle the vessel, such as that alleged by Defendants, could not have expected to produce a CTL from such a flimsy and almost ludicrous incendiary device as the one described by fire experts Drs. Mitcheson and Craggs in their various witness statements. If the device was deliberately set to produce a CTL, then the outcome was fortuitous to say the least. ………. In my opinion nothing about the Brillante Virtuoso fire fits the pattern of a deliberate attempt to scuttle the vessel. If an engine room fire is to be decisively terminal it needs not only to be strategically placed but also to have a steady and reliable supply of fuel; steady, because an over-supply of fuel can quickly overwhelm and effectively cool a fire and is thus counter-productive. The Brillante Virtuoso fire had neither of these essential elements and it started in the purifier room, which, even with the doors open, was too enclosed to guarantee the fire spreading outward.”
“Whether the salvors’ conduct in fighting the fire was deficient in the manner alleged by the Defendants.”
“Do you consider in light of your experience of the salvage industry and its practices that Poseidon’s failure to take those steps (if proved) is demonstrative of collusion in a fraudulent scheme to cast away the vessel ? Or are they more likely to have an innocent explanation, and if so what ?”
“Piracy activities and attacks to shipping in the region of Gulf of Aden, Horn of Africa, and along the East Coast of Africa continues. The Administration requires the implementation of all necessary security and anti-piracy measures as provided by your SSP, exercise extreme vigilance, and proceed with caution during your transit on this high piracy risk area. Masters are advised to report immediately any suspicious approaches of vessels and observations of actual or suspected piracy activity witnessed during your transit to Coalition Naval Authorities ................................In case of an attack, attempted attack or suspected attack, ships should activate their SSAS, and immediately contact the Coalition Navy via VHF Channel 16 or 08 ……………….or via email. ”
“Why stop?”, “where is Somalia?”
“that the quantity of smoke emanating from aft of the Accommodation has reduced considerably and there is dark smoke emanating from the Pump Room exhaust vent in front of the Accommodation on the port side. Of the smoke emanating from aft, a significant quantity appears to be on the starboard side….”
“Smoke is emanating from aft and from the Pump Room vent, although the latter now appears to be less dark and more grey in appearance than in the previous photographs.”
“So the probability is that the second fire was a separate fire, isn’t it?”
“I speak “Who are you?”
“It emerged in cross-examination that this information was not from Mr Bezas’ own knowledge but obtained by him from the owners’ chartering department. I have to say that I am very sceptical as to whether the vessel could have obtained any such long term fixture. In the recent past, she had traded on the spot market with voyage charters and her age and condition suggests that pattern would have continued.”
“I adopt what Pickford J. says as to the meaning of " piracy " in the following passage of his judgment: “I do not think that can be better expressed than it is in Hall's International Law, 5th ed. p. 259, where it is said: 'Besides, though the absence of competent authority is the test of piracy, its essence consists in the pursuit of private as contrasted with public ends. Primarily the pirate is a man who satisfies his personal greed or his personal vengeance by robbery or murder in places beyond the jurisdiction of a State. The man who acts with a public object may do like acts to a certain extent, but his moral attitude is different, and the acts themselves will be kept within wellmarked bounds. He is not only not the enemy of the human race, but he is the enemy solely of a particular State.' That I think expresses what I have called the popular or business meaning of the word ' pirate,' and I find that several, though not all, of the definitions cited in the note on p. 260 of the same work bear out that idea. No doubt there are definitions which do not embody that idea, but that I think is the common and ordinary meaning; a man who is plundering indiscriminately for his own ends, and not a man who is simply operating against the property of a particular State for a public end, the end of establishing a government, although that act may be illegal and even criminal, and although he may not be acting on behalf of a society which is, to use the expression in Hall on International Law, politically organized. Such an act may be piracy by international law, but it is not, I think, piracy within the meaning of a policy of insurance; because, as I have already said, I think you have to attach to ' piracy' a popular or business meaning, and I do not think, therefore, that this was a loss by piracy." I adopt that passage as the basis of my judgment.”
“In my opinion Pickford J. was right in holding that, so far as the matter is one of legal construction, the term "piracy" must be regarded as having been used in a business document like this policy of insurance in the sense in which business men would generally understand it; and I think that, from that point of view, he was right in defining " pirates " as being those who plunder indiscriminately for their own gain, not persons who operate solely against the property of a particular Government for such objects as those for which the persons who seized the goods insured were operating against the Government of Bolivia in the present case. …………. To my mind the term "piracy" is inapplicable to the acts of the persons who seized the goods insured in this case, however wrongful or lawless their conduct may have been according to the law of Brazil or Bolivia. They seized these goods not for their private gain, but in furtherance of a political adventure in the latter country. I do not think that any business man would say that those acts constituted "piracy" in the sense in which that term is used in this policy. They are more like the matters mentioned in the warranted free clause, such as riot or civil commotion.”
“…….in the typical case of a composite policy where there are several assureds with separate interests, the single policy is indeed a bundle of separate contracts. That is the prima facie position under a composite policy, without any need for a meticulous examination, for instance, to see whether separate premiums have been agreed for the various interests.………………………”
“The strong implication from the decisions is that piracy requires the threat or use of force against persons, not simply against property, and I so hold.”
“2. BREACH OF NAVIGATION PROVISIONS (a) If the Insured wishes to secure continuation of coverage under this insurance for a voyage which would otherwise breach Clause 1, it shall give notice to Underwriters and shall only undertake such voyage if it agrees with the Underwriters any amended terms of cover and any additional premium which may be required by the Underwriters (b) In the event of any breach of any of the provisions of Clause 1, the Underwriters shall not be liable for any loss, damage, liability or expense arising out of or resulting from an accident or occurrence otherwise covered under this insurance during the period of breach, unless notice of such breach is given to the Underwriters as soon as practicable and any amended terms of cover and any additional premium required by them are agreed …”
“Underwriters strongly suspected wilful misconduct, believed it, and committed themselves to attempting to prove it.”