Rhesa Shipping CO SA v. Edmunds [1985] UKHL 15

House of Lords
Between
Rhesa Shipping CO SAAppellantEdmundsRespondent
Before
Lord Fraser of TullybeltonLord DiplockLord RoskillLord Brandon of OakbrookLord TemplemanDate 16 May 1985
My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. I agree with it, and for the reasons given by him I would allow this appeal.

LORD DIPLOCK

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. I agree with it and for the reasons which he gives I would allow the appeal.

LORD ROSKILL

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. For the reasons which he gives in his speech I too would allow this appeal.

LORD BRANDON OF OAKBROOK

My Lords,This appeal arises out of two consolidated actions in the Commercial Court in which the owners of the vessel " Popi M" ("the ship") claim against hull underwriters for the alleged total loss of the ship by perils of the sea. The shipowners succeeded at first instance (Bingham J.) and an appeal by underwriters to the Court of Appeal (Sir John Donaldson M.R. and O'Connor and May L.JJ.) was dismissed. Underwriters now, with the leave of the Appeal Committee, bring a further appeal to your Lordships' House.My Lords,the appeal does not raise any question of law, except possibly the question what is meant by proof of a case "on a balance of probabilities." Nor do underwriters challenge before your Lordships any of the primary findings of fact made by Bingham J. The question, and the sole question, which your Lordships have to decide is whether, on the basis of those primary findings of fact, Bingham J. and the Court of Appeal were justified in drawing the inference that the ship was, on a balance of probabilities, lost by perils of the sea.In approaching this question it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them.This second matter appears clearly from certain observations of Scrutton L.J. in La Compania Martiartu v. The Corporation of The Royal Exchange Assurance [1923] K.B. 650. That was a case in which the Court of Appeal, reversing the trial judge, found that the ship in respect of which her owners had claimed for a total loss by perils of the sea, had in fact been scuttled with the connivance of those owners. Having made that finding, Scrutton L.J. went on to say, at p. 657:
"This view renders it unnecessary finally to discuss the burden of proof, but in my present view, if there are circumstances suggesting that another cause than a peril insured against was the dominant or effective cause of the entry of sea water into the ship . . . and an examination of all the evidence leaves the Court doubtful what is the real cause of the loss, the assured has failed to prove his case."
While these observations of Scrutton L.J. were, having regard to his affirmative finding of scuttling, obiter dicta only, I am of opinion that they correctly state the principle of law applicable. Indeed counsel for the shipowners did not contend otherwise.My Lords,the relevant findings of fact, made by Bingham J. after a hearing which occupied 12 days, were as follows:(1) The ship was an old one built in 1952. By 1976 she had become very seriously run down. Since 1976 she had been repaired in an unmethodical way, but the ship as a whole, and her shell plating in particular, were still in a generally wasted condition.(2) The ship was constructed with the bridge amidships, three holds (nos. 1, 2 and 3) forward of the bridge and two further holds (nos. 4 and 5) abaft the bridge.(3) The engine room occupied the space between the three forward and the two after holds. A shaft tunnel ran aft from the engine room, in which there were contained not only the propeller shaft but also the bilge lines serving the two after holds.(4) There was a watertight door between the engine room and the shaft tunnel, which was normally left open, but which, if securely closed, would prevent water running from the engine room into the shaft tunnel or vice versa.(5) The bilge lines serving the two after holds were fitted with non-return valves which, when in position, allowed pumps to draw water from the bilges of those two holds, but prevented water from running the other way into them.(6) The buoyancy of the ship's various compartments was such that, if the engine room spaces alone became flooded, the ship would remain afloat. But, if the after holds became flooded as well, the ship would sink.(7) On 29 July 197S the ship left Rouen laden with a full cargo of sugar in bags and bound for Hodeidah in the Yemen. Her drafts on leaving were such as to show that she was slightly, but in no way excessively, hogged.(8) During the voyage prior to her sinking the ship experienced good weather and light seas, except for a few days after passing Ushant and entering the Bay of Biscay. During those few days she encountered north-north-westerly winds up to force 7, with correspondingly high seas and roiling of the ship. After rounding Cape Finisterre on 1 August 1978 until her sinking she navigated continuously in light winds and calm seas.(9) The events which led to the sinking of the ship began in the engine room at about 10.50 a.m. on 5 August 1978. The ship was then in the Mediterranean opposite the coast of Algeria. At or about that time there was a loud noise with some accompanying vibration and large quantities of sea water gushed into the engine room through an aperture in the shell plating on the port side.(10) The main part of the aperture was vertical, extending from below the plates forming the floor of the engine room and running about 2 metres up the ship's side. There was also a smaller horizontal aperture.(11) Upon the entry of water in this way the pumps were put on to the engine room bilges, but could not cope with the inflow. One of the third engineers, who was in the engine room at that time, was further ordered to close the watertight door between the engine room and the shaft tunnel, which he set about doing.(12) The entry of water was not, in the event, confined to the engine room, but extended also to the two after holds. There were two reasons for this. The first reason was that the third engineer did not succeed in closing completely the watertight door between the engine room and the shaft tunnel. The second reason was that the non-return valves in the bilge lines serving the two after holds had earlier been removed for maintenance, and, because of interruption by more urgent work, had not as yet been replaced.(13) In this situation the general alarm was sounded and the crew were ordered to take their places by the lifeboats. At about 11.40 a.m. the lifeboats were lowered and a S.O.S. signal was sent out. At about noon an order to abandon ship was given.(14) Upon that order being given the crew went into the lifeboats and were later picked up by a British tanker which had come on the scene in response to the S.O.S. signal. Those on board the tanker made various efforts to save the ship, all of which failed. At about 6.13 p.m. the ship sank stern first in deep water.My Lords,with regard to the cause of the ship's loss, the shipowners relied at one time on negligence of the crew (which was also covered by the relevant policies) as an alternative to perils of the sea. Subsequently, however, the shipowners accepted that, even if the loss had been contributed to in some way by negligence of the crew, such negligence could not, in all the circumstances of the case, be regarded as the proximate cause of the loss. The shipowners' case accordingly rested, and rested only, on loss by perils of the sea.It is important to observe that this was not a case of a ship being lost with all her crew in circumstances when the immediate cause of the entry into her of sufficient water to make her sink is unexplained. On the contrary Bingham J. was able to make clear and positive findings with regard, firstly to the way in which water entered the ship, namely, through a large aperture in the shell plating on her port side in way of the engine room; and, secondly, with regard to the manner in which the water, having once entered the engine room, later flooded the two after holds as well, making it inevitable that the ship should sink. In the state of knowledge which existed it is not surprising to find that the shipowners were strenuously pressed, both at the pleading stage and during the trial before Bingham J., to specify the perils of the sea on what they relied as having been the proximate cause of creating the aperture in the ship's shell plating which led to her loss.The shipowners relied in their pleadings, and sought to rely at the trial, on the principle that, if a seaworthy ship sinks in unexplained circumstances in good weather and calm seas, there is a rebuttable presumption that she was lost by perils of the sea. The shipowners were, however, unable to rely on this principle for two reasons. The first reason was that Bingham 3. felt unable to make a finding one way or the other on the question whether the ship was seaworthy. The result is that all possible explanations of the ship's loss have to be approached on the basis that it is as likely that she was unseaworthy as that she was seaworthy. The second reason was that, as I have already indicated, the loss did not occur in unexplained circumstances: on the contrary, the reasons why she sank, apart from the cause of the fatal aperture itself, were as clear as they could possibly have been.The shipowners felt bound to concede that two causes of the aperture, which they canvassed at one time, could be eliminated as impossible. The first of these causes was collision with a submerged rock: this could be eliminated because the ship was navigating in a much-used sea lane, and the relevant charts showed deep water all round without any rocks. The second cause was collision with a floating object: this could be eliminated because such an object would have been washed clear of the ship's side in way of the engine room by the bow wave which the ship, proceeding at her full speed of about 11½ knots, would have been creating.The elimination of these two possibilities left the shipowners with only one remaining possibility, namely, a collision with a submerged object of some kind. In this connection an unarmed torpedo was mentioned, but very sensibly not treated as a serious possibility. That left, as the only remaining possibility for consideration, a collision with a submerged submarine, travelling in the same direction as the ship and at about the same speed, and that was the event that Bingham J., by processes of reasoning which I shall examine shortly, ultimately found to have been the proximate cause of the loss.My Lords,counsel for the shipowners contended before your Lordships that his case had never been tied irrevocably to a loss by any specified peril of the sea: in particular it had never been tied to loss by collision with a submarine. It seems to me, however, that once it was shown that the water which sank the ship had entered through an aperture in her shell plating, the burden of proof was on the shipowners to show what peril of the sea, if any, could be shown, on a balance of probabilities, to have created that aperture. The shipowners could not, in my view, rely on a ritual incantation of the generic expression "perils of the sea", but were bound, if they were to discharge successfully the burden of proof to which I have referred, to condescend to particularity in the matter.I come back now to the processes of reasoning by which Bingham J, found that collision with a submarine was, on a balance of probabilities, the proximate cause of the ship's loss. In order to make these processes clear it is necessary to have in mind a matter which I mentioned earlier that, although underwriters sued by shipowners for the total loss of a ship by perils of the sea are not under any obligation to plead in their defence, or to seek to prove at the trial, some alternative cause of loss against which the ship was not insured, they are perfectly entitled to do so if they wish. In the present case underwriters did exercise their right to plead and try to prove an alternative cause of loss, the cause so relied on being prolonged wear and tear of the ship's hull over many years, resulting in her shell plating opening up under the ordinary action of wind and wave and without collision with any external object.My Lords,the result of underwriters putting forward this alternative cause of the ship's loss was to lead Bingham J. into approaching the decision which he had to make as being a simple choice between the cause of loss relied on by the shipowners and the alternative cause of loss put forward by underwriters. Although he had in an earlier part of his judgment referred expressly to the observations with regard to burden of proof made by Scrutton L.J. in La Compania Martiartu v. The Corporation of the Royal Exchange Assurance [1923] K.B. 650, 657, which f quoted earlier, he does not seem, when he came later in his judgment to the point of actual decision, to have given any consideration at all to the third possible solution to the case contemplated in those observations. That third possible solution would have been to say that he was left in doubt as to the proximate cause of the ship's loss, and that, in those circumstances, the shipowners' actions should be dismissed on the simple ground that they had not discharged the burden of proof which lay upon them.Bingham J. had before him a mass of expert evidence relating to the possibilities that the proximate cause of the ship's loss was a collision with a submerged submarine on the one hand or wear and tear of the shell plating on the other. Dealing with the submarine theory first, he stated seven cogent considerations which militated strongly against that theory. I do not propose to set out, or even try to summarise, those seven considerations. I think it helpful, however, to state the first consideration, which I regard as having a certain convincing simplicity about it, namely, that no submarine was seen before or after the casualty.Having set out the seven cogent considerations which militated strongly against the submarine theory to which I have just referred, Bingham J. [1983] 2 Lloyd's Rep. 235, 246 expressed his conclusion about the theory in this way:
"I think it would be going too far to describe a collision between the vessel and a submarine, rupturing the shell plating of the vessel, as impossible. But it seems to me to be so improbable that, if I am to accept the plaintiffs' invitation to treat it as the likely cause of the casualty, I (like the plaintiffs' experts) must be satisfied that any other explanation of the casualty can be effectively ruled out."
Bingham 3. then went on to examine the alternative wear and tear theory put forward by underwriters. He went through the essential features of the complex expert evidence which had been adduced before him, and, having done so, expressed his conclusion [1983] 2 Lloyd's Rep. 235, 248, as follows:
"They [the underwriters] are not, of course obliged to prove that explanation even on a balance of probabilities, but unless I am satisfied that some degree of probability attaches to it, I am left with no explanation but the owners'."
Then, after a further reference to the expert evidence, he continued:
"In the result, I find myself drawn to conclude that the defendants' wear and tear explanation must on the evidence be effectively ruled out. That leaves me with the choice between the owners' submarine hypothesis and the possibility that the casualty occurred as a result of wear and tear but by a mechanism which remains in doubt."
The passages which I have quoted from Bingham J.'s judgment amply support the observations about his approach to the case which I made earlier. These observations were to the effect that he regarded himself as compelled to make a choice between the shipowners' submarine theory on the one hand and underwriters' wear and tear theory on the other, and he failed to keep in mind that a third alternative, that the shipowners' had failed to discharge the burden of proof which lay on them, was open to him.As regards the shipowners' submarine theory, Bingham J. stated in terms that he regarded it as extremely improbable, a view with which I think it unlikely that any of your Lordships will quarrel. As regards underwriters' wear and tear theory, it was contended by counsel for the shipowners that Bingham 3. had ruled it out as impossible. The language used by him in different places is, however, ambivalent, and I think that it would be more accurate to say that he regarded the wear and tear theory not as impossible, but as one in respect of which any mechanism by which it could have operated was in doubt.My Lords,the late Sir Arthur Conan Doyle in his book " The Sign of Four" , describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson:
"how often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?"
It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so.There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.In my opinion Bingham J. adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.If ever a case asked to be treated as coming within the dictum with regard to burden of proof of Scrutton L.J. in La Compania Martiartu v. The Corporation of the Royal Exchange Assurance [1923] K.B. 650, 657, this was it. The shipowners failed to establish that the ship was seaworthy, and they only put forward an extremely improbable cause of her loss. In these circumstances the judge should have found that the true cause of the loss was in doubt, and that the shipowners had failed to discharge the burden of proof which was on them.My Lords,I turn now to the judgments in the Court of Appeal [1984] 2 Lloyd's Rep. 555. Having regard to the single but fundamental ground on which I consider that the judgment of Bingham J. is vitiated, it seems to me, with all respect to the three judges in the Court of Appeal, that the only parts of their judgments which it is necessary for me to examine are those parts which deal with that aspect of the case.Sir John Donaldson M.R., after reciting the choice which Bingham J. had said that he felt himself compelled to make, at p. 55 8, said:
"In such a situation there is no doubt that the learned judge could have held that he was not satisfied with either explanation, but in the light of his specific reference to this possibility in the second numbered paragraph of his exposition of the law (p. 244 left hand column), I cannot believe that he overlooked it."
O'Connor L.J. did not deal specifically with the point, but supported the judgment of Bingham J. broadly on the ground that there was ample evidence to justify him in rejecting the underwriters' wear and tear theory, and accordingly ample justification for his accepting the shipowners' submarine theory. As to this I would only observe that the conclusion with regard to acceptance of the submarine theory does not follow at all necessarily from the premise with regard to rejection of the wear and tear theory.May L.J. followed a line similar to that of Sir John Donaldson M.R. He said, at p. 561:
"I would not have been surprised if, in all the circumstances of this case, the learned judge had concluded that he just did not know what had caused the sinking and that therefore the owners failed. The argument that one can infer from his judgment that he wrongly felt that he had to come down on one side or the other, and that the 'don't know' finding was not open to him, is in my view an attractive one. However, as Sir John Donaldson M.R., has also mentioned, the judge specifically referred to the dictum of Scrutton L.J. in La Compania Martiartu v. The Corporation of the Royal Exchange Assurance [l923] K.B. 650 , 657….
Having done so, I too cannot think that so experienced a Judge in this field overlooked this possible result in law."My Lords,it is no doubt more likely than not that a judge who directs himself correctly on a certain aspect of the law in the earlier part of his judgment will apply the relevant principle properly later in his judgment when the occasion for its application arises. Failure by a judge to act in this way is, however, not unknown, and in a long and complicated case like the present one it can easily happen.The only way to see whether a judge applied at the point of decision a principle of law which he correctly enunciated earlier is to examine his judgment and see what he has said in it. Having regard to the way in which Bingham J. expressed the view that he was compelled to choose between the shipowners' submarine theory on the one hand and underwriters' wear and tear theory on the other, and having regard further to the fact that, when he neared the point of decision in his judgment, he did not discuss or consider the third possibility which was open to him, of simply finding the shipowners' case not proved, I am driven, reluctantly but inescapably, to the conclusion that on this occasion even Homer nodded.The Court of Appeal, wrongly in my view, credited Bingham 3. with giving consideration to a solution of the case which the judge himself, when coming to the point of decision, did not discuss or even mention at all.In my opinion the only inference which could justifiably be drawn from the primary facts found by Bingham J. was that the true reason of the ship's loss was in doubt, and it follows that I consider that neither Bingham J. nor the Court of Appeal were justified in drawing the inference that there had been a loss by perils of the sea, whether in the form of collision with a submerged submarine or any other form.For these reasons I would allow the appeal, set aside the orders made in the two consolidated actions by Bingham J. and the Court of Appeal, and award the appellant underwriters their costs in your Lordships' House and in the two courts below.

LORD TEMPLEMAN

My Lords,I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brandon of Oakbrook. For the reasons given by him I would allow this appeal.

Rhesa Shipping Company S.A. (Respondents)

v.

Edmunds (Appellant) and

Rhesa Shipping Company S.A. (Respondents)

v.

Fenton Insurance Company Limited (Appellants)

JUDGMENT

Die Jovis 16° Maii 1985

Upon Report from the Appellate Committee to whom was referred the Cause Rhesa Shipping Company S.A. against Edmunds and Rhesa Shipping Company S.A. against Fenton Insurance Company Limited, That the Committee had heard Counsel on Monday the 22nd and Tuesday the 23rd days of April last upon the Petition and Appeal of Herbert David Edmunds of Lloyd's, Lime Street, London EC3, and of Fenton Insurance Company Limited of 12, Lime Street, London, EC3, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 20th day of July 1984, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Rhesa Shipping Company S.A. lodged in answer to the said Appeal, and due consideration had this day of what was offered on either side in this Cause:It is Ordered and Adjudged , by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 20th day of July 1984 complained of in the said Appeal, together with the Order of Mr. Justice Bingham of the 30th day of March 1983, be, and the same are hereby, Set Aside: And it is further Ordered , That the Respondents do pay or cause to be paid to the said Appellants the Costs incurred by them in the Courts below and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered , That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.Cler: Parliamentor:

Cited in 2 later judgments