George v Coastal Marine 2004 Ltd (t/a Mashfords)

This is a claim arising out of damage sustained by the motor vessel “Bon Ami” (“the Vessel”) during the weekend of 6 to 8 May 2005, when she “grounded hollow” in a tidal berth (“layerage 3”) at a shipyard at Cremmyl in Cornwall belonging to the defendant, Coastal Marine 2004 Limited, which traded under the name “Mashfords” (“the Yard”).

The Vessel, which was built in 1958, is a Scottish drifter, motor driven and of wooden construction. She is a former merchant fishing vessel with a registered length of 21.3m, an overall length of 21.74 and length between perpendiculars of 20m. She was purchased by the claimant, Christopher Martin Lee George (“the Claimant”) in December 1999. At the time of the incident giving rise to this claim, he was in the process of converting the Vessel so as to enable him to charter her out for fishing and recreational trips from Plymouth.

The Vessel has a wooden hull, protected by a metal strip, known as the keel band. The keel itself is structural; the keel band is not. It serves merely to protect the keel when the Vessel takes ground on berthing. A wooden vessel “grounds hollow” if it rests on the sea-bed when the tide falls, but does so in such a way that the flat keel does not rest evenly along the layerage bed. In such a case, only part of the length of the flat keel band is supported, and there will be a gap, or hollow, between the unsupported length of the keel band and the layerage bed itself. It was common ground between the experts and the parties that, if a vessel grounds hollow, it may twist and distort, because the weight pressing down on the keel will not be evenly distributed, and damage may consequently occur.

It was common ground that, in this case, after the Vessel had moored in layerage 3 at approximately 5.30 pm on Friday, 6 May 2005, the Vessel’s flat keel band did indeed subsequently ground hollow. That was because, when the tide went out, during the night of the 6-7 May, and the Vessel took the ground, at approximately an hour before low tide at 11.47 pm, its flat keel band would have spanned a 9.2m change in gradient on the sea bed of the layerage and thus would have been unsupported for a significant part of its length. It was also agreed that this was an unsatisfactory situation which could lead to the damage to the Vessel’s hull, once the ground had been taken at low water.

It was also common ground:

The Claimant contends that the Vessel grounded hollow because, in breach of contract and/or its duty of care, the Yard failed to provide him with a safe berth. He contends that, had a safe berth been provided, the Vessel would not have grounded hollow. The Claimant says that layerage 3 was unsafe because of the increase in the gradient of the beach at the landward end and because of some alleged unevenness and debris on the bed of the layerage. At trial he also contended that layerage 3 was unsafe because of the short length of the Coal Quay wall.

In his Particulars of Claim he sought damages totalling £133,146.50, but that was reduced at trial to £87,949, made up as follows:

The Yard denied liability on the various bases set out in its defence. In particular, it contended that:

As to the pleaded losses, the Yard’s position was as follows:

The following facts were common ground. By an oral contract made on or around 26 April 2005, the Yard (by Richard Porter, the General Manager at the Yard) agreed that the Claimant could moor the Vessel alongside a quay or beach wall at the Yard, in a tidal berth, or layerage, at which the Vessel could take the ground at low water and dry out so as to permit (i) pressure washing of her hull and (ii) the application of anti-fouling paint. The Claimant wanted to moor at layerage 1, alongside the Yard’s east quay, having moored there previously. Mr. Richard Porter agreed to this, in the knowledge of the purpose for which the Claimant wished to use the layerage. The Claimant visited the Yard on 5 May to check that arrangements were in hand and to look at layerage 1, it being his practice to inspect berths at which the Vessel was to moor. On the morning of 6 May 2005, Mr. Richard Porter telephoned the Claimant to inform him that layerage 1 was unexpectedly unavailable because two fishing boats had arrived overnight and moored on the berth. Mr. Richard Porter had tried to contact the skippers of the boats, but had been unable to clear the berth. Mr. Richard Porter duly offered the Claimant the options of rescheduling the appointment or taking a berth at layerage 3, alongside another quay. The Claimant chose the latter. He had not previously moored there or inspected the layerage bed at low tide. Where the Claimant in fact moored the Vessel, alongside the quay at layerage 3, she did not lie safely aground, but grounded hollow. After the incident, and the damage to the Vessel, the Yard did not charge the Claimant for the berthing fees.

There was some dispute about precisely what was said when layerage 3 was offered to the Claimant in place of layerage 1. I find that on the balance of probabilities the gist of what was said (and not said) was as follows:

Mr. Tom Whitehead, counsel appearing on behalf of the Claimant, submitted that, in such circumstances, the contract between the parties contained the following implied terms that layerage 3 would be fit for its intended purpose (referred to as “the warranty of safety”):

He further contended that in these circumstances the Yard was under a duty at common law and/or under the Occupier’s Liability Act 1957 (“the 1957 Act”):

Mr. Whitehead submitted that the Yard had put forward no evidence to support its underlying premise that the bed of layerage 3 was tidal foreshore and seabed and was not owned or controlled by the Yard. Accordingly, he submitted that the berth would amount to premises under the control of the Yard for the purposes of the Occupier’s Liability Act: Marsden on Collisions at Sea at 12-52 p.493; Clerk & Lindsell on Torts at paragraphs 12-05, 12-10.

The Yard’s position was that the bed at layerage 3 was tidal foreshore and seabed, and was not owned or controlled by the Yard. Accordingly, there was no express warranty of safety or fitness; nor, in the light of the Yard’s lack of control over the layerage bed, could such a warranty be implied in the mooring licence. (Footnote: ³) Thus, Mr. James Watthey, counsel on behalf of the Yard, submitted that such an implied term:

The Yard further contended that, in the circumstances:

However, the Yard accepted that it did impliedly represent, by permitting the Vessel to moor in layerage 3, that reasonable steps had been taken to ascertain that it was safe for the Vessel’s reception and that the Yard would give a warning to the extent that it was not safe to do so. But, submitted the Yard, the Defendant’s duties were limited to so doing, as set out in The Moorcock supra.

It was clear from all the evidence, factual, photographic and expert, that the bed of layerage 3 was tidal foreshore and seabed. In such circumstances the presumption must be that the bed of the layerage was owned by the Crown; see Halsbury’s Laws: Crown Property (Footnote: ⁵). There was no evidence adduced by the Claimant to suggest that the Yard exercised a sufficient degree of control over the sea bed of the layerage such as to impose upon it an absolute obligation upon it to be responsible for repairing the bed, so as to make it fit for the purpose of berthing there. In particular, I reject the Claimant’s suggestion that the evidence of David Reed, a rigger employed by the Yard, as to his clearance of the quay, or as to his moving of stones on the sea bed, amounted to sufficient evidence of the Yard’s control over the seabed at the various layerages, to constitute it an occupier of the sea bed for the purposes of the 1957 Act.

This, in my judgment, was a classic Moorcock situation. In circumstances where the Yard let out the quays, along with the adjacent layerages for hire, the implication in the mooring contract was that the Yard had taken reasonable care to see that the layerage was safe. If, and to the extent that, such layerage was not safe, or that the Yard had not taken steps to ensure that it was safe, then it also had an obligation to warn its customers that such was the case; see, in particular, per Bowen LJ in The Moorcock at pages 70-71. The Yard gave no contractual warranty of safety in absolute terms as to the condition of the layerage. I reject the Claimant’s submissions to the extent that they seek to suggest that the Yard did so.

However, the Yard was an occupier, for the purposes of the 1957 Act, of the quays or sea walls against which vessels would moor when berthing at the layerages. Even if one assumes in the Yard’s favour that it was not an occupier of the sea bed, it still had the common law duty of care imposed by section 2(2) to see that the Claimant would be reasonably safe in using the sea wall or quay, and thus, in effect, the mooring, for the purposes of the mooring licence. As Marsden on Collisions at Sea (Footnote: ⁶) points out, the duty is to see that a berth is in proper condition, or, failing that, to give a warning that it is not. But the duty is merely a duty to take care; the wharfinger is not liable without fault for defects in the dock. Likewise, even if I were wrong in my conclusion that the Yard was not an occupier of the actual sea bed of the layerage, and the Yard is to be regarded as an occupier thereof, the common law duty of care imposed by section 2(2) “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited” was not the absolute one contended for by the Claimant, but rather the more limited one articulated in The Moorcock.

Thus, as submitted by Mr. James Watthey, the reality is that, on the facts of the present case, it makes little difference whether one characterises the duty as arising under implied terms of the contract, at common law or under the 1957 Act. If the Yard’s representatives had, as they claimed, warned the Claimant to move the Vessel back to avoid grounding hollow, and if the Vessel would have been reasonably safely moored, if he had done so, there can be no liability on the Yard, whether under implied terms of the contract, at common law or under the 1957 Act. Section 2(4) of the 1957 Act provides a defence where “damage is caused to a visitor by a danger of which he had been warned,” but “the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe”. Section 2(5) also preserves the defence that a claimant willingly accepted the risk.

Accordingly, the crucial issues in the case are therefore: (i) what mooring instructions were given to the Claimant by the Yard, and were they an adequate warning of the risks of the change in gradient in the layerage; and (ii) whether the Vessel would have lain safely aground if she had been moved 12 feet astern from her original mooring position to lie seaward of the change in gradient, as the Yard contends it instructed the Claimant to do. It is to these issues which I now turn. I deal first with the second issue, because, if the Vessel would not have lain safely aground even if she had been shifted 12 feet astern from her original mooring position, the Yard accepts that it would, in any event, have been liable under its limited duty of care for having failed to give an adequate warning.

On the Claimant’s own evidence, the Vessel was originally moored by him with her stern overhanging the seaward end of the Coal Quay (referred to as “the Coal Quay knuckle”) by between 20 and 25 feet. It was common ground between the parties and their respective experts that, in that original berthed position:

The Claimant’s case is that layerage 3 was unsafe even if the Vessel had been shifted 12 feet astern. He contended that on no basis did layerage 3 satisfy the following berthing criteria:

Thus the Claimant’s case was that:

Expert evidence was given as to the condition of layerage 3 and as to whether it provided a safe berth in the circumstances. The Claimant’s expert was Captain Nicholas Paines, a Master Mariner; the Yard’s expert was Mr. Mark Keenor, an Extra Master Mariner. Both gave evidence before me. They had been instructed to investigate the state of layerage 3 in July 2007 (i.e. some two years and two months after the incident). Each produced initial reports in which their conclusions were at variance with each other, but, after a meeting between them on 24 September 2008, many matters were the subject of agreement as set out in a note of that date signed by both experts (“the Joint Memorandum”). Following the date of the Joint Memorandum, and during the course of the trial, a further substantial amount of common ground between the experts emerged.

Thus, prior to giving their evidence, the experts agreed:

In cross-examination, Captain Paines, the Claimant’s expert, conceded that the flat keel bar would have lain to seaward of the change in gradient if the vessel had been moved back 12 feet from an original overhang of 22 feet 6 inches. He also accepted that the highest he could put the Claimant’s case, if the Vessel had been moored with a 37 feet overhang, is that it was possible, but unprovable, that unevenness or debris would have caused similar damage. In particular, he effectively conceded:

Mr. Keenor, in cross-examination, maintained the position that, although there was a potential for damage at layerage 3, even if one excluded the change of gradient, such a possibility was unlikely. He also confirmed the views expressed in his reports that, if the stern overhang had been 32 feet or 37 feet, damage from the risk of grounding hollow would have been unlikely. In response to questions from the court, he said that he would have advised a client to go in to layerage 3 “if it was a matter of expediency” but “obviously” he would have preferred to use layerage 1. He also said that if the stern overhang at layerage 3 had been 37 feet, he would not have left the Vessel overnight, but would have stayed there to keep an eye on the mooring. He was not asked in cross-examination or re-examination whether the concern in that case would be that some part of the hull would be unsupported by the quay wall when the Vessel took the ground, or that there would have been a risk of the Vessel pivoting around the Coal Quay knuckle on a rising tide or a combination of both factors.

Both experts gave their evidence in a professional and competent manner. However, in relation to issues where they disagreed, I preferred the evidence of Mr. Keenor. At times, Captain Paines gave the impression of being partisan and of overstating his views. He made certain assertions as to the state of the layerage, based upon his visit, two years after the event, which were not supported by the factual evidence and which he had to withdraw.

I also heard evidence from the Yard’s employees (Footnote: ¹⁰) as to the state of layerage 3 at the date of the incident and its use as a layerage. In addition, the evidence included photographs of the Vessel and the layerage taken at the time of the incident, as well as photographs of the layerage taken subsequently in 2007, at the time of the experts’ inspection.

Mr. Reed, who had been employed as the Yard’s Rigger for approximately 24 years (and had previously worked as a Master Rigger for the Swiss Government for 20 years) was responsible (amongst his other duties) for assisting with the mooring of any vessels that came into the Yard. He was extremely familiar with the lie and condition of the layerage, as he walked over the layerages at low tide frequently; he was at the layerages “literally every day”, at all states of the tide, guiding vessels in and out of the berths. Indeed he had observed the change in gradient at layerage 3 at low tide on the very day of the incident. He said that, even at high tide, he knew, from his experience, and his daily observation of the layerage, where the change in gradient in the sand stopped, by reference to the stones in the “old fashioned” dry quay wall, running along the side of the layerage. He told the court that he “knew nearly every stone” in the wall and that he could tell, from his position at the top of the Coal Quay wall, exactly where the change in gradient began and stopped. He gave this evidence in a modest and entirely credible fashion.

Having heard and seen all the evidence, both expert and factual (the latter being of particular significance, since it related to the condition of the layerage at the time, and there was evidence to suggest that the condition had changed since the incident), I conclude that, on the balance of probabilities, if the Vessel had been moved 12 feet astern from her original mooring position, to lie seaward of the change in gradient (whether the original position involved a stern overhang over the Coal Quay knuckle of 20 feet, or 25 feet), the Vessel would have lain reasonably safely aground, given the recognised limitations of layerage 3. I also conclude that in such a position the berthing criteria would have been reasonably satisfied, notwithstanding the fact that layerage 3 was clearly less suitable than layerage 1.

Each side respectively argued that the burden of proof in relation to this particular issue lay on the opposing party; thus the Claimant contended that it was for the Yard to establish that the Vessel would have lain reasonably safely aground if it had been shifted back 12 feet, whereas the Yard contended that the burden of proof was on the Claimant to establish that the Vessel would not have lain safely in that position. I was not referred to any authorities on the point, whether in the context of section 2(4) of the 1957 Act, or otherwise. I have assumed, without conducting my own research, and without deciding the point, that the burden was on the Yard to establish that the alternative position, to which it says it directed the Vessel, did afford a reasonably safe berth.

In coming to the conclusion that if the Vessel had been moved 12 feet sternwards, she would have been reasonably safely berthed, I find, contrary to the Claimant’s case, as follows:

The Claimant was 45 at the time of the incident. Since leaving school he had been a self-employed marine and motor engineer. Although he has no professional marine qualifications, and was not the holder of a commercially endorsed skipper’s licence, he has considerable experience as a seaman, having worked on various marine projects, and as a delivery crewman and skipper on motor and sailing yachts. He told the court that he was a competent seaman and navigator, having worked on boats and sailed or driven then as a hobby since 1987. He told the court that he had taken a 75-foot vessel that drew 12 feet through first the Bristol Channel, and then the Avon Gorge into Bristol Docks. He also told me that he had taken the Vessel to the Gulf of Morbihan in Brittany with paying passengers. He also gave evidence to the effect that he would charter the Vessel on a daily basis from time to time. Although he did not have the requisite Small Commercial Vessel Coding for charter licence (“SCV 2”), he had, prior to the incident, submitted a deposit and form SCV1 so that the Vessel could in due course be surveyed by the Marine Coastguard Agency to qualify as a charter vessel and obtain SCV approval. However, at the time of the incident, the Vessel required further restoration work and the purchase of further safety equipment to qualify for such approval. He told the court that, effectively, in order to circumvent chartering regulations, his chartering customers would pay “donations” or “contribute to expenses” for the day’s trip. He also told the court that his current work involved running a commercial garage at Norton Ferrers, “… where currently about 25% of the work is invoice-related”. His competence as a seaman was endorsed by a friend of his, Mr. David Walker, a retired Master Mariner, who had sailed with the Claimant on a number of occasions, including on the trip to the Gulf of Morbihan, and who also gave evidence at trial. I have no doubt that the Claimant is indeed a competent seaman.

In paragraphs 18 to 22 of his first witness statement, the Claimant described the mooring operation as follows:

“18.

We arrived at the mouth of Mashfords boatyard 15 minutes before high water at 1720 hours. This was the point between the end of the Main Quay and the North Quay. The tide was running across the mouth of this entrance in a westerly direction; however, as it was just before high tide, there was a slight tidal stream.

19.

I manoeuvred the ‘Bon Ami’ in from the east bringing her round in a very tight space to moor up against the south side of The Coal Quay on what is marked as Layerage 3 on the plan. As I was manoeuvring the boat I saw a large white hulled classic barque that I had seen at Morwhellham Quay moored on the northern side of the main quay marked as Layerage 2 on the attached plan. This made manoeuvring into Layerage 3 very tight. As I approached Layerage 3 there were three or four Mashfords staff standing on The Coal Quay ready to assist us with the berthing of the ‘Bon Ami’. I heard one of the Mashfords staff saying: ‘That was pure luck, or he can drive that boat’. I do not recall which member said this. However, although it was a difficult operation to berth the ‘Bon Ami’ with very little room for error, as a result of the careful approach and good planning it was successful.

20.

The bow spring (Footnote: ¹²) was taken first and then I used the engine to bring the ‘Bon Ami’ slowly alongside the quay and then the stern line was made fast, therefore mooring the boat. I left the engine running out of gear, and was approached by an older gentleman who was in his late 50’s and approximately 5ft 8ins tall with grey hair and blue overalls. I assume this gentleman to be Mr. Reed. Mr. Reed explained that the seabed shelves ant that it would be better to move the ‘Bon Ami’ back so that she was resting on level ground. I took his advice and moved the vessel astern. There appeared to be some disagreement between the Mashfords employees standing on the quay as to the exact location of the step on the beach and after some discussion they decided where it was and gave me guidance on how far to move the ‘Bon Ami’ astern. Mr. Reed directed me from the quay using very clear signals to indicate when I should stop. I was in the wheelhouse and had clear sight of him and could hear him very clearly as the ‘Bon Ami’ was level with or slightly higher than The Coal Quay.

21.

I again gave orders to make fast the bow and stern lines so that the boat was moored. I came out and checked the mooring and decided that there was far too much of the stern overhanging the northern end of The Coal Quay. I discussed this with Mashfords staff and made it clear that I was not happy that so much of the stern was unsupported by the quay itself; however, the staff assured me that the ‘Bon Ami’ was in a safe position.

22.

The final mooring arrangement on the ‘Bon Ami’ was comprised of a bow line and a bow spring and a stern line and stern spring. Mr. Moore also attached a mid line because so much of the stern was overhanging The Coal Quay. Once the boat had been made fast the Mashfords staff all disappeared, which I assumed was because it was late afternoon on a Friday. None of the Mashfords staff returned that day. The ‘Bon Ami’ was moored and the engines switched off by 1830 hrs. The approximate position of the ‘Bon Ami’ on Layerage 3 is shown in the plan.”

In his oral evidence, the Claimant said that he did not see Mr. Reed making hand signals to him on the approach, although he accepted that it was possible that he had done so; that he did not feel the bow of the Vessel touch the beach underwater, although he accepted that she had done so, as described by his crewman, Mr. Jason Moore; that manoeuvring the Vessel into layerage 3 was a tight fit, involving a great deal of concentration, as the Vessel was a large, heavy boat, and difficult to move in a confined space, and the tide was running. He could not remember where precisely he had moored the Vessel originally, but the best estimate he could give was that she was overhanging the end of The Coal Quay by 20 to 25 feet. He also said that the bow of the Vessel was higher than the wheelhouse window, so that the view forward from the wheelhouse was obscured for about 30 degrees port and starboard with the result that the Claimant could not see past his crewman, Mr. Moore.

He was also somewhat hazy about what he claimed happened when he brought the Vessel in to moor. According to his witness statement (as quoted above) he had actually moored the Vessel, making the bow spring and stern line fast (Footnote: ¹³), before following Mr. Reed’s instructions to move the Vessel astern. In his oral evidence, however, and contrary to what he had said in his witness statement, he said that the Vessel had not been moored before he moved it astern, nor was it tied, whether loosely or otherwise at the stern by an aft line; he had been positioning the Vessel with the assistance of the bow spring.

He also said that he moved back six feet as directed by Mr. Reed, although he frankly admitted that his recollection of the six feet measurement was one which he partly obtained from reading the witness statement of his crewman, Mr. Jason Moore. He further accepted that he was concerned about the stern overhang because he was worried that the Coal Quay wall would not give the Vessel enough support when she dried out, but he insisted that he had not refused to move her any further astern; rather he stopped the Vessel in its position “… because that was where they [the Mashfords staff] finally agreed to moor her”.

He vehemently denied that he has ever sworn at Mr. Reed, or that Mr. Reed had told him to move further astern.

Mr. Moore, the Claimant’s crewman, gave evidence about the mooring operation. His evidence, however, though honestly given, was of little utility to the issues which I had to resolve. As he admitted, his involvement in the voyage was “minimal”; there was no reason why he would have committed to memory every event that happened on 6 May 2005; he was concerned about the Vessel hitting the railway sleeper fender and, as a result, he was not concentrating on any signals or instructions from the quayside; he could not remember what the Claimant claims to have told him about moving the Vessel backwards; and he only heard “bits and pieces” of the conversations between the Claimant and Messrs Reed and Porter.

Mr. Walker also gave evidence on behalf of the Claimant. On or about 21 May 2005, he made a note, entitled “Statement Of Fact” at the Claimant’s dictation of what the Claimant said had occurred on the weekend of 6 – 8 May. In his witness statement he said:

“[The Claimant] was obviously concerned about his position and as indicated above having had considerable experience in the commercial world, advised him to negotiate hard with his insurers for payment in full up to the limit of his indemnity under the policy and importantly, to record accurately the event that occurred at Mashfords between 6-8 May 2005. Accordingly, on or about 21 May 2007 I made a note headed ‘Statement of Fact’ of what happened at Mashford’s Yard as result of Christopher’s first hand account. This document is a contemporaneous record ….”

As the witness statement suggests, this note was for the Claimant’s assistance in negotiating his claim with his insurers. Although both Mr. Walker and the Claimant said that the note was written on 21 May 2005, their recollection may be faulty in this respect, as there is a reference to “Noted damage as per photos and subsequent surveyor report”, and no surveyor’s report was in fact obtained until September 2006. However, Mr. Walker said that the note was a reference to a report which, in May 2005, he advised the Claimant to obtain. Be that as it may, the note of the mooring incident adds little or nothing to the evidence; it merely says:

“(5)

V/l taken to Yard on evening tide at 1800hrs approx where 3 staff Martin foreman and two others on Quay guided in and took lines. Post of v/l discussed as aft end beyond the Quay. So v/l moved astern until OK was given by Yard and springs secured and v/l all fast.”

It is thus consistent with the Claimant’s witness statement, rather than with the description in his oral evidence.

Although Mr. Walker could give no first-hand evidence of what had occurred, he said in his witness statement that, from his experience of the occasions when he had sailed with the Claimant, he had:

“… never, either at sea or ashore, seen him lose control and, in particular, he very rarely resorts to bad language. In fact I can state that over these 15 years I cannot recall one occasion when the Claimant has used a four-letter expletive.”

In his oral evidence, Mr. Walker said that he had:

“… never witnessed [the Claimant] lose his control, and I have never witnessed him or seen him blaspheme in an unseemly manner or blaspheme at all.”

and that he did not think that he had heard the Claimant “swear”.

I formed the distinct impression that, in an understandable desire to assist his friend, Mr. Walker was perhaps gilding the lily of the Claimant’s use of language somewhat. I also formed the impression that the Claimant had, with justification, a considerable respect for Mr. Walker, not only because he is a considerably older man than the Claimant, but also because of his nautical experience and expertise. Indeed, when the Claimant took the Vessel to the Gulf of Morbihan, it was Mr. Walker who was responsible for the navigation of the Vessel, the Claimant having no formal qualifications in this respect. In such circumstances, it would not perhaps be surprising if the Claimant had refrained from using bad language in front of Mr. Walker.

The nub of the dispute between the account given by the Yard’s employees and by the Claimant was whether the Claimant was told to move the Vessel a further 12 feet astern from where he had provisionally positioned her on the afternoon of 6 May, and whether the Claimant refused to do so (as the Yard contends), or whether (as the Claimant says) he was told to move the Vessel only six feet astern of its original provisional mooring position (which he duly did) and was assured by the Yard’s employees that it was safe to moor the Vessel where it was, with an overhang of 20 to 25 feet over the Coal Quay. The Yard’s employees say that the Claimant swore at Mr. Reed, saying “Fuck off, I know what I am doing”, and refused to shift the Vessel the 12 feet further astern. The Claimant denies he swore at the Yard’s employees, and contends that he complied with their instructions to move the Vessel astern by only six feet, whereupon they told him that it was safe to moor there.

Mr. Whitehead, in his closing submissions on behalf of the Claimant, subjected the evidence to a minute textual analysis and put forward numerous detailed reasons why he submitted that the Claimant’s account of the mooring should be preferred to that of the Yard’s employees. Those reasons included the allegation that they had, shortly after the event, got together to “fashion” the false defence that Mr. Reed had given a warning to the Claimant to shift the Vessel 12 feet astern, although in a subsequent note, dated 9 December 2008, Mr. Whitehead stated:

“… that the Claimant did not intend to allege any dishonesty on the part of the Defendant’s witnesses, merely that less probative weight should attached to their evidence in light of the matters to which reference is made at paragraphs 188 to 193 of the Claimant’s written closing.”

Mr. Whitehead also placed great emphasis on the fact that the pleaded Defence (certified by a Statement of Truth from Mr. Richard Porter) was inaccurate and inconsistent with the evidence given by the Yard’s witnesses in two important respects: first, that it wrongly asserted that the Vessel arrived at 1530 hours, and not 5.30 pm; and second that, having advised the Claimant to shift the Vessel astern at about 1530, Mr. Reed then returned an hour later and repeated the warning to the Claimant. Mr. Whitehead emphasised the fact that the Claimant’s account of the timings was accepted by the Yard in their oral evidence, thus demonstrating that the Claimant’s evidence on crucial issues has been consistently right all along.

In my judgment, given the passage of time, neither side could have a completely accurate recall of what had occurred during the mooring process. In a case of this sort, where there is an acute difference between the two accounts put forward, the court’s task of ascertaining where the truth lies cannot principally depend on a meticulous textual analysis of variants between accounts given in witness statements, pleading or in oral examination. The court has to adopt the robust approach of assessing the credibility of witnesses and the totality of the evidence which has been given in the light of all the facts.

In my judgment, the evidence given by the Yard’s witnesses was by far the more compelling. It is to be preferred as to the critical issue whether a warning was indeed given to the Claimant, and disregarded, to move the Vessel astern by 12 feet. On the balance of probabilities, taking account of all the evidence, both factual and expert, I conclude that the following occurred:

My principal reasons for preferring the evidence of the Yard’s employees to that of the Claimant may be shortly summarised as follows:

Accordingly, I find against the Claimant on liability.

In case this matter goes further, and I am found to be wrong as to liability, I should briefly set out my views on quantum.

In my judgment, subject to one point, as to which, see below, the full amount of the Cann invoice in respect of repairs completed would be recoverable if I had found against the Yard on liability. On the balance of probabilities, the repairs which were actually carried out were necessary, and did not amount to betterment.

The Claimant relies on an estimate provided by a Mr. Phil Carter in January 2008. I accept that some of the work covered by the estimate may have been necessitated by damage caused to the Vessel as a result of the incident, in particular that relating to “raking out caulking on deck, recaulk and seam”, but many of the items of work for which an estimate have been provided require further investigation as to whether they are necessary or not. The difficulty about this estimate is that the Claimant left it until 2008 to obtain it, and has not done any of the work to date. If is difficult to know whether many of the items referred to need in fact to be carried out. Moreover, work necessary to repair damage caused by fresh water may well not be attributable to the incident at all, but rather to the Claimant’s failure to ensure that the deck was properly caulked, or at least to cover any areas of the Vessel whose watertight integrity had been compromised, so as to prevent rain water from entering. The damage caused by rot which was the inevitable consequence of the incident has been aggravated by leaving it so long before attending to it. Although it was for the Yard to prove betterment, it was up to the Claimant to provide that the damage was indeed caused by the incident, and that the repair costs were justified. I would have held that the Claimant had not fully proved his case in relation to the outstanding repairs, and would have awarded him the limited amount of £8,000 to reflect the fact that some outstanding repairs were still necessary as a result of the incident.

The Claimant has not proved on the balance of probabilities that it was necessary for him to adopt the expensive alternative of slipping the Vessel at Serco’s Shipping at HM Naval Base, Devonport, which cost £4,207. I would have allowed a sum of £1,500 in respect of slippage (the Claimant having admitted that the Yard would only have charged about £1,000 for slippage). I would also have disallowed such element of the Cann invoice as was attributable to the charge for escorting staff through security at Devonport.

In Mr. Whitehead’s closing submissions, this head of claim was restricted to the sum of £3,510, representing the Claimant’s own time in attending the Vessel after the incident until the commencement of repairs. This was calculated at the hourly rate of £32.50 (being the rate the Claimant charged customers for his time at his garage) for 108 hours. I would have allowed an estimated sum of £2,000 under this head. Some of the time claimed appeared exaggerated, and, in the absence of any evidence relating to any loss of profits because of time spent dealing with the Vessel as a consequence of the incident, a reduction appears appropriate.

This claim appeared excessive, and the Claimant could not explain adequately in cross-examination the use of 1,706 litres of diesel under this head. Some proportion would have been incurred anyway in routine maintenance. I would have allowed an estimated sum of £300.

The claim for loss of charter income was, in my judgment, wholly unsustainable on the Claimant’s evidence, for reasons which it is not necessary to adumbrate. I formed an adverse view of the Claimant’s general credibility based on the evidence which he gave relating to this issue.

The alternative claim for loss of use is, in principle, well-founded. The capital value of the Vessel was agreed at £85,000. In the absence of further argument (which I would have required as to the presumption of the Commercial Court rate), I would have awarded interest on that figure at a rate of 1% above Bank of England base rate for the time being; see CPR 7.0.17. However, I do not consider that the Claimant is entitled to claim loss of use for the extended period of time for which he claims: i.e. up to the present date on the grounds that the repairs have still not been done and therefore, it is claimed, the loss of use is continuing. Despite his claim to impecuniosity, the Claimant produced no evidence of his earnings or capital assets, and no evidence to show that he could not have realistically obtained a loan from a bank to fund the additional sum of £17,000 or so, by way of the repair costs which I would have additionally awarded him. Likewise, his various explanations as to why he took quite so long to get the repairs done were also unsatisfactory. In the circumstances, and approaching the matter generously so far as the Claimant is concerned, I would have awarded loss of use for two years from the date of the incident in May 2005 to May 2007, being the period in which, on any reasonable basis, the repairs should have been completed.

Accordingly, this claim fails. I will hear argument about costs and any consequential orders upon handing down this judgment.