Davis v Stena Line Ltd [2005] EWHC 420 (QB)

[2005] EWHC 420 (QB)Case No HQ03X01321
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/03/2005
Before
THE HONOURABLE MR JUSTICE FORBES
Between
Marian DavisClaimantStena Line LimitedDefendant
Simon Kverndal Q.C. and John Russell (instructed by Holmes Hardingham) for ClaimantMichael Tillett Q.C. and Derek O'Sullivan (instructed by Eversheds LLP) for DefendantHearing Hearing dates: 15 th, 16 th, 17 th, 18 th, 19 th, 22 nd, 23 rd, 24 th, 25 th, 26 th, 29 th and 30 th November and 3 rd December 2004
Judgment
[1]Introduction. This is a claim brought under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. At this stage, the proceedings are concerned only with liability. The Claimant ("Mrs Davis") is the widow of the deceased, Michael Davis ("Mr Davis") and she brings this action against the Defendant (Stena") for the benefit of Mr Davis' dependants and estate. Stena is and was at all material times the owner and operator of the "Koningin Beatrix", a "roll-on roll-off" ferry that, at all material times, plied the southern Irish Sea route between Rosslare in the Irish Republic and Fishguard in Wales. The case is concerned with the circumstances of Mr Davis' death by drowning, having gone overboard from the Koningin Beatrix on the morning of the 29th October 2000.[2]The Main Relevant Legal Principles. Travel by ferry from the Republic of Ireland to the United Kingdom is governed by the Athens Convention ("the Convention"), as set out in Schedule 6 to the Merchant Shipping Act 1995. So far as material, Article 1(8) of the Convention provides as follows:
""carriage" covers the following periods (a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation …"
[3]Article 3 of the Convention deals with the liability of the carrier and provides as follows:
"1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger … if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. 2. The burden of proving that the incident which caused the loss or damage occurred in the course of carriage, and the extent of the loss or damage, shall lie with the claimant. 3. Fault or neglect of the carrier … shall be presumed [in circumstances that do not apply in this case]. In all other cases the burden of proving fault or neglect shall lie with the claimant."
[4]Notwithstanding the fact that Mr Davis was in the sea, rather than on board the Koningin Beatrix, when he met his death, it is now common ground and the parties are agreed that he died during the course of carriage within the meaning of the Convention and that the Convention therefore applies: see paragraph 10 of the Defence and the following passage from a letter dated 19th October 2004, addressed to Stena's solicitors and written by Holmes Hardingham, the solicitors acting on behalf of Mrs Davis:
"We have reviewed the applicability of the Athens Convention. We have instructions to confirm that our client admits and agrees the contention in paragraph 10 of your Defence, that notwithstanding that Mr Davis died in the sea, it was still the case that his death occurred during the course of carriage within the meaning of the Convention. In the premises we confirm that our client's claim is pursued under article 3 of the Convention, and is subject to the provisions of the Convention, and that, accordingly, your client will be entitled to limit its liability pursuant to Article 7."
[5]Accordingly, it was the submission of Mr Kverndal QC on behalf of Mrs Davis that the relevant liability regime to be applied in this case is that set out in Article 3 of the Convention, i.e. that the burden is on the claimant to prove(i) that there was an "incident" that caused Mr Davis' death and(ii) that the incident was due to the fault or neglect of Stena or of its servants or agents.[6]However, it is also common ground that, in the circumstances of this case, the liability regime under Article 3 of the Convention is, to all intents, the same as common law negligence. Furthermore, on behalf of Stena, Mr Tillett QC conceded that, having been informed that a man had gone overboard, Stena owed him a duty of care to take reasonable steps to locate and rescue him. As a matter of convenience, therefore, I will deal with the issue of liability in this case by reference to negligence, rather than the expression "fault or neglect" that isused in Article 3 of the Convention.[7]Article 6 of the Convention makes provision for contributory negligence, as follows:
"If the carrier proves that the death or personal injury to a passenger … was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of the law of that court."
[8]In paragraph 12 of its Defence, Stena assert that Mr Davis must have been acting deliberately, recklessly or negligently when he went overboard and that the claimed loss and damage was therefore wholly caused or contributed to by Mr Davis' own negligence. It was Mr Kverndal's uncontroversial submission that it is clear from the wording of Article 6 that the burden of proving contributory negligence is on Stena, just as it would be at common law. Mr Kverndal stressed (correctly, in my view) that, in this particular case, this meant that Stena is required to establish, on the balance of probabilities, some negligent act or omission on Mr Davis' part. Mr Kverndal submitted that it is not enough for Stena to say, in effect, "Well, he must have done something which was reckless or negligent, but we cannot say with any degree of particularity what it was."[9]As to what is meant by negligence in a case such as the present (which involves the alleged breach of the duty of care owed to Mr Davis by the owner and operator of a sea-going passenger ferry, its professional Master and crew), it is also common ground that the appropriate starting point for deciding whether Mr Davis' death was caused by the negligence of Stena, its servants or agents is McNair J's well-known direction to the jury in Bolam~v~ Friern Hospital Management Committee (1957) 1 WLR 582,at page 586:
"…I must tell you what in law we mean by "negligence."
In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been some negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".[10]By way of further elaboration of the standard of skill and care to be exercised by a member of a professional calling, it seems to me that the judgment of Phillips J (as he then was) in Deeny ~v~ Gooda Walker Ltd (1996) L.R.L.R. 183 is particularly helpful: see the following passage at page 207:
"In his opening submissions, Mr Eder advanced the following principles which he contended applied in the present case: (1) The standard of skill and care to be exercised by a member of a professional calling is the degree of skill and care ordinarily exercised by reasonably competent members of that profession or calling. (2) The existence of a common practice over an extended period of time by persons habitually engaged in particular business is strong evidence of what constitutes the exercise of reasonable skill and care. (3) In situations which call for the exercise of judgment, the fact that, in retrospect, the choice actually made can be shown to have turned out badly is not of itself proof of a failure to meet the necessary standard of care. (4) The plaintiffs cannot show a failure to meet the required standard of skill and care unless the error on the part of the underwriter was such that (no) reasonably well informed and competent member of the profession or calling could have made it. I accept each of these propositions. They merit, however a degree of elaboration. The first proposition does not remove from the Judge the determination of the standard of skill and care that ought properly to be demonstrated. As the authors of Jackson and Powell on Professional Negligence point out at p. 39: It is for the Court to decide what is meant by "reasonably competent" members of the profession. They may or may not be equated with practitioners of average competence … Suppose a profession collectively adopts extremely lax standards in some aspect of its work. The Court does not regard itself as bound by those standards and will not acquit practitioners of negligence simply because they have complied with those standards. The fourth proposition is based on a passage of the speech of Lord Diplock in Saif Ali ~v~ Sidney Mitchell (1980) A.C. 198 at p. 220: No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. This passage was dealing essentially with the question of judgment. The plaintiffs' case is not that errors of judgment were made, but that judgment was not exercised at all in that the underwriters never acquired the data on which that judgment might have been based."
[11]In my view, it is worth noting that the expression "an error of judgment" is ambiguous and not very helpful when it is relied on as encapsulating the defence to a charge of negligence: see the speech of Lord Fraser in Whitehouse ~v~ Jordan (1981) 1 WLR 246, where he said this:
"Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent."
As Mr Kverndal observed, not every error of judgment will constitute negligence, but many errors of judgment will – and for a defendant to rely on a "mere error of judgment" type of defence, he must show that he actually did exercise some judgment: see Gooda Walker (supra).[12]Where the defendant's conduct has occurred in the course of responding to an emergency, that circumstance will be regarded as relevant to the objective standard of care required. This straightforward commonsense proposition is sometimes referred to as the rule in The Bywell Castle (1879) 4 P.D. 219. However, the emergency or the "sudden serious difficulty" in question must be such that the defendant is faced with the need to make a true "agony of the moment" decision: see The "Ariguani" (1940) 66 Lloyd's List L Rep 244). Moreover, an "agony of the moment" defence will not avail a defendant who has been responsible for creating the dilemma in the first place: see John ~v~ Rees (1970) 1 Ch 345, per Megarry J at p. 384.[13]The Claimant's Expert Evidence. Having regard to the issues raised by the case, both parties called expert evidence with regard to maritime/seamanship matters and survival. On maritime/seamanship matters, the claimant's expert witness was Captain Mark Jubb (Captain Jubb), a Master Mariner and Marine Consultant employed by London Offshore Consultants Limited ("LOC"). On issues relating to survival, the claimant's expert witness was Dr Frank Golden, OBE, PhD, MB, BCh, DavMed ("Dr Golden"). Having joined the Royal Navy as a Surgeon Lieutenant in 1963, Dr Golden retired with the rank of Surgeon Rear Admiral.[14]However, at the outset of the trial, Mr Tillett raised an issue as to whether the claimant's expert evidence should be admitted in evidence at all, having regard to the funding arrangements that had been entered into between the claimant's solicitors and both Captain Jubb and Dr Golden. Stated shortly, it was Mr Tillett's submission that most if not all of the work on each expert's initial opinion had been carried out on a "no win, no fee" basis (i.e. a "contingency fee" basis), which is impermissible in the case of expert witnesses. He submitted that the claimant's solicitors' late attempt to deal with the problem, by substituting a deferred payment agreement in each case, did not remedy the situation, because the bulk of the work had been done at a time when each expert had a significant financial interest in the outcome of the action. Mr Tillett accepted that the decision was a matter for my discretion, but submitted that each expert's evidence should be excluded in its entirety (i.e. both his expert reports and his oral testimony). However, I decided to admit the evidence and indicated that, in due course, I would give my reasons for doing so in the course of this judgment. In the following paragraphs, therefore, I give my reasons for having decided to admit the claimant's expert evidence, notwithstanding Mr Tillett's arguments to the contrary.[15]CPR 35.3 provides as follows:
"Experts – overriding duty to the court (1) It is the duty of an expert to help the court on the matters within his expertise. (2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid."
[16]Neither CPR 35 (which relates to the rules on expert evidence) nor the Practice Direction that supplements it deal expressly with the remuneration of an expert witness by means of a contingency fee. However, annexed to the Practice Direction is a "Code of Guidance on Expert Evidence" ("the Code"), produced by a working party set up by the Head of Civil Justice, which makes it clear that an expert witness should not be paid on a contingency basis. As it seems to me, nothing of significance turns on whether the Code is actually part of the Practice Direction in a strict sense because, as is made clear in its preamble, it is "designed to help experts and those instructing them in all cases where CPR applies … it is drawn in general terms so as to provide guidance for every court of law in the Civil Jurisdiction and in every type of civil litigation." Accordingly, as Mr Kverndal readily accepted, the guidance contained in the Code should be followed, save perhaps in exceptional circumstances. So far as material, paragraph (9) of the Code provides the following guidance:
"(9) Payments contingent upon the … outcome of a case, must not be offered or accepted. To do so would contravene the expert's overriding duty to the court."
[17]The Academy of Experts has produced its own code of conduct in respect of expert evidence that has a similar provision to paragraph (9) of the Code. Similarly, paragraph 21.11 of the "Guide to Professional Conduct of Solicitors 1999 (8th edition)" prohibits the payment of a contingency fee to a witness, in the following emphatic terms:
"A solicitor must not make or offer to make payments to a witness contingent upon the nature of the evidence given or upon the outcome of the case."
However, sub-paragraph 4 of paragraph 21.11 acknowledges that it is possible to enter into a suitable agreement whereby payment to an expert witness is delayed until the case has concluded (a "deferred payment agreement"), as follows:
"4. The court has disapproved of arrangements whereby expert witnesses are instructed to provide a report on a contingency basis. It is possible (subject to prior agreement …) to delay paying an expert until the case has concluded, but the fee must not be calculated dependent upon the outcome."
[18]The propriety of contingency fees for expert witnesses was one of the matters that was considered by the Court of Appeal in R (Factortame Ltd and others) ~v~ Secretary of State for Transport, Local Government and the Regions (No 8) (2002) 3 WLR 1104. In giving the judgment of the court, Lord Phillips MR summarised the position with regard to contingency fees and expert evidence as follows:
"70. … Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert's evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules. … 72. Clearly, [in his judgment in Hamilton ~v~ Al Fayed (No 2)] Chadwick LJ did not contemplate any legal bar to experts providing their services on a conditional fee basis and it is correct that such a course can assist access to justice. But the expert will often be in a position to influence the course of the litigation in a manner in which the funder, or even the lawyer conducting the litigation, will not. 73. To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a significant financial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement. Accordingly, we consider that it will be in a very rare case indeed that the court will be prepared to consent to an expert being instructed under a contingency fee agreement."
[19]Andrew Messent is a partner in Holmes Hardingham and is the solicitor who has had the conduct of these proceedings on behalf of Mrs Davis from the outset. Mr Messent had no previous experience of personal injury litigation and did not know that an expert witness should not be retained on a contingency basis. So it was that when LOC and Dr Golden were first approached and asked to provide appropriate expert evidence, they were also both asked if they were prepared to do so on a "no-win, no-fee" basis. Although Dr Golden did not specifically agree to such a fee arrangement, he did not expressly demur and, in due course, he went ahead with preparing his expert's report. On 8th March 2004, Captain Jubb wrote to Mr Messent and confirmed that "LOC are content for me to act on a "no-win, no-fee" arrangement". It should be noted that, at all material times, Captain Jubb was an employee of LOC and was not involved in the decision-making with regard to fee arrangements. That was a matter for LOC's senior management.[20]Dr Golden's original report is dated 24th May 2004 and that of Captain Jubb is dated 10th June. Much of the work on their respective reports had been done by 8th May 2004, on which date Dr Golden sent the following email to James Craddick (an assistant solicitor at Holmes Hardingham"):
"I would be obliged if you could advise me on a matter that came up while dining with an acquaintance last evening? He does quite a lot of medico-legal work, in the psychiatric area, and is certainly much more experienced than I am, or ever likely to be. On asking him whether he had ever been involved in a "no-win, no-fee" type of case, he informed me that it is not possible to be "expert witness" on such a basis. It would be contrary to the principles of the Practice Direction for expert witnesses to provide evidence in a case which one's fees for work undertaken were dependent on winning a case. Doing so would nullify one's neutrality so to speak. While I have given my opinion – on the KB case – honestly and without favour or bias, it could be construed that I had a vested interest in the outcome and hence not a witness to the court but to the claimant. I can foresee Counsel for the defence making this point and nullifying my evidence. Is there any precedence for this? Can you advise?"
[21]It is plain from the terms of Captain Jubb's letter of 8th March and Dr Golden's email of 8th May that, just like Mr Messent, neither had appreciated that a conditional fee arrangement was not an appropriate basis for remuneration of an expert witness. However, Dr Golden's email of the 8th May (in my view, in itself powerful evidence that Dr Golden was very anxious to ensure that there should be no doubt as to his objectivity and lack of bias) alerted Mr Messent to the mistake that he had made in seeking each expert's agreement to a conditional fee arrangement. In his witness statement dated 16th November 2004 (the truth of which I accept without reservation), Mr Messent apologised for his error and described the action that he then took, as follows:
"12. I can only apologise to the court for the fact that I had not been alive to this point earlier. As indicated above, and in my letter to Eversheds of 12 November 2004, it was simply due to ignorance on my part as to the rules relating to CFAs. I accept that I should have looked into this at an earlier stage, but I did not do so. That I did not was, I suppose, in large part because it never occurred to me that respected experts such as Dr Golden and LOC would do anything other than provide evidence, fully in accordance with their duty to the court, in a fully independent way. 13. When Dr Golden raised the issue, I then looked into the issue. It seemed to me, following discussions with leading counsel, that the best way to deal with the matter was for the experts to enter into deferred fee agreements with Mrs Davies (sic). 14. By so doing, Mrs Davies (sic) would be liable for their fees in full, but the liability to pay would not crystallise until after the conclusion of the case. 15. I spoke to Mrs Davies (sic) and she confirmed that she was happy for me to enter into such agreements … 16. I went back to LOC and Dr Golden, and they both agreed that they were content to enter into such agreements. 17. Copies of the letters recording the agreements are (exhibited hereto). 18. The Defendant has interpreted those 12 June 2004 (sic) letters as meaning that there was a confirmation of an agreement to act on a no win no fee basis. That is simply incorrect. The agreement was and is to act on a deferred fee payment basis – liability to pay is not conditional on the result. 19. In relation to dates, the agreement with LOC pre-dates Capt Jubb's report. The agreement with Dr Golden post-dates his first report, but he indicated to James Cradick on 18 May 2004 that he was happy to enter into a deferred fee agreement. So, by the date of both reports the previous discussions about "no win no fee" agreements had been superseded and both experts had agreed to work pursuant to a deferred fee agreement. 20. The effect of the deferred fee agreement is that Mrs Davies (sic) will be liable in full for the experts' fees whatever the outcome of the case, and the quantum of those fees does not depend in any way on the outcome of the case."
[22]The two letters to which Mr Messent referred in paragraph 18 of his witness statement are actually dated 10th June 2004. The letters are in identical terms and each is countersigned by its addressee to indicate acceptance of its terms. The material terms of each letter is as follows:
"Further to the instructions hitherto given to you in this matter, we should like to confirm in writing the basis on which you have been instructed and have agreed to be paid your fees. Whilst your instructions have come from this firm and although we are happy for you to render your fee notes to this firm as agent for the Claimant, our client remains responsible for the payment of your fees. In view of the financial position of our client we understand that you would be prepared to work on this matter without submitting interim invoices and instead any fee note will be submitted at the conclusion of the case. In order that we may formalise this arrangement we would be grateful if you would sign and date this letter confirming your agreement."
[23]It was Mr Tillett's original submission that the letters of 10th June merely constituted written confirmation of each expert's previously agreed contingency fee arrangement. He therefore submitted initially that both Dr Golden and Captain Jubb were acting on a contingency fee basis and thus had a significant financial interest in the outcome of the case.[24]Whilst I accept that it would have been better if the letters of 10th June had made it plain that the previously agreed/proposed contingency fee basis had been cancelled and that each expert's fees (the amount of which would not be dependent on the outcome) would be payable by Mrs Davis in any event (albeit deferred until the conclusion of the case), I am satisfied that the terms of each of the letters are consistent with an appropriate deferred payment agreement having been reached with each of the experts. I accept Mr Messent's evidence (see, for example, paragraphs 16 and 19 of his witness statement, quoted above) that, following the receipt of Dr Golden's email, each of the experts was contacted and each agreed to an appropriate deferred payment arrangement. Mr Messent then sought to record that arrangement in the letters of 10th June. It would seem that it was in the light of Mr Messent's evidence that Mr Tillett modified his initial submission (see paragraph 23 above) to that which I have summarised in paragraph 14 above.[25]Accordingly, although I accept that most of each expert's initial report had been carried out whilst the proposed/agreed basis for remuneration was a contingency fee arrangement, I am satisfied that before each had actually signed his first report, he did agree to be remunerated on a deferred payment basis (i.e. the fee, the amount of which was not dependent on the outcome, was to be paid by Mrs Davis in any event, but payment deferred until the conclusion of the case), instead of the originally proposed/agreed contingency fee basis.[26]As I have already indicated, the objection to the admission of Dr Golden's and Captain Jubb's evidence came at the very beginning of the trial, as did Mr Messent's evidence. If I had upheld the objection, it would have been necessary to adjourn the trial, otherwise Mrs Davis would have been unable to have expert evidence called on her behalf (which, in my view, would have plainly resulted in an unfair trial). Adjournment of the trial would have resulted in considerable delay, substantial wasted costs, a great deal of further expense and much inconvenience to the parties. It would have been necessary for Mrs Davis' advisers to find and instruct fresh expert witnesses and matters that were already the subject of agreement between experts (of which there was a significant amount) would have had to be revisited and fresh without prejudice meetings arranged for that purpose.[27]As I have already explained, I was satisfied that by the time the objection was raised by Mr Tillett, the remuneration of both Mrs Davis' experts had been put on a proper footing for some time (i.e. by means of the deferred payment arrangement that had been agreed in May/June 2004). Although, much of the work on each expert's initial report had been on a proposed/agreed contingency fee basis, it was clear from Dr Golden's email that he was anxious that his objectivity should be beyond question and I have no reason to believe that LOC's attitude was any different.[28]It therefore seemed to me that, to the extent that there was any basis for suggesting that the work on the initial reports (i.e. in the period prior to agreement to a deferred payment arrangement) might have been influenced, biased or lacking in objectivity as the result of the expert's apparent financial interest in the outcome of the case, that was something that could be properly and fully explored in cross-examination and the evidence evaluated accordingly. As it seemed to me, the consequences of upholding Mr Tillett's objection at trial and refusing to admit the Claimant's existing expert evidence would have been such as to be plainly in conflict with the Overriding Objective (see CPR 1.1) and wholly disproportionate to the initial mistake that had been made by Mr Messent and the two experts with regard to the appropriate basis for their remuneration, a mistake that had been remedied as soon as it had been identified.[29]Accordingly, for those reasons I decided to exercise my discretion in favour of admitting the Claimant's expert evidence, notwithstanding that much of the work on the experts' initial reports had been done on a proposed/agreed contingency fee basis. In the event, having listened to and observed both Dr Golden and Captain Jubb during Mr Tillett's careful and searching cross examination of each on this aspect of the matter, I am entirely satisfied that each did act in accordance with his overriding duty to the court throughout. The dignified rejection and scarcely veiled indignation of each at the suggestion of bias or lack of objectivity was, in my view, both genuine and completely unfeigned. I therefore reject the suggestion that their expert evidence lacked objectivity or was biased in any way as a result of each having carried out work on his initial expert report at a stage when the proposed/agreed basis for their remuneration was a contingency fee arrangement.[30]The Facts. I now set out the main facts of this case as I find them to be on the evidence that I have heard, read and seen and in the light of the full and careful written and oral submissions made by Mr Kverndal and Mr Tillett on behalf of the parties. In the course of this part of my judgment I also state my conclusions with regard to several of the allegations of fault or neglect (i.e. negligence) on the part of Stena, its servants or agents.[31]Mr and Mrs Davis and their two young children, Jim and Katie (now aged 10 and 8 respectively), were passengers on the Koningin Beatrix when it sailed at 1040 from Rosslare on the morning of 29th October 2000 carrying 1092 passengers, 299 cars and 29 freight vehicles. The scheduled sailing time from Rosslare was 0900, but departure had been delayed because of particularly bad weather. Although the weather had begun to moderate by the time the Koningin Beatrix actually sailed, conditions still remained poor with gale force southwesterly winds and rough seas. Wave heights were about 4 metres and there was a 1.5 metre swell. However, weather conditions of this degree of severity are not uncommon in the southern Irish Sea and are encountered in approximately 40% of the crossings to and from Rosslare and Fishguard.[32]It was the children's mid-term break. The purpose of Mr and Mrs Davis' trip to England was to visit Mr Davis' mother in Nottingham for a few days before going on to a party that was to be given by a close friend of Mr Davis in Brighton and to which they had been invited. The family planned to return to Ireland on 6th November. Mr Davis had spoken to his mother on the telephone the night before and it was clear that he was looking forward to the trip. He also told her about the deposit he had just put down on a plot of land upon which they planned to build their family home. He was excited about it and was looking forward to the future.[33]Mr Davis was aged 35 at the time of his death. He was a civil engineer by profession and was currently employed by Kilkenny County Council at a salary of IR£34,895. He had gone to Ireland to start work there on 3rd August 1999 and had been joined by his family in November 1999. Mr and Mrs Davis' marriage was a happy one and there were no marital problems. Mr Davis was doing well at work. He was popular and he enjoyed his job. He was in good health and had no financial worries. According to his work colleagues, Mr Davis had been on good form in the week immediately preceding his death.[34]I accept Mr Kverndal's submission that there is no evidence that Mr Davis was subject to suicidal tendencies. Although he had experienced a psychotic episode in September 1999, it appears that Mr Davis had made a full and rapid recovery from that condition. His medical notes do not reveal any signs of suicidal tendencies as such and, although Stena had obtained permission to adduce psychiatric evidence, none was actually forthcoming. In all the circumstances I see no reason to doubt Mrs Davis' evidence that she did not detect any signs of stress or depression in her husband's behaviour after he had recovered from the September 1999 psychotic episode, that he loved his work and that he was cheerful and in good spirits on the day of his death. I also accept Mrs Davis' evidence that her husband was not the sort of man to act imprudently or foolishly whilst out on deck. I accept that she firmly believes that Mr Davis went over the side accidentally, that she has always done so and with good reason. I accept her evidence that she has never said anything to suggest that she thought it possible that her husband had gone over the side deliberately because he had been depressed.[35]As I will make clear very shortly, there is no evidence as to how Mr Davis actually came to go overboard, because nobody saw it happen. As I have already indicated, there is no evidence that Mr Davis suffered from suicidal tendencies. On the day in question he had no reason to commit suicide and he was in good spirits. Not only that, but all his observed behaviour in the period leading up to and on 29th October strongly suggests that he was enjoying life and that he wanted to live. Once in the sea, the evidence clearly shows that Mr Davis did everything he possibly could to survive and that he succeeded in doing so for a remarkably long period of time in extremely difficult conditions.[36]As it seemed to me, Mr Tillett did not put forward the suggestion that Mr Davis had gone over the side deliberately with any degree of enthusiasm or sense of conviction. In the circumstances, that was not surprising. In my judgment, on analysis there is simply no evidence from which it can properly be inferred that Mr Davis deliberately jumped overboard. I accept Mr Kverndal's submission that, although suicide is no longer a criminal offence, it nonetheless remains a grave allegation and requires a degree of proof proportionate to the seriousness of the allegation (i.e. cogent proof): see paragraph 15 of the judgment of Toulson J in The "Delphine" (2001) 2 Lloyd's Rep 542. In my view, such proof is singularly lacking in this case for the reasons explained above. I therefore reject the suggestion that Mr Davis went over the side deliberately. Furthermore, I am not persuaded that he went over the side as the result of some foolish or reckless action on his part. Such behaviour would have been entirely out of character and there is no evidence from which it can properly be inferred that he did behave in such a manner.[37]The Koningin Beatrix is a large "ro-ro" ferry of the type usually described as a "superferry". She is currently operating in the Baltic and has been renamed the Stena Baltica. She was constructed in the Netherlands in 1986. She has an overall length of 161.6 metres and a beam of 27.6 metres. Her gross tonnage is 31,189. She has twin screws and two transverse bow thrusters with controllable pitch. There are three stern doors that were used for loading and unloading at Rosslare and one bow door that was used for loading and unloading at Fishguard. Once at sea, the bow and stern doors should not be opened under any circumstances. The Koningin Beatrix is fitted with retractable stabiliser fins, situated amidships and located 4 metres below the load waterline ("the waterline") on each side of the vessel.[38]The Koningin Beatrix is a very high-sided vessel. Deck 3 is the main vehicle stowage deck. The principal passenger decks are decks 6, 7 and 8 and each has a partially enclosed external deck aft to which passengers are able to gain access. Decks 6 and 7 do not have any external side decks. Deck 8 (19 metres above the waterline) is the lifeboat embarkation deck. Deck 9 (22 metres above the waterline) is the lifeboat stowage deck. Both decks 8 and 9 have external side decks to which passengers are allowed access.[39]All external passenger decks are completely surrounded by safety handrails just over 1 metre high, consisting of four horizontal members with vertical stanchions at appropriate intervals. The handrails have gates at various positions to allow access to the lifeboats and the like. These gates open inboard and are secured shut with a long vertical locking pin.[40]The Koningin Beatrix has an enclosed bridge/wheelhouse that is situated well forward (above frames 165 to 170 approximately) at the forward end of deck 10 at a height of about 25 metres above the waterline. The bridge is 29.4 metres in width and extends slightly outboard on either side of the vessel, thus providing better visibility when manoeuvring. The vessel's steerage, main engines, bow thrusters, radio communications and navigation systems are all directly controlled from and/or carried out on the bridge.[41]On each side of the Koningin Beatrix there is a single hull door situated amidships (by frame 95), immediately above the belting (rubbing strake) that runs almost the full length of the vessel on either side (the belting is about 0.25 metres wide and about 2 metres above the waterline). The door on the starboard side is for bunker access ("the bunker door") and is surrounded by associated pipework, the door on the port side is for Pilot access ("the Pilot door"). Both door are operated hydraulically, both open outwards and, when fully opened, both lie flat against the side of the hull. Both doors give access to deck 3 (the main vehicle deck). These doors were also to be kept shut whilst at sea, but the Master did have the discretion to open either of them for the purposes of effecting a rescue.[42]At all material times the Koningin Beatrix was manned and certificated in accordance with all the then current statutory requirements. It was fitted with six lifeboats (3 each side), two rescue boats (1 each side), 56 davit-launched liferafts at 14 separate stations, 24 lifebuoys and about 2,500 lifejackets. The vessel was also equipped with four Speedline rocket lines, designed for getting a line between vessels. None of the rocket lines was fitted with a buoyant head. The Koningin Beatrix was also equipped with a Jason's cradle and various lines and ladders.[43]The Master of the Koningin Beatrix on 29th October 2000 was Captain David Rhys Parry Williams ("Captain Williams"). There is no doubt that Captain Williams is a very dedicated, capable and experienced seaman. He is now aged 55 (52 in October 2000) and had been at sea for 35 years at the time of the incident. He qualified as a Master Mariner in January 1975. He has been a Master for Stena off and on from 1985 and permanently since 1996. Prior to the Koningin Beatrix, Captain Williams was the Master of MV Stena Felicity. He is currently the Master of MV Stena Europe. As at December 2004, Captain Williams had worked for Stena (and its corporate predecessors, Sealink, Sealink Stena Line etc) for 30 years. Prior to joining Stena, Captain Williams had spent nine years in the merchant navy on deep-sea vessels.[44]I am also satisfied that normally Captain Williams is very skilled in ship handling. As part of his responsibilities he has to manoeuvre his vessel in and out of port twice a day, including stern berthing at Rosslare. Stena does not use pilots and no tugs are available at either port. Captain Williams therefore has to manoeuvre his vessel on a very regular and frequent basis, with a high degree of precision and accuracy in all sorts of weather conditions.[45]So far as concerns the Koningin Beatrix herself, I accept Captain Williams' evidence that she is very seaworthy, she rides the seas well (particularly with a following sea) and is reasonably manoeuvrable, although somewhat underpowered for manoeuvring purposes because of her small rudders.[46]On 29th October 2000, in addition to Captain Williams, the deck officers of the Koningin Beatrix were Robert ("Bob") Weale (Night Master), Simon Wood (First Officer), Patrick ("Pat") Lewis (Second Officer) and Robert ("Bob") Allan (Second Officer). All the deck officers, except Bob Allan, held a Master Mariner's certificate. Bob Allan held a Chief Mate's certificate. The atmosphere on the bridge was informal and relaxed, with first names being the usual mode of address. The crew also included a bosun and assistant, two quartermasters and 12 able seamen, as well as the on-board services staff.[47]Once they had got on board, Mrs Davis took Jim and Katie to find a seat whilst Mr Davis locked the car. Mr and Mrs Davis were familiar with the Koningin Beatrix because they had sailed on her on a number of previous occasions. Mrs Davis therefore made her way to their usual place which was at a table in the bar area on deck 6, near the on-board shops at the rear of the vessel. In due course, Mr Davis joined them. As the Koningin Beatrix left Rosslare, Mr and Mrs Davis were seated at the table with their children and enjoying a cup of coffee.[48]After Mrs Davis finished her coffee, she took Jim to the shop to look for a birthday present for Katie, whose fifth birthday was in two days' time. Whilst they went to the shop, Mr Davis remained at the table with Katie. After about 15 minutes, Mrs Davis and Jim returned. They had not been successful in finding anything suitable. Mr Davis met them as they made their way back to the table and announced his intention of going to the shop. Jim therefore decided to go back to the shop with his father and try once more to find a present for Katie. Mrs Davis rejoined Katie at the table. After about 20 minutes, Jim returned by himself. He told his mother that Mr Davis had gone outside, but that he had not wanted to go out with him. In my view, it can be inferred from what Jim told his mother that Mr Davis had invited Jim to go outside with him, behaviour that was inconsistent with any intention to commit suicide. By then the time was about 1120. Despite the bad weather conditions, Mrs Davis was not immediately concerned by what Jim told her, because Mr Davis often went outside during a crossing. Of course, in order to get to the nearest external side deck, Mr Davis would have had to go up to deck 8.[49]The Koningin Beatrix was an hour out of Rosslare when Mr Davis went overboard. As I have already indicated, nobody actually saw what happened. However, a number of the passengers saw Mr Davis in the sea shortly afterwards and raised the alarm, as described in the following passage from the subsequent Marine Accident Investigation Branch ("MAIB") report dated December 2001 (as to which, see below):
"Three passengers had been dining in the café located on the aft part of deck 7 and decided to go outside for a smoke. After about 5 minutes, one of them noticed an object in the water outboard and to port of the wake … astern of the vessel. He looked closer and realised that it was a man. He pointed him out to his friends and they could clearly see the man spinning around in the water drawing further astern. The passenger then went back into the café on deck 7 and told the nearest crew member he could find, who was working on the till. The crew member went to the outside deck with the passenger; however, he was unable to see the man in the water because he was, by then, well astern of the vessel. The other two passengers verified to the crew member that they had seen someone in the water. The crew member returned to the café and told his supervisor what had been reported. His supervisor told him to inform the bridge. The crew member telephoned the bridge and told the second officer that a passenger had reported seeing someone in the water. The time was 1145."
[50]The passenger who first spotted the man in the water (who was undoubtedly Mr Davis) was Norman O'Neill. The two friends to whom Mr O'Neill pointed out the man in the water (and who also saw him as a result) were Martin Sinnott and Michael Byrne. When Mr O'Neill first saw Mr Davis in the sea he was about 40 to 50 yards astern of the ship. It is clear from their evidence and from the timing of the emergency "PAN PAN" MOB (man overboard) radio message that was broadcast by the Koningin Beatrix (timed at 1150 and as to which, see below) that Mr Davis went over the side at about 1140. Having regard to his position relative to the Koningin Beatrix when he was first spotted in the water, it would appear that Mr Davis went overboard from the port side of the vessel, probably from deck 8.[51]It is not possible to say precisely how Mr Davis came to go overboard and Stena did not advance any positive case as to what had happened. As I have already explained, I am satisfied that Mr Davis did not go overboard deliberately, nor did he carry out some foolish or irresponsible act that resulted in him going overboard. It was common ground that there was no basis for any suggestion that any third party was involved (e.g. that somebody had pushed Mr Davis overboard). The only remaining possible explanation is that it was, as Mrs Davis has always believed, an accident.[52]All Stena's witnesses accepted that it was a possibility that Mr Davis had gone overboard accidentally, although sometimes that acceptance was qualified by expressions such "remote" or "highly unlikely". It is clear from the evidence of many of the witnesses that the weather and sea conditions were very poor that day; for example, the Koningin Beatrix's First Officer, Simon Wood, described the conditions as "horrendous". It was very windy and there was a big sea running. Despite the ship's stabilisers having been deployed, there was still a considerable amount of motion and it was difficult to walk about. Although it was not raining at the time, the decks were wet from spray and spindrift. Captain Williams acknowledged that it was possible that there were areas on deck 8 that required repainting with non-slip paint and that they were wet and slippery as a result. Although the access gates in the safety rails were checked regularly, it was possible for a gate to be opened and left open or its locking pin removed by the curious or mischievous. Whilst it is important to bear in mind that the Police checked all the outside decks after the vessel arrived at Fishguard and found nothing untoward, it is possible that a member of the crew had by then closed any gate found open without appreciating its significance.[53]Furthermore, the time that Mr Davis went overboard coincides almost exactly with the time that the Koningin Beatrix carried out a 30 turn to starboard in order to avoid a container vessel, the "Celtic King", that was on a crossing course, about 1.5 miles off the port bow and, so it would seem, on a constant bearing. The Koningin Beatrix was the stand on vessel, so her primary obligation was to maintain course and speed. Patrick Lewis was the officer of the watch who had the con of the Koningin Beatrix at the time and he did not want the CPA (closest point of approach) to be less than a mile. When it appeared to Mr Lewis that the Celtic King was maintaining her course, he decided to alter course so as to avoid the two vessels coming too close to each other. Accordingly, he made the necessary clear and decisive alteration of the Koningin Beatrix's course by turning 30 to starboard. It is clear from the Koningin Beatrix's course recorder trace that this turn to starboard commenced at 1140.[54]Prior to commencing the turn to starboard, the Koningin Beatrix was on a course of 107, the wind was on her starboard quarter and there was a following sea. By 1142 she had steadied on 138. In my view, the turn to starboard would have caused the Koningin Beatrix to heel to port and the heel would have been increased by the wind being brought round on to the starboard beam. The heel to port would have been of the order of 4 to 5 and there would have been an increase in the vessel's roll as the result of the seas coming round on to her starboard side. I am satisfied that the fact that Mr Davis went overboard from the port side of the Koningin Beatrix at the same time as she turned to starboard was not a mere coincidence. In my judgment, the heel to port and the increased roll of the ship were factors that, in all probability, contributed to Mr Davis losing his footing and going overboard accidentally at about 1140. In short, Mr Davis did not go overboard as the result of any fault or neglect on his own part.[55]Captain Williams very fairly accepted that it was a possibility, albeit a very remote one in his view, that Mr Davis had slipped and fallen over the safety rails on deck 8. Even if it is right to regard that possibility as very remote, the weather conditions and other circumstances were such as to be very conducive to making such a remote possibility become a reality. In my judgment, the probability is that, whilst Mr Davis was on the port side external deck 8, the vessel's motion as she turned to starboard caused him to trip or slip and lose his footing and the 4 to 5 heel of the vessel with its increased roll resulted in him falling against and over the safety rails and thence overboard. Either that or he fell through the gap in the safety rails that resulted from an access gate having been left open, one that was subsequently closed by a crewmember who did not appreciate its significance.[56]At about 1145, as soon as the man overboard information had been communicated to the bridge, Mr Lewis commenced to carry out Stena's current operational procedures for a man overboard (as to which, see paragraph 57 below). He went to the port wing of the bridge and tried to release the lifebuoy, a lifebuoy that is equipped with an automatic smoke signal. Unfortunately, the lifebuoy did not release instantly and it took Mr Lewis a few moments to work it free. Having done so, he returned to the bridge console and sounded 3 long blasts on the Koningin Beatrix's whistle ("Man Overboard"). He then immediately started to turn the vessel around to look for Mr Davis, using the approved procedure of a "Williamson turn". The course recorder trace shows that he commenced this manoeuvre at about 1147. However, Mr Lewis failed to press the automatic waypoint on the ship's GPS system to record the ship's nearest position to the man overboard. In the event, however, this particular oversight on Mr Lewis' part was not causative of Mr Davis' death in any way.[57]In October 2000, Stena's current Standing Orders and Operational Procedures Manual contained no guidance and no specific operational procedure for rescuing a man overboard in the event that it was not possible to launch the vessel's own rescue boat. The following are the main relevant provisions from Stena's procedures, current at the time of Mr Davis' death:
"Chapter 3: Sea Operations 3.9 MAN OVERBOARD 3.9.1 The procedure for man overboard differs depending on whether the man was observed to fall over or if he is missed and after a subsequent search is not found and assumed to have gone overboard. 3.9.2 If the man has been observed to fall over the following procedure should be followed:- 3.9.2.1 Action by the Officer of the Watch:- (1) Rudder hard over to swing the stern away from the person (2) Release bridge wing lifebuoy on the side the person has fallen over. NB make sure the buoy actually goes in the water and does not hang from the light/smoke float which might not have released from its bracket. (3) Press "
Auto WP/"Event" on … GPS unit. Note WP number, (4) Sound Man Overboard signal (Accident Boat signal – THREE LONG BLASTS on the whistle and alarm. Announce on PA "Accident Boat Crew close up". (5) Commence "Williamson Turn" … (6) Put the main engines at Stand By and inform the machinery control room. Reduce pitch on combinators to "Full Manoeuvring". (7) Post two lookouts with binoculars. (8) Plot position of ship relative to person overboard. (Auto WP/Event position). (9) Hoist Interco flag "O" if near shipping traffic. Display NUC lights at night. 3.9.2.2 Action by the Ship's Company (1) Muster at Accident Boat stations, Accident Boat crew wearing protective clothing, lifejackets … (2) Accident boat party prepare accident boat. (3) Machinery party to Machinery Control Room. (4) First Aid Party to provide stretcher. … (5) The Master will take charge when he arrives on the bridge and manoeuvre the ship as required. (6) Nearby shipping alerted by VHF. (7) "PAN" message sent if required. (8) When the Accident Boat is prepared for launching 120 fathoms gantline attached to a lifebuoy with a spare smoke float can be towed astern. … In rough weather or darkness the ship can be manoeuvred such that the trailing line will form an arc in which the man overboard can be gathered and on to which he can hold until recovered by boat or winched into the ship. (9) If possible a pilot ladder and gangway net should be placed over the lee side with manropes. If necessary the person overboard can be recovered up the ship's side using the pilot ladder and gangway net. Men wearing lifejackets and on lifelines must be prepared to go over the side on the ladder and net to assist the person in the water."[58]Whilst the Williamson turn was being carried out, Captain Williams, Simon Wood and Robert Weale joined Mr Lewis on the bridge. Bob Allan was asleep in his cabin, having been on duty through the previous night, and did not hear the alarm. Once he reached the bridge, Captain Williams assumed responsibility for conducting and coordinating the necessary search and rescue operation. Captain Weale very quickly realised that the automatic waypoint button had not been pressed and so he pressed it. As soon as he got to the bridge, Simon Wood took over responsibility for radio communications and broadcast on VHF Channel 16 an emergency PAN PAN signal that there was a man overboard. When the Williamson turn was completed (at about 1150), Captain Williams took over the con of the Koningin Beatrix and assumed direct responsibility for manoeuvring the ship. Mr Lewis then acted as lookout, together with several ratings, making a total of about 10 on the bridge. Other ratings were posted to the outside decks to act as lookouts.[59]According to the Irish Coast Guard radio log ("Irish CG"), the Koningin Beatrix's "PAN PAN" signal was broadcast at 1150. I am satisfied that the times given in the Irish CG radio log are accurate and provide a reliable means of timing the various relevant events that occurred during the incident. As a result of the PAN PAN broadcast, the Rosslare RNLI lifeboat was launched at 1208 and R116 was one of two rescue helicopters scrambled from Dublin at 1214 (the other, R169, was subsequently instructed to return to base). On hearing the PAN PAN, the nearby Celtic King (which also timed that signal at 1150 in its log) slowed down, sounded the general alarm, made arrangements for lookouts and joined in the search for Mr Davis. Shortly afterwards, the Celtic King also began to prepare her fast rescue boat (a rigid-hulled inflatable) for launching and the rescue boat crew began donning their immersion suits.[60]Nobody on the bridge of the Koningin Beatrix believed that there was much chance of finding the man overboard, still less of rescuing him alive. Not only were conditions such that it would be very difficult to see or find him, but nobody thought that he would survive for very long in such rough cold seas (the sea temperature was 12 Celsius at the time). Until Mr Davis was actually spotted, discussions on the bridge were solely concerned with conducting the search. So it was that, at this stage, the bridge team on the Koningin Beatrix gave no consideration as to how Mr Davis was to be rescued if and when he was found alive. I accept Mr Kverndal's submission that this was a significant and negligent omission, as Stena's maritime expert witness, Captain Eric Beetham ("Captain Beetham"), effectively agreed in the following passage in his evidence (Transcript, day 9, pages 129-130):
"Mr Kverndal. I think we know from Captain Williams' evidence that no plan was devised or thought out as to the retrieval until the man overboard was seen by the bridge team. Do you recall that? Captain Beetham. Correct, yes … Q. If you find him alive, you want to be prepared for that eventuality? A. Yes, yes. Q. Some advanced thinking as to how you might be able to rescue him. A. Yes. Q. There was not, was there? A. No. There was not anything planned for it at that point. Q. That really was not satisfactory, was it? A. It could have been done better, yes. Q. One would expect a reasonable and prudent master mariner to have made some preparations as to how you might rescue in the event of finding. A. Yes."
[61]As it happened, Mr Davis was a very strong swimmer who had successfully passed the very demanding STA (Swimming Teachers' Association) bronze, silver and gold personal survival swimming awards whilst he was still at school. Furthermore, Mr Davis was well built, weighed about 15 stone and had a significant amount of subcutaneous body fat. As a result, he was still very much alive and in good condition when a member of the Celtic King's crew first spotted him shortly before 1230, about 50 minutes after he had gone overboard.[62]When he first arrived on the bridge, Captain Williams' intention was to launch one of the Koningin Beatrix's rescue boats if the man overboard was located. However, he very soon came to the conclusion that the weather conditions were such that it would not be possible to launch either of the Koningin Beatrix's rescue boats. That decision is not criticised and was plainly correct, having regard to the adverse weather and sea conditions. However, as Captain Williams accepted and as he realised at the time, it did mean that any rescue of the man overboard by retrieving him to the Koningin Beatrix would be extremely difficult and, to all intents, virtually impossible. In my view, the obvious and extreme difficulties in effecting a rescue to the Koningin Beatrix in such conditions made it all the more necessary for there to be a clear and carefully prepared plan of rescue.[63]The virtual impossibility of rescuing a man overboard by recovering him to a high-sided vessel like the Koningin Beatrix, when its own rescue boats could not be launched because of bad weather, was a problem of which Stena and the maritime Industry had been well aware for some time, following the report into the Estonia disaster. The Estonia was a passenger ro-ro ferry that foundered in the Baltic on 28th September 1994, with a loss of 852 of her 989 passengers and crew. The weather conditions at the time were gale force winds and wave heights of 3 to 4 metres. As a result, none of the vessels participating in the ensuing rescue operations was able to launch a lifeboat or rescue boat and very few people were rescued, because of the extreme difficulties encountered in retrieving people to the vessels themselves.[64]The investigation into the Estonia disaster resulted in an extensive report that received wide publicity in the Industry. As a result and as Captain Williams readily acknowledged in cross examination, by the late 90s it was well recognised that existing on-board facilities of vessels such as the Koningin Beatrix (i.e. high sided ferries and the like) were wholly inadequate for the purpose of saving the life of a man overboard in weather conditions that were so adverse as to prevent the launch of rescue boats. Captain Williams also accepted that he had been well aware of the possibility of a man overboard occurring in weather conditions when it would not be possible to launch the Koningin Beatrix's rescue boat. This awareness on Captain Williams' part was not surprising, given the significant incidence of bad weather crossings on the Rosslare/Fishguard route.[65]However, despite what was well known about the near impossibility of rescuing a man overboard to a high sided vessel like the Koningin Beatrix in adverse weather conditions, neither Captain Williams nor any of the Koningin Beatrix's officers and crew had received any advice or guidance nor had they undergone any training with regard to the rescue of a man overboard in such circumstances. Furthermore, Stena had not carried out any appropriate risk assessment of such an emergency. In my view, given the widespread awareness of the problem and the likelihood of such an emergency occurring on the Fishguard/Rosslare crossing, these were plainly serious and negligent failures and omissions on the part of Stena. I am fortified in that conclusion by the recommendations made by MAIB in its subsequent report into the incident (as to which see paragraphs 106 and 107 below). I also agree with Mr Kverndal's submission that, even if the foregoing shortcomings on the part of Stena were representative of the standards of the industry at the time, that does not excuse them: see, for example, Barkway ~v~ South Wales Transport Co (1950) 1 All ER 392 (HL).[66]As it happened, the fast rescue boat with which Celtic King was equipped and which was being readied for launch was of a type capable of being launched in the prevailing weather and sea conditions. Moreover, the Celtic King's rescue boat was crewed by ex-fishermen, skilled in handling such craft in such heavy weather conditions. As Captain Williams readily acknowledged, the Celtic King's fast rescue boat was obviously the best option by far for achieving a successful rescue of Mr Davis once he was found alive. Furthermore and importantly, Captain Beetham accepted in evidence that there was no reason to suppose that the Celtic King's fast rescue boat would have had any particular problem in retrieving Mr Davis. In the event, although the rescue boat and its crew were ready for launch by about 1228, it was not actually launched.[67]As I have already stated, approximately 50 minutes after he had gone overboard, Mr Davis was located in the water by one of the Celtic King's crew. At that stage Mr Davis was about 100 yards off the Celtic King's starboard quarter. Remarkably, he was still alive and in good condition – emphatic proof of his swimming and survival skills and his determination to live. The information was passed to the Koningin Beatrix and at 1232 the Koningin Beatrix radioed the Irish CG and confirmed that the Celtic King had located the man overboard.[68]As I have already indicated, I am satisfied that the Celtic King's fast rescue boat and its crew were ready to launch by 1228 (see the official log entry and the statements of her Master, Captain David Ganderton to that effect). Furthermore, I am also satisfied that, at that stage, Captain Ganderton was clearly prepared to launch the fast rescue boat if requested to do so by the Master of the Koningin Beatrix (i.e. Captain Williams), who was the officer responsible for coordinating the rescue of the man overboard. I am therefore satisfied that the Celtic King's fast rescue boat was fully crewed and both ready and available to launch at a stage when Mr Davis was still alive in the water. Furthermore, Captain Ganderton remained willing to go ahead and launch the fast rescue boat for as long as Mr Davis remained alive in the water.[69]At about 1229, the Koningin Beatrix's bridge team also had Mr Davis in sight. I accept Mr Kverndal's submission, that Captain Williams' suggestion that the log entry is incorrect as to the time of sighting, is wrong for the reasons given in paragraph 80(1) and (2) of Mr Kverndal's written closing submissions, with which I agree. When first seen from the bridge of the Koningin Beatrix, Mr Davis was about 350 to 400 metres away from the ship. The course recorder trace shows that at 1229 the ship was slowly turning to port from a heading of 270. The wind was thus on the Koningin Beatrix's port bow.[70]Although Captain Williams' evidence was to the effect that Mr Davis was fine on the starboard bow when he was first spotted and that, in effect, he never came aft of the stem, I am satisfied that Mr Davis was in fact much further round on the starboard side than that. In my view, it is very probable that, at or shortly after the time he was first spotted, there was a stage where Mr Davis was or appeared to be off the Koningin Beatrix's starboard quarter. There was a considerable body of eyewitness evidence (the general thrust of which I accept as accurate) which clearly shows that Mr Davis was much more on the Koningin Beatrix' starboard beam when he was seen by passengers and crew (see the summary of that evidence in paragraph 80(2) of Mr Kverndal's written closing submissions). Furthermore, I accept Mr Kverndal's submission that there was probably also a bona fide report to the bridge that the man overboard had been sighted "astern" or "by the stern" and that this gave rise to the reference in the ship's log of the man overboard having been "sighted starboard side astern".[71]After Mr Davis was spotted, Captain Williams decided to go ahead and try to rescue him by recovering him to the ferry. His account of the decision-making in his evidence in chief was as follows (see paragraphs 40 and 42 of his first witness statement):
"40. After we had actually spotted Mr Davis the discussions on the bridge turned to how we were going to actually rescue Mr Davis. Bob Weale and I quickly discounted the possibility of launching a rescue boat – we thought that it was just far too dangerous to launch a boat from the side of the vessel in the prevailing weather conditions. … 42. We therefore considered what other options there were. We considered the only viable option was to attempt to recover Mr Davis through the bunker door. This meant getting a line to Mr Davis and guiding him along the side of the vessel to the bunker door where we hoped to be able to manhandle him up into the vessel using a rope ladder. We did not consider that there was any other viable alternative (such as opening the bow doors or one of the stern doors)."
[72]In my view, it is significant that the only rescue options considered by the Koningin Beatrix bridge team were restricted to considering how Mr Davis could be recovered to the Koningin Beatrix herself. The Celtic King was not requested to launch her fast rescue boat, although by then it was ready to be launched and Captain Ganderton was prepared to launch it, once he had manoeuvred his vessel to provide the necessary lee (which would have taken a few minutes). I do not accept Captain Williams' suggestion that there might have been some problem that was delaying the launch of the Celtic King's fast rescue boat. It is clear from both the Celtic King's log and Captain Ganderton's evidence (which is disarmingly frank and which I accept as true and accurate) that the fast rescue boat was ready for launch at about 1228. As already indicated, I am also satisfied that the Celtic King's fast rescue boat was ready for launch at a time when Mr Davis was still very much alive and well before he was reported as face down in the water. In my opinion, it was obvious and should have been obvious to Captain Williams at the time that the Celtic King's fast rescue boat was in a position to rescue Mr Davis much more quickly and with far less danger to him than Captain Williams' planned retrieval to the Koningin Beatrix.[73]In effect, all that was required was for the Koningin Beatrix to request the Celtic King to go ahead and launch. Had that request been made, I have no doubt that the rescue boat would have been launched and (as I shall explain shortly) the strong probability is that Mr Davis would have been rescued alive by about 1245 (see paragraph 79 below). I reject Captain Williams' suggestion that there was no need for him to tell the Celtic King to launch her fast rescue boat because they had already volunteered to do so. As Captain Beetham readily accepted, as the on-scene co-ordinator it was for Captain Williams to request the Celtic King to launch her fast rescue boat and that, until that request was made Captain Ganderton would have been wrong (and answerable to his crew if there had been an accident) to go ahead and launch. I accept Mr Kverndal's submission that Simon Wood, as the communications officer, should have been communicating with the Celtic King to monitor her readiness to launch and then passing on that information to Captain Williams, information that Captain Beetham agreed was particularly important. In my view, Captain Williams' lack of awareness of the Celtic King's state of readiness to launch was probably due to an inadequate flow of information between Simon Wood and himself. However, in the event, the Celtic King was not requested to launch her fast rescue boat and Captain Williams proceeded to go ahead with his plan (such as it was) to manoeuvre the Koningin Beatrix close to Mr Davis in order to try and retrieve him through the vessel's bunker door (starboard side).[74]In my view, Captain Williams' critical decision to go ahead and try to carry out the rescue of Mr Davis to the Koningin Beatrix was a calculated decision, reached after discussion with another bridge officer (Captain Weale). Although Captain Williams was faced with an emergency (i.e. a man overboard), he had plenty of time between the commencement of the emergency and the time that Mr Davis was located in which to decide on his course of action in effecting the actual rescue. In my view, therefore, the decisions that Captain Williams had to and did make in order to rescue Mr Davis were not "agony of the moment" decisions of the Bywell Castle type of case.[75]I am satisfied from the eyewitness evidence that Mr Davis was in good condition as the Koningin Beatrix was manoeuvred towards him, despite having been in the water for about 50 minutes by then. This remarkable state of affairs was due to Mr Davis' determination to live, his significant survival and swimming skills and the fact that he had good body insulation, i.e. a good layer of sub-cutaneous fat. Between about 1230 and 1240, Mr Davis was seen by various eye-witnesses to be treading water and to be waving one or both of his arms above his head (in particular, I accept the evidence of Mr Rogers, Mr Korodi and Mr Stone on this particular aspect of the matter as generally accurate and reliable). Plainly, Mr Davis had been very successful in coping with the difficult sea state and had obviously got used to it. As Mr Davis got closer to the starboard side of the ship, he was also able to and did speak back to those on board (for example, to Emyr Williams, a member of the crew). Although Mr Korodi expressed the view, in his statement to the Garda, that Mr Davis' movements had become slower as he came close to the ship and just before he passed out of sight under the flare of the bow, I am satisfied that, having regard to the evidence as a whole, Mr Davis' physical condition had not by then deteriorated significantly in comparison with his condition when first sighted at about 1229.[76]I am satisfied from the eyewitness evidence of Mr Davis' general condition, observed behaviour and actions, as he came closer to the Koningin Beatrix at about 1230, that his core body temperature was still above 35 Celsius (the temperature that marks the onset of hypothermia and the progressive loss of muscular function, leading to drowning) and remained so as he passed out of view under the flare of the starboard bow. For reasons that I will explain shortly, I also accept Dr Golden's predicted overall survival time for Mr Davis of 1.5 to 1.75 hours from initial immersion. I am therefore satisfied that, absent any intervening event to disrupt or interfere with his ability to continue swimming/treading water as he had already done for some 50 minutes, Mr Davis would have survived for about a further 40 to 55 minutes before drowning (i.e. until about 1310 to 1325).[77]On this aspect of the matter, I found the evidence of Stena's survival expert witness, Dr Edward Oakley ("Dr Oakley"), very unsatisfactory. He did not appear to be willing to take properly into account what was actually seen and observed at the time. Despite acknowledging that Mr Davis' observed behaviour at around 1230 meant that his core body temperature was still above 35C (and that, therefore, hypothermia had not yet set in), Dr Oakley persisted in maintaining that this was not something that he either needed to or should take into account when estimating the rate of Mr Davis' loss of core body temperature and his likely temperature at various times (and thus his likely survival time). Dr Oakley therefore steadfastly (and unreasonably, in my view) refused to adjust or amend his illustrative graph, which showed Mr Davis' calculated temperature at 1230 as being between 31.5C and 34.5C, a temperature range that (if correct) would mean that, by that time, Mr Davis would have been suffering significant loss of muscular function due to the onset of hypothermia. For the critical period from about 1225 to 1245, the information provided by Dr Oakley's graph was positively misleading in the light of the observed facts as to Mr Davis' condition during that period. Nevertheless, Dr Oakley singularly failed to give me any satisfactory reason for not amending his graph to take account of the observed facts. In contrast, Dr Golden seemed to me to be entirely objective and was, in my view, an altogether more impressive expert witness than Dr Oakley. To the extent that they differed, I prefer the evidence of Dr Golden.[78]Having regard to the view that I have formed as to the eyewitness evidence of Mr Davis' behaviour, general condition and actions at about 1230 (see paragraph 75 above), I am satisfied that Dr Golden's amended graph, showing Mr Davis' predicted body cooling curve is far more reliable and helpful than Dr Oakley's. According to Dr Golden's amended graph, Mr Davis' core body temperature would still have been above 35C at 1235 and I am satisfied that this is consistent with and supportive of Dr Golden's predicted overall survival time (see paragraph 76 above). I also accept Dr Golden's evidence that the sudden drop in temperature, as shown on his graph between 1240 and 1245, takes proper account of the heat exchange effect of Mr Davis' inhalation of substantial quantities of cold seawater. I will come to how Mr Davis came to inhale that seawater shortly, when considering how he came to drown.[79]I accept Mr Kverndal's submission that, if the Celtic King had been requested to launch her fast rescue boat as soon as it was ready at about 1230, the rescue boat would have been alongside Mr Davis by about 1245. Mr Davis would then either have been rescued alive into the rescue boat or provided with flotation devices and encouragement until the imminent arrival of the rescue helicopter R116. In fact, R116 was on the scene at about 1254 and had Mr Davis in sight by 1255. Either way, he would have been rescued alive. In my judgment, it is clear that Mr Davis would have survived long enough (by a comfortable margin) to be rescued successfully by either the Celtic King's rescue boat or R116 or a combination of the two if something had not occurred to prevent him, in effect, from continuing to swim and tread water successfully as he had done for the last 50 minutes. It is to that aspect of the matter that I now turn.[80]Between about 1230 and 1234, Mr Davis was very close to the Koningin Beatrix on her starboard side. As I have already indicated, he was still very much alive, he was in good condition and was seen to be treading water and waving. His core body temperature was still above 35C and hypothermia had not yet set in. As he came close to the ship, an attempt by the crew to throw him a lifebuoy was unsuccessful. Captain Williams' plan was to recover Mr Davis through the bunker door. This meant getting a line to Mr Davis and guiding him along the side of the ship to the bunker door, through which it was hoped to be possible to manhandle him.[81]In my view, Captain Williams' rescue plan ("the rescue plan") was ad hoc, ill prepared and not well thought out. No real thought was given as to how precisely the rescue was to be carried out and such preparation as did take place was hurried and without the benefit of any thinking/discussion in advance. The planning only started when Mr Davis was spotted alive. At most the rescue plan was a plan in outline and was, as it seems to me, wholly inadequate for such a difficult and demanding task. In my judgment, the failure to prepare a careful and detailed rescue plan or to have such a plan available was negligent. Furthermore, the rescue plan was, as Captain Williams should have realised, doomed from the outset and had no hope of success. There was no real issue as to whether such was the case. Thus, in paragraph 16.14 of his report Captain Beetham expressed the view that any attempt to retrieve to the ferry was "virtually impossible" and in cross-examination he accepted that it was "impossible" and "doomed to failure".[82]In my view, Captain Williams' rescue plan was so hopeless and so risky that he should not have proceeded with it unless there was simply no other rescue option available to him. In the circumstances of this case and having regard to the other rescue options that were available, Captain Williams' decision to go ahead immediately with his own plan of rescue was, in my opinion, negligent. Unfortunately, Captain Williams was so intent on carrying out his own rescue plan that he did not give any real thought to the available and greatly superior option (an obviously effective, quicker and much safer option – see above) of requesting the Celtic King to launch her fast rescue boat as soon as it was ready. Had he done so, Mr Davis would have been saved. His failure to do so was, in my view, negligent.[83]The rescue plan presented the would-be rescuers with extremely difficult if not insuperable problems in the prevailing weather and sea conditions, such as how to get a line to Mr Davis, how to manoeuvre him safely along the side of the ship, how to secure him in the water and how to manhandle him over the belting and in through the bunker door. The execution of this particular rescue plan was bound to expose both Mr Davis and the crew-members carrying it out to significant risk of serious injury, if not worse. Furthermore, I am satisfied that, in the weather and sea conditions prevailing that day, to open the bunker door and to keep it open for long enough to retrieve Mr Davis to the ship (i.e. at least 20 minutes, assuming it could be done at all) would have exposed the Koningin Beatrix to a very significant and wholly unacceptable risk of sufficient water entering the car deck to affect the stability of the ship.[84]I therefore accept Mr Kverndal's submission that, in effect, it was common ground between the maritime experts that Captain Williams' decision to attempt retrieval of Mr Davis through the bunker door (i.e. the key element of the rescue plan) was not only doomed to failure but, in the sea and weather conditions then prevailing and with the obvious real risk of waves entering and destabilising the vessel, was plainly negligent and one that Captain Williams should have been given appropriate advice and instructions to avoid. In my view, Captain Beetham's evidence to that effect, given during the course of his cross-examination, was both clear and unequivocal. It suffices to quote the following passage from the transcript of his evidence on Day 9 (starting at page 178):
"Mr Kverndal: And I suggest to you that there was quite a high risk of a real catastrophe if crewmen tried to effect a retrieval through bunker doors in the sort of circumstances that prevailed on 29th October 2000. Captain Beetham: There could have been. Mr Justice Forbes: Do you agree? Captain Beetham: There could have been, yes. Mr Kverndal: There could have been a catastrophe. A. Yes. Q. And if Captain Halanen had carried out a risk assessment of rescuing a man overboard through the only means available to the ferry, namely through the bunker door, he should have come to the same conclusion as you, should he not, that there was a potential catastrophe if this method were tried? A. Yes. Q. And he should have warned his masters that they should under no circumstances attempt such a retrieval method? A. Yes. Q. Yes? A. Yes. Q. And he should have told them the reason why they should under no circumstances attempt such a retrieval method: because it could be catastrophic? A. I think they would know that, but I think an explanation is always helpful. Q. And he should have given proper instructions, training and procedures which would warn the masters of his ships about this? A. Yes. I think you are duplicating the bit with instructions and procedures. Q. One way or another, he should have made it very clear to the masters of his ships that this was a potentially catastrophic retrieval method? A. Could be, yes. … Q. But in the circumstances of this case, no reasonable and prudent master should ever have attempted to retrieve through the bunker door, should he? A. No. Q. Thank you. … … Q. … I was just going to suggest that the thrust of Captain Halanen's evidence is that he left all these matters to the discretion of the master. A. Yes. Q. You will remember that. In the light of what you have just been telling the court, that was wrong, was it not? A. He should have been given guidance. Q. And the failure to give guidance meant that Stena failed to meet the standards, which one would expect of a reasonable and prudent ship owner? A. No. At that time, they were doing what all the ship owners did."
[85]Although Mr Tillett conducted a careful re-examination of Captain Beetham with regard to (inter alia) this part of his evidence in cross-examination, I am satisfied that, on analysis, Captain Beetham did not really retract or modify the main thrust and meaning of his earlier evidence from which I have just quoted the above passage. I agree with Mr Kverndal that in his answers in re-examination Captain Beetham fell into the trap of creating a false antithesis between a retrieval attempt through the bunker door and doing nothing at all: see paragraph 106 (1) to (5) of Mr Kverndal's written closing submissions. As Mr Kverndal observed, it was never any part of the Claimant's case that Captain Williams should have done nothing at all, still less that he should have "steamed away" (Transcript, day 10, page 47). It was the Claimant's case that Captain Williams should have been active in his role as on-scene co-ordinator (in particular, by requesting the Celtic King to launch its fast rescue boat), he should have manoeuvred the Koningin Beatrix upwind so as to provide a lee, he should have used his best endeavours to get flotation aids (such as lifejackets or lifebuoys) to Mr Davis and he should have given appropriate reassurance and encouragement by loudhailer.[86]I am therefore satisfied that not only did the planned attempt to retrieve Mr Davis through the bunker door expose the Koningin Beatrix to the risk of catastrophe, but it also exposed to danger both Mr Davis and the crew-members who were to try and effect his rescue in that fashion (particularly those who would have to manhandle him aboard). As I have already indicated, Captain Williams should not have considered proceeding with such a rescue plan unless there was simply no other option available to him.[87]Essentially, the negligent decision to proceed with the rescue plan despite all its obvious risks and insurmountable difficulties stemmed from the fact that it was devised on the hoof, at the last minute and without there having been any advance planning carried out or thought given (either by Stena or by Captain Williams) as to how to conduct the rescue of a man overboard from a vessel like the Koningin Beatrix, in circumstances where it was not possible to launch the ship's own rescue boats. This was so, despite what had been learnt from the Estonia disasterabout the serious difficulties of dealing properly with such an emergency.[88]On this aspect of the matter generally, I found the evidence of Stena's Group Safety Adviser, Captain Raymond Garth Halanen ("Captain Halanen"), to be far from satisfactory and wholly unpersuasive. Whilst I do not suggest that Captain Halanen was less than frank in his answers, he was undoubtedly unduly defensive and, in a significant number of instances, unreasonable in both answer and manner. I base that assessment on his demeanour whilst giving evidence (in particular, whilst being cross-examined) and on the various criticisms of his evidence made by Mr Kverndal in paragraph 68 of his written closing submissions, with which criticisms I find myself in complete agreement (other than with the comment in the final sentence of subparagraph (4)).[89]I therefore agree with Mr Kverndal's submission that Stena (and Captain Williams) would have benefited very considerably if proper regard had been given to the following observations of Lord Justice Clarke in paragraph 25.1 of his interim report into the Marchioness disaster (published on 2nd December 1999, almost a year before the events with which this case is concerned):
"As this Inquiry has proceeded, I have become more and more convinced of the importance of risk assessment as the correct approach to questions of maritime safety, both generally and in the context of the Thames. The purpose of risk assessment is to try to assess relevant risks in advance so that appropriate steps can be taken to put measures in place to eliminate or minimise them. It contrasts starkly with the historical approach which involved waiting until a casualty occurred before trying to learn lessons from it and improving, say methods of design, construction, equipment or operation of ships … Such an approach is surely no longer acceptable. That lesson has been learned much more quickly in the non-maritime field. The evidence which I have seen suggests that it is gradually being learned in the maritime field, albeit somewhat slowly."
[90]In my view, if Stena had properly taken into account the lessons of the Estonia disaster and/or had adopted the type of approach advocated by Lord Justice Clarke in his interim report into the sinking of the Marchioness, Stena would have provided and Captain Williams and his officers would have been given appropriate advice and training with regard to the particular difficulties involved in effecting the rescue of a man overboard in weather conditions in which it was not possible to launch the ship's own rescue boats. I have no doubt that if such training and advice had been given, it would have emphasised the significant risks to ship, crew and casualty and the almost impossible nature of any attempt to retrieve the casualty to the ship in such conditions and, in particular, it would have stressed the need for the Master to consider all other available rescue options. As I have already indicated, Stena's palpable failure to have proper regard to the lessons learnt from the Estonia disaster and its failure to adopt the type of approach recommended by Lord Justice Clarke in his Marchioness report were plainly negligent. These failures and omissions resulted in Captain Williams and the officers and crew of the Koningin Beatrix not having been given the sort of advice, guidance and training that was needed in order to deal properly with the emergency with which they were faced on 29th October 2000.[91]Appropriate advice and training would have provided Captain Williams with the clear guidance that he needed in the situation that he faced that day, namely that he should only consider resorting to his type of rescue plan if there was no other available option for recovering the casualty. In short, the appropriate advice and training would have reflected the amendments that were made to Stena's Standing Orders and Operational Procedures after the event (i.e. in January 2002), in particular the new subparagraphs (1), (2), (12) and (13) that were added to paragraph 3.9.2.2, as follows:
"3.9.2.2 Action by the Ship's Company (1) The Master will take charge when he arrives on the bridge and manoeuvre the ship as required. (2) Working Party muster on the bridge. … (12) If for any reason the rescue boat cannot be launched the Master should consider other means of recovery. The most efficacious means may be by helicopter or RNLI lifeboat. It is essential that the Coastguard is advised of this at an early stage of the operation. (13) Where possible a lifebuoy, lifejacket, rocket line with flotation device or any other means to assist flotation should be thrown to the person in the water to enable him to remain afloat pending the arrival of the helicopter or lifeboat."
[92]As it was, Captain Williams had not received any advice or training in dealing with the rescue of a man overboard in conditions where it was not possible to launch the ship's own rescue boats, nor was there any guidance to be gained from Stena's current standing orders and procedures (in striking contrast with the 2002 amendments). He therefore went ahead with his rescue plan without giving any real consideration to the other means of recovery (i.e. the Celtic King fast rescue boat and the fairly imminent arrival of the rescue helicopter R116).[93]Captain Williams actually proceeded to carry out his rescue plan by manoeuvring the Koningin Beatrix so as to bring her as close to Mr Davis as possible and as quickly as possible. However, it was common ground between the maritime experts that, in order to carry out the type of rescue attempt he had in mind, Captain Williams should have manoeuvred the Koningin Beatrix so as to position her an appropriate distance directly upwind of Mr Davis (Captain Beetham suggested 40 to 50 metres, Captain Jubb suggested 200 to 250 metres). Captain Williams should then have stabilised the ship and let her drift down towards Mr Davis under her own leeway, making sure that there was no residual movement of the ship forward or astern (see, for example, Captain Beetham's evidence at Transcript, day 10, pages 7 and 8). I accept Captain Beetham's description of this method of approaching a man or object in the water as "standard ship handling" (Transcript, day 10, page 9) and "a fairly standard manoeuvre" (Transcript, day 10, page 11).[94]Whilst Captain Williams manoeuvred the ship towards where Mr Davis was in the water, Captain Weale left the bridge to go down to the car deck (deck 3) in order to try and retrieve Mr Davis through the bunker door. Mr Wheale was accompanied by Bob Allan, who had woken up by then, and one or two other crewmembers. On the way down they collected some rope and a life buoy. There was no clear plan as to how they were to carry out the recovery. Nobody obtained, let alone put on, an immersion suit. In the event, the bunker door was not opened, because they were informed that the man overboard was now on the port side of the vessel. The rescue team therefore moved across to the starboard side and opened the pilot door.[95]The extreme difficulty and danger of trying to retrieve Mr Davis to the Koningin Beatrix through one of the hull doors (as well as the lack of any proper plan for doing so) is very apparent from this passage in Captain Weale's evidence in chief (see paragraph 14 of his witness statement):
"The pilot's door was opened. The scale of our task was immediately apparent because the door was approximately 10 feet above the waterline, there was belting around the ship (which would prove an obstacle to manhandling anyone on board) and the sea was very rough. Furthermore, the doorway was only wide enough for one man to stand in the doorway at once and there was generally little room for manoeuvre because of the design of the ship. There was clearly no time to rig a block and tackle to winch the casualty on board. The only way we could get the casualty on board would have been for a member of the crew to don an immersion suit, climb down the pilot ladder and attempt to pull the casualty back on board."
[96]As I have already indicated, I am satisfied from the totality of the eyewitness evidence (in particular that of the passengers) that, when he was first spotted from the bridge, Mr Davis was much further round to starboard of the Koningin Beatrix than was suggested by Captain Williams. In my view, it is also clear that Captain Williams' final approach was not such as to position and stabilise the Koningin Beatrix an appropriate distance upwind of Mr Davis. Instead, Captain Williams' manoeuvred the Koningin Beatrix so that Mr Davis was dangerously close to the ship's starboard side whilst the vessel still had some way on. The vessel's way was taken off by going astern, thus bringing Mr Davis up towards the starboard bow. This caused Captain Williams to "zero" (i.e. shut down) her bow thrusters and, as a result, the Koningin Beatrix developed an "uncontrollable" swing to starboard as or shortly after Mr Davis disappeared from view under the flare of the bow. The time was then about 1234. The course recorder trace shows that the Koningin Beatrix was under way and turning to starboard from a heading of about 204 at 1232 to one of 288 at 1234 before stabilising for a very short time and then swinging "uncontrollably" to about 313. When Mr Davis came into view again at about 1240 he was on the port side of the vessel, face down in the water and apparently lifeless. Once it was apparent that Mr Davis was lifeless, Captain Weale abandoned his rescue attempt and proceeded to shut the pilot door.[97]It was therefore in the six minutes or so that elapsed after he passed out of view beneath the flare of the starboard bow in good condition (about 1234) and his emergence on the port bow face down and apparently lifeless (about 1240), that Mr Davis met his death by drowning. These final and critical moments of the attempted rescue were the subject of the following important agreement between Captain Beetham and Captain Jubb:
"13. Crossing the bow. In the prevailing conditions the manoeuvring of the vessel without any fixed reference would be extremely difficult. We agree that the man overboard came too close to the starboard bow, necessitating the shut down of the bow thrusters. The vessel was probably moving astern and took an uncontrollable swing to starboard, bringing the man overboard across to the port bow. MJJ and EHB agree that the likelihood of contact with the bow is remote."
[98]There was no evidence as to engine orders or the vessel's speed through the water during the period of Captain Williams' final approach. However, the course recorder trace does give important information with regard to both course and time (after appropriate adjustment). Having regard to this information, the agreement reached by the experts and the evidence of the various eyewitnesses, I am satisfied that the principal sequence of events in the period immediately leading up to Mr Davis' death were as follows.(1) Mr Davis was first spotted from the Koningin Beatrix at about 1229 at a distance of about 350 to 400 metres from the ship. Shortly afterwards, at about 1232, the Koningin Beatrix started to turn 90 to starboard.(2) Mr Davis was about 4 or 5 points (perhaps even more) off the starboard bow both before and in the very early stages of the vessel's 90 turn to starboard. He was in good condition, treading water, riding the waves and, from time to time, waving either one or both arms.(3) The effect of the Koningin Beatrix's 90 turn to starboard was to bring Mr Davis much finer on to the starboard bow.(4) The Koningin Beatrix still had considerable way on and Mr Davis passed down the starboard side going aft of the beam, close enough for a crew-member (Emyr Williams) to shout encouragement down to him. A report reached the bridge that the man overboard was "astern" or "by the stern". Mr Lewis wrote this down on a scrap of paper and it was eventually recorded in the log.(5) By this stage the Koningin Beatrix had been put astern, with the result that Mr Davis moved back up the starboard side until he disappeared from view under the flare of the bow. He was then off the starboard bow and very close to it. He was still in good condition when he passed out of view.(6) At 1234 the Koningin Beatrix signalled, "We are preparing to open pilot door to try and assist Celtic King preparing to launch lifeboat".(7) As Mr Davis disappeared from view under the flare of and because of his extreme proximity to the bow, Captain Williams "zeroed" the bow thrusters. Unfortunately, this resulted in an uncontrollable swing of the bow to starboard as the wind took full effect on it. At 1238 the Koningin Beatrix signalled, "Have lost sight of casualty…right underneath our bow… Trying to get line to him now".(8) As a result of the bow swinging over and past him, Mr Davis appeared to have moved from the starboard to the port side. When he did come into view on the port side, Mr Davis was face down in the water and apparently lifeless.(9) Once it became apparent that Mr Davis was lifeless, Captain Ganderton decided that he was no longer prepared to risk his crew by launching the Celtic King's fast rescue boat and, at 1242, the Celtic King signalled "Not prepared to risk my men".[99]Despite his considerable experience and skills as a ship handler, I have come to the conclusion that Captain Williams' manoeuvres as he made his final approach to Mr Davis fell significantly short of what were to be expected of a reasonably competent and prudent Master Mariner and was therefore negligent. Instead of adopting the standard method of approaching a man in the water by manoeuvring his vessel an appropriate distance upwind, stabilising it and then making leeway down towards the casualty, Captain Williams went dangerously close to Mr Davis too quickly and had him close alongside whilst the vessel still had way on, making it necessary to go astern. This directly led to the need to stop the bow thrusters when Mr Davis came dangerously close to the bow, with the result that control of the bow was temporarily lost and it swung to starboard very close to and above Mr Davis. All these problems (and the resulting serious danger to Mr Davis) resulted from the failure of Captain Williams to manoeuvre his vessel in the standard manner suggested by the two maritime experts. In my view, the direct consequence of these negligent manoeuvres was that Mr Davis was faced with a significant change in the sea conditions that he had to cope with and, as a result, he drowned (see paragraphs 100 to 103 below).[100]I accept Mr Kverndal's submission that as Mr Davis came close to the bow of the ship, which then proceeded to swing very closely over and across him, he moved from a particular sea state, in which he had been surviving and with which he had been coping very well for almost 50 minutes, into a more hazardous and terrifying situation. The sea state close to the ship's hull (i.e. within 5 metres) was confused, with secondary and tertiary waves or wavelets and "splash-back" or "lop", all caused by waves meeting and rebounding from the ship's hull combined with the pitch and roll of the ship in the heavy seas. This confused sea state was more pronounced on, but not confined to, the windward side of the vessel (the port side). I have no doubt that the sea state in the immediate vicinity of the bow was particularly confused as the vessel surged and pitched heavily in what was, in effect, a head sea.[101]I therefore accept Mr Kverndal's submission that the evidence shows (as commonsense would suggest) that the sea state in the vicinity of the Koningin Beatrix's bow and extending out for at least 5 metres was very confused, with rebound waves, interference patterns, short spiky seas, white water, splash-back and spray. I also accept his submission that for a man in the water, passing close under the bow of the Koningin Beatrix, as it swung though 25 for a distance of approximately 50 metres and with a relative height of 6 metres, would have been a truly terrifying experience.[102]As Dr Golden explained, the relatively small high-frequency waves to be found in the type of confused sea that Mr Davis entered as he came close to the ship's hull lack the energy to lift a human body in the water and thus can surge up and around the mouth, causing particular difficulty in breathing. A man's "freeboard" in the water is so small that waves or wavelets of this type can cause considerable problems to the man in the water, particularly if he is unable to keep his back to them.[103]I have no doubt that Dr Golden was right in his view that the cause of Mr Davis' drowning was the significant change in the sea conditions that he had to cope with, brought about by his proximity to the Koningin Beatrix, particularly as he passed under the flare of her bow. In my view, Mr Davis probably started to drown in the very confused sea that he met as he passed under the Koningin Beatrix's bow as it swung to starboard. I have no doubt that the sight of the bow plunging heavily right next to him would have been absolutely terrifying and probably led to feelings of panic, thus greatly reducing his ability to cope with the change in conditions. I am therefore satisfied that Mr Davis drowned because the change in wave conditions close to the ferry and the terrifying nature of the close encounter with the ship's bow materially prejudiced his ability to keep his airways clear, with the result that he was unable to avoid the inhalation of the water that led to his drowning by the time he re-emerged into view on the port side of the vessel.[104]As I have already indicated, Mr Davis' condition when first spotted was such that he would have survived for long enough to be rescued by either the Celtic King's fast rescue boat (i.e. until about 1245) or the helicopter R116 (i.e. until about 1300). In my view, his death by drowning was caused by the change in conditions with which he was faced as the result of Captain Williams' decision to try and retrieve him to the Koningin Beatrix and the manner in which he put that decision into effect.[105]At about 1254, the rescue helicopter R116 arrived on the scene. By 1300 the helicopter's winch man, Alan Gallagher ("Mr Gallagher"), had succeeded in recovering Mr Davis' body from the sea. At 1315, the helicopter landed at Wexford hospital with Mr Davis' body on board. At 1605, Mr Davis was formally pronounced dead, following a prolonged and unsuccessful attempt at resuscitation by the hospital's medical team.[106]On the same day, the MAIB was informed what had happened. The MAIB is a government agency charged with investigating accidents at sea. The MAIB's fundamental purpose in investigating such an accident is to determine its circumstances and cause, with the aim of improving the safety of life at sea and the avoidance of accidents in the future. It is not the MAIB's purpose to apportion liability, nor, except so far as is necessary to achieve the fundamental purpose, to apportion blame: see the Merchant Shipping (Accident Reporting and Investigation) Regulations 1999. Having carried out its investigation into the incident, the MAIB published its report and recommendations in December 2001 ("the MAIB report").[107]In my opinion, having regard to my own conclusions as stated in paragraphs 65, 90 and 91 above, it is of some significance that the recommendations in the MAIB report include the following:
"SECTION 4 – RECOMMENDATIONS Stena Line is recommended to: … 2. Amend its company standing orders and operational procedures manual, sections 3.9.2.1 and 3.9.2.2 to include more detailed procedures to be taken in the event of a man overboard in conditions which do not allow the lowering of a rescue boat. … 7. Undertake a written risk assessment regarding the use of the fast rescue boat and rescue boats in adverse weather conditions."
[108]Conclusion. For the reasons given in my findings of fact, I am satisfied that Mr Davis' death by drowning was caused by the fault and/or neglect (i.e. the negligence) of Stena and Captain Williams in the various respects identified in the preceding paragraphs of this judgment (see, in particular, paragraphs 60, 65, 73, 81, 82, 84, 86, 87, 90, and 97 above). Having regard to those conclusions, which, as it seems to me, deal with the main allegations of negligence in this case, it is not necessary to prolong this already lengthy judgment by considering the other less significant allegations. Furthermore, for the reasons given in paragraphs 34 to 36 and 51 to 55 above, I am satisfied that Mr Davis' death was not caused by any fault or neglect on his own part. There will be judgement for the Claimant accordingly.