Note: In this judgment, references in square brackets refer to the trial bundle, unless otherwise stated.
Introduction
- The defendant in this case is TUI UK Limited. TUI is the corporate name of Thomson Holidays, the well-known tour operator. In this judgment, I shall refer to the defendant by the name of Thomson throughout.
- In December 2000, the claimant Zoe Jay booked a "Late Deal" holiday with Thomson for herself, her husband and two friends, to go to Barbados for one week, departing on 28 January 2001. It is common ground that this booking gave rise to a contract between Mrs Jay and Thomson, governed by the terms of the "Late Deal Agreement" set out at [264] ("the Contractual Terms").
- The party duly flew to Barbados on 28 January. The next day, they attended an introductory meeting, presented by a number of Thomson representatives. As a result of what they were told (and saw on a video), they booked a day's sailing excursion on the catamaran "Tiami II" ("Tiami"). This booking constituted a local excursion bought through a uniformed Thomson holiday representative, within the meaning of clause 6 of the Contractual Terms. A voucher was issued to the party [278], headed "St James Travel and Tours Ltd" ("St James Travel") and acknowledging receipt of the relevant deposit. St James Travel was the duly appointed agent of Thomson for the purpose of organising and contracting local excursions for Thomson holidaymakers.
- Tiami is a catamaran of substantial size: length 70ft; beam 31ft; mast height from deck 79ft [336]. The photograph at [135] provides a good overall impression. It has a capacity of 110 passengers, with a crew of 4 [67]. On the day in question in this case, it was to be carrying 47 passengers plus crew.
- The excursion took place on 2 February. On arrival at the quayside, Mrs Jay's party paid the balance of the excursion price and received in return the receipt at [277]. This receipt was headed in the name of Cruise Management Ltd ("CML"). The outward leg of the journey occupied the morning and was uneventful. But on the return leg, at about 1430hrs, at a position approximately half a mile off Batts Rock on the south west coast of Barbados, Tiami was hit by a sudden gust or squall of wind. Within seconds (as I find) the mast broke at a point about 14ft above the mast step and fell to the deck. As it did so, it struck Mrs Jay, first on the head and then on the back. As a result, she suffered serious injury, including a laceration of the scalp and a burst fracture of the L1 vertebra; in addition, she subsequently suffered serious post-traumatic stress disorder.
- Mrs Jay claims damages in respect of these injuries. One thing can be said at the outset: she was the innocent victim of a serious accident of a type that does not ordinarily happen without negligence. She was fully entitled to seek a remedy.
The alleged causes of the accident
- In the nature of things, reports of the accident were made by the skipper of Tiami, Captain Zervos[1] and others. The mast itself was first inspected on 7 February, by Mr Jackman, a marine surveyor acting on behalf of CML; his report [79] identified a manufacturing defect, visible by inspection of the interior of the broken sections. It was next inspected by the manufacturer of Tiami, being Gold Coast Yachts Inc ("Gold Coast") of the US Virgin Islands. It produced the exculpatory report at [394]. In the event, both parties before me agreed that this report was utterly incorrect. In March 2003, Geary Associates, nautical surveyors of Puerto Rico, inspected the mast and produced the report at [336], again reporting the fact of a serious manufacturing defect. In the event, this report was not relied upon at trial. Instead, each party called its respective expert to give evidence that was similar to the Geary report. The briefest description will suffice[2]: the joining timber down the centreline forward had not been properly glued and/or the glass fibre and resin on the interior of the material sections had not been fully consolidated (or wetted out). Differences between the experts on the topic (if any) are immaterial. The mast did indeed suffer a serious manufacturing defect, such that its strength was seriously compromised at the very point where it broke. At [229], Mr Cannell calculated that the mast failed under a buckling load equal to only 19% of the properly constructed design strength – and Captain Biles in cross-examination was content to agree this calculation.
- Moreover and as further agreed by the parties' experts[3], the strength of the mast had been declining with time, as the timber dried out and/or the glue degraded. Whether this additional weakening was attributable to the original defect or was independent of it does not matter; the fact is that the mast started life with a serious defect that compromised its strength and weakened progressively thereafter.
- It was therefore common ground between the parties at trial that a cause of the accident was the manufacturing defect in the mast of Tiami.
(Tiami was built in or about 1996, by Gold Coast. By inference, the mast was manufactured at the same time, also by Gold Coast. If necessary to justify this inference on a balance of probabilities, the figures in the Gold Coast report at [335] disclosed that Gold Coast did indeed manufacture the majority of their masts).
- No doubt acting on advice, Mrs Jay also addressed the seamanship of Captain Zervos as a possible cause of the accident. This led her to make two allegations of negligent seamanship by Captain Zervos: (a) he failed to heed or observe the approaching change in the weather leading to the sudden gust or squall of wind; and (b) when he did act, he did so by the negligent method of an uncontrolled release of the traveller. I shall attempt a more detailed description of allegation (b) later in this judgment.
- In this fashion, Mrs Jay alleges two causes for the accident at paragraph 15 of her Re-Amended Particulars of Claim [10E]. Not only was the mast defective, but also there was negligent seamanship.
- Thomson denies that the seamanship was either negligent or causative of the accident – for reasons which I shall consider in detail later in this judgment. It says that the sole cause of the accident was the defective mast.
The Legal Basis of the Claim
- If all the parties concerned were subject to English law, Mrs Jay would presumably have started her claim against the operator of the excursion and then (on being met by a defence that the cause was a defectively manufactured mast) joined the mast manufacturer as an additional defendant. She could then wait with confidence for one or other (or both) of the defendants to be held liable.
- The relevant parties in the present case are of course not subject to English law (save for Thomson). As a result, Mrs Jay claims against Thomson alone, on the basis that Thomson is liable in respect of the accident, pursuant to clauses 6 and 7 of the Contractual Terms. Clause 6 and the relevant parts of clause 7 are as follows:
"6. Our responsibility for your holiday
We will arrange for you to have the services that make up the holiday that you choose and that we confirm these services will be provided either directly by us or by independent suppliers contracted by us. We are responsible for making sure that each part of the holiday you book with us is provided to a reasonable standard and as described in the brochure or in any amendments to it. If any part of your holiday is not provided as described and this spoils your holiday, we will pay you appropriate compensation (see the important note in the Compensation box). Also, if you buy a local excursion or tour through a uniformed Thomson Holiday Rep, we will pay you reasonable compensation if it is not as advertised on the Thomson Noticeboard or in the Visitors Book or Thomson Resort Guide.
We have taken all reasonable care to make sure that all the services which make up the holidays advertised are provided by efficient, safe and reputable businesses, and that they follow the local and national laws and regulations of the country where they are provided. These are often different from and set standards much lower than those which we are used to in the UK.
"7. Personal Injury 1
This section covers injury, illness or death while you are using the services that we have arranged for you. We have no direct control over the way our suppliers provide their services. But everyone employed or contracted by us or by our suppliers is expected to carry out their duties properly. If they do not carry out their duties properly or at all and that fault results in your injury, illness or death, we may make a payment to you. We will not make any payment if your injury, illness or death was caused by an event or circumstances which that person could not have predicted or avoided even if they had taken all necessary and due care. We will not make any payment if your illness, injury or death was your own fault. If we do make a payment it will be similar to one you would receive under English law in an English court."
- First, Mrs Jay claims under clause 6. Her claim here is simplicity itself: by reason of the accident, the excursion was not "as advertised" in the Thomson guide at [271], for the reasons particularised in the Voluntary Particulars of paragraph 16 of her Re-Amended Particulars of Claim, as served during the course of the trial [10I–J]. She is therefore entitled to "reasonable compensation". And this claim does not depend on proof any specific cause for the accident.
- Second, Mrs Jay alleges that Thomson is liable in respect of each of the two alleged causes of the accident, pursuant to the precise terms of clause 7. More particularly:
(1) As to negligent seamanship, the excursion operator was contracted to Thomson[4] and did not carry out its duties properly, by reason of the negligence of its servant or agent, Captain Zervos.
Mr Wardell QC on behalf of Thomson accepted this principle of liability of Thomson in such circumstances, whilst denying the underlying allegation of negligence.
(2) As to the defective mast, Mrs Jay relies upon the Voluntary Particulars of paragraph 16 of her Re-Amended Particulars of Claim, in order to identify a party contracted to the excursion operator which allegedly did not carry out its duties properly and thereby allegedly triggered Thomson's liability under clause 7.
- Mrs Jay raised two further contentions in her Re-Amended Particulars of Claim, namely breach of implied contractual term[5] and breach of the Package Travel, Package Holidays and Package Tours Regulations 1992[6]. In the course of his submissions however, Mr Dingemans QC on behalf of Mrs Jay accepted that neither of these contentions could add anything to the claim as advanced under clauses 6 and 7 of the Contractual Terms. In those circumstances, I say nothing further about them. (Not least, there would be substantial difficulty in demonstrating that this excursion was part of the "package", so as to fall within Regulation 15 of the 1992 Regulations in the first place)
- I also record the fact that quantum was agreed between the parties by the time of trial, in the sum of £160,000.
The claim under clause 6
- Mrs Jay seeks to construe clause 6 so as to create strict liability of Thomson for any accident (causing injury) or other mishap, however occurring. The sole requirement is that the holiday is not provided "as described" or the excursion is not "as advertised" – as the case may be. If correct, this construction would be surprising: not only would it create a very wide range of strict liability on the part of Thomson, but also it would render clause 7 entirely superfluous.
- In closing submissions, Mr Wardell contended that Thomson's exposure under clause 6 is indeed more restricted. In the first place, he submitted that a contract of this type will not create an absolute liability unless there is a (clear) intention to that effect. For this purpose, he relied on the Court of Appeal decision in Hone v Going Places Leisure Travel Limited [2001] EWCA Civ 947, in particular the following passage from the judgment of Longmore LJ:
"[12] … Contracts for holidays are often made informally and it will often be necessary to imply a term as to the standard of performance since the requirement will not be set out in any detail. In the absence of any contrary intention, the normal implication will be that the service contracted for will be rendered with reasonable skill and care. Of course, absolute obligations may be assumed. If the brochure or advertisement, on which the consumer relies, promises a swimming pool, it will be a term of the contract that a swimming pool will be provided. But, in the absence of express wording, there would not be absolute obligation, for example, to ensure that the holidaymaker catches no infection whilst swimming in the swimming pool. The obligation assumed will be that reasonable skill and care would be taken to ensure that the pool is free from infection."
- In my judgment, this approach to construction has potential force in the present case, but it leaves unaltered the crucial question whether the words "as advertised" do or do not create absolute liability. Moreover, this approach conflicts with Mr Wardell's own construction of the clause. He contended that the clause does create absolute liability, but only as to "the provision of the constituent parts of the relevant excursion". Conversely, he submitted that the clause does not create "a warranty as to the quality of performance".
- In my judgment, there are many difficulties with Mr Wardell's construction. What are "the constituent elements" of an excursion and what is meant by "the provision" of those elements? For example, suppose that the mast of Tiami had failed only a few minutes into the voyage, but without injury. The sole consequence presumably would have been that Tiami would either have motored or been towed back to port, arriving (say) an hour after its departure. Mr Wardell would presumably be constrained to agree that the excursion was not "as advertised" and that Thomson would be liable to pay compensation. However, it would then be difficult on his construction to distinguish this hypothetical case from the present case.
- In my judgment, a simpler construction applies, which happens to produce a result similar to that for which Mr Wardell contends. I refer to the opening words of clause 7:
"This section covers injury, illness or death while you are using the services that we have arranged for you."
Clause 7 then goes on to stipulate that Thomson may [sic] make a payment in certain circumstances, which will be "similar to one you would receive under English law in an English court". That is to say, Thomson will pay damages for personal injuries suffered in certain circumstances. It seems to me that there is then a clear distinction between clause 7, which deals with personal injury, and clause 6, which does not deal with personal injury. Under clause 6, Thomson will pay "reasonable compensation" for spoiled excursions (akin to the spoiled holiday), falling short of personal injury.
- This construction also avoids a result that would render clause 7 superfluous.
- I therefore reject Mrs Jay's claim insofar as it rests on clause 6.
The claim under clause 7: negligent seamanship
- The allegations
At paragraph 10 above, I identified two allegations of negligent seamanship by Captain Zervos: (a) he failed to heed or observe the approaching change in the weather conditions leading to the sudden gust or squall of wind; and (b) when he did act, he did so by the negligent method of an uncontrolled release of the traveller. It is now necessary to set out these two allegations of negligent seamanship in greater detail.
- In his manuscript report written the same day as the accident , Captain Zervos wrote [330]:
"… We were hit by a sudden gust of wind, I was in the process of dumping the traveller when the mast gave way."
In the typed report dated 5 February 2001, unsigned but attributed to him, he wrote [331]:
"… We were hit by a sudden wind squall. As the wind speed approached 26 knots I made an attempt to de-power the main-sail by dumping the traveller, while in the process of completing this maneuver [sic] the mast broke and collapsed outwards."
It is apparent from the lay witness evidence that there had been approaching signs of a change in the weather over a period of minutes preceding the dismasting. It is common ground (by inference from the available evidence) that Captain Zervos did not in fact take any responsive action until the wind actually hit Tiami. Hence Mrs Jay's allegation that he failed to heed or observe the approaching change in the weather conditions.
- The next step is an explanation of what might be meant by the phrase "dumping the traveller". In the photograph at [191], a rope and pulley system is seen, attached to the boom at the top and to a horizontal slide at the bottom. The lower block is known as the "traveller car". The movement of the traveller car along the slide is controlled by a rope running to port and a rope running to starboard, which in each case can be seen at [191] to return to a black jamming cleat positioned just under the helm seat. A close-up of the port jamming cleat is seen in the photograph at [192]. It can thus be seen that, if the port jamming cleat is released, the traveller car is free to move to starboard and, with it, the boom above. The mainsail is thereby eased. As Mr Cannell explained in cross-examination, the captain of this type of boat would tend to control the mainsail by this traveller mechanism, rather than by easing the mainsheet itself.
- It will also be seen from the photograph at [191] that the traveller can be released in one of two ways. First, the rope can simply be released from the jamming cleat, without more. The traveller is now wholly unrestrained in its movement to starboard and, with the mainsail under load, it will race to the end of the slide and slam into the end. This event can be described as an uncontrolled release of the traveller. Alternatively, the rope is not simply let go, when released from the jamming cleat. Instead, it is controlled by use of a small winch close to the jamming cleat, difficult to discern on the photograph at [191], but described by Mr Cannell. By this method, the traveller is allowed to move to such extent as the helmsman determines, before closing the jamming cleat once more and thereby fixing the traveller in its new position. This is a controlled release of the traveller.
- It was the uncontrolled release that first came to be known as "dumping the traveller" in sail racing circles. It is a sudden event which risks damage to the traveller and/or the end-stop, causes a loud bang and (according to Captain Biles, but not Mr Cannell) would cause the boat to shudder. Mr Cannell also added a possible risk to a passenger positioned as particularly shown in the top photograph at [238] of being struck by a rope. But this was not the risk that materialised and caused injury to Mrs Jay. She was positioned elsewhere on the boat. Nor was there any evidence of a passenger in that position at the time of the accident.
- The experts agreed that an uncontrolled release of the traveller is not good sailing – save when racing and the need really does arise. For her part, Mrs Jay alleges that this is precisely what Captain Zervos did on this occasion. It was not merely poor sailing; it was negligent sailing. Hence Mrs Jay's allegation that, when he did act, Captain Zervos did so by the negligent method of an uncontrolled release of the traveller.
- The context for the allegations
Before proceeding with an analysis of these allegations however, I consider it necessary also to say something about the overall context.
- First, it is common ground that, unknown to anyone at the time, Tiami was proceeding with a seriously defective mast. In cross-examination, Capital Biles expressly agreed with the proposition that the mast constituted "an accident waiting to happen". In his own words, the mast was bound to come down sooner or later. Indeed, we can take this proposition one step further. Prior to the arrival of the gust or squall of wind, Tiami was proceeding uneventfully under a relative wind speed of 18-22 knots. There was nothing whatever exceptional about this, either in terms of weather conditions or in terms of Tiami's capacity. The design of the mast was such that failure should occur only at a wind speed of 65 knots, if soundly constructed. Indeed, under the load conditions at the time, Tiami would capsize at 57 knots of wind, before the mast failed.
- In contrast and by reason of the defect, it so happened that that afternoon, as Tiami proceeded in a relative wind speed of 18-22 knots, the mast was in fact at its limit. Any slight further increase in loading was going to induce the accident that was waiting to happen. It is not necessary to seek a finding of negligence as explanation, if that further loading did occur. Rather, the simple explanation of mast failure is available.
- Furthermore, in my judgment there is a certain air of unreality when seeking to analyse the actions of Captain Zervos and determine whether they were "negligent". When asked what would have happened if the mast had been sound and Captain Zervos had deliberately decided to do absolutely nothing in response to the gust or squall of wind, Captain Biles replied that Tiami would have picked up speed and the windward hull would have started to lift. If there happened to be a passenger on the starboard stern positioned as shown in the photograph at [135], that individual might be at risk of going overboard, but beyond that Capital Biles spoke of no risk of injury. On the contrary those who were drinking tea at the time (as, for example, described by Verity Dawson at [115]) would scarcely have noticed their drinks spill, if at all. For his part, Mr Cannell in cross-examination did not consider that there would even be any risk of a passenger on the stern going overboard: "the change is very little". In general, he considered that "most passengers wouldn't feel the difference". In short, if Captain Zervos had decided to do nothing at all, he would not in my judgment have created any relevant foreseeable risk of injury, or even damage. If necessary for this conclusion, I prefer the evidence of Mr Cannell on the topic to that of Captain Biles.
- Moreover, like considerations would have applied, if the mast had been sound and Captain Zervos did do what is alleged against him, namely release the traveller in an uncontrolled manner. Captain Biles considered that the boat would shudder, but (again) drinks would not spill. Mr Cannell did not think that the boat would even shudder. Save for the irrelevant risk to a passenger positioned close to the traveller itself (as discussed above), neither expert mentioned any risk of injury arising from the event. Mr Dingemans attempted to repair this absence of risk by putting to Mr Cannell the theoretical risk of gear failure arising from any increase in loading on the mainsail. In my judgment, this theoretical risk does not fall within the description of reasonably foreseeable risk, when operating so far within the proper capacity of the vessel.
- This topic of unreality (as I have described it) goes one stage even further. At [252], Captain Biles postulated three options that were available to Captain Zervos, which would have relieved the strain on the rigging and on the complete mast and sail installation:
"(1) Reduce sail by either putting in a further reef in the mainsail or removing the sails completely.
(2) Ease out the traveller for the mainsail and/or ease out the mainsheet
so that the mainsail lost all driving power. …
(3) Turn the yacht into the wind … so that progressively the driving power is lost from the sails."
In cross-examination, Captain Biles openly accepted that option 3 would have the initial effect of increasing the strain on the mast and sail installation, not reducing it. He therefore withdrew this option. And option 1 would have taken "several minutes" in any event, at that (as I understood it) to follow after turning into the wind, in accordance with option 3. This left solely option 2 (at that, with a complication arising as to easing the mainsheet as a result of Captain Biles' paragraph 5.2.25 at [173]). Overall therefore, we have a list of non-negligent actions proposed on behalf of Mrs Jay, but with the majority either not feasible or insufficient to avoid the accident.
- Analysis of the allegations
I add just one further preliminary comment, which is a point more of theory than of substance. When, as here, issues of foreseeability and/or causation arise, I am mindful that those issues are said variously to go to the existence of a duty and/or its breach, before coming to the conventional issues of causation and remoteness. For this reason, I refrain from addressing the question: was there negligent seamanship by Captain Zervos? Instead, I pose the question using as neutral a word as possible: was there poor seamanship by Captain Zervos? The question of negligence can follow if the answer is Yes.
- Most unfortunately, Captain Zervos died some time between 22 May 2006 (when Mr Cannell saw him in Barbados) and the date of trial. Nor were there any eye witnesses as to the events at the helm. Mrs Jay was therefore obliged to draw inferences from the lay witness evidence and the contemporaneous documentary evidence.
- The first allegation is that Captain Zervos failed to keep a proper lookout, so as to observe and heed the approaching change in the weather and sea conditions[7]. A substantial body of lay evidence was adduced to the effect that there were indeed signs of an impending change in the conditions during the minutes leading up to the accident. I refer here to the oral evidence of Mrs Jay and on her behalf, Mr Jay, Sarah Williams, Gillian Tuck and Karen Friel; and on behalf of Thomson, the evidence read under the Civil Evidence Act of Verity Dawson, Justine Bensley, Leslie Taylor and Tina Hill. I have no hesitation in saying that all these witnesses were broadly correct, to the following overall effect: clouds approached; the sun went in; the wind picked up somewhat and with it, the sea became a little more choppy; Tiami picked up speed a bit; it began to spit with rain.
- However, these witnesses were not describing a severe change in the weather conditions. Gillian Tuck said as much[8]. As measured by Captain Zervos on his anemometer (and as accepted by both parties at trial), the wind when it arrived increased only from a range of 18 - 22 knots up to 26 knots. And as one might expect, the statements of the first mate Mr Joseph[9] and Captain Zervos himself[10] stated that rain squalls such as this are not at all unusual in the Caribbean. I accept this last assertion.
- It was common ground between the parties that Captain Zervos did not take any responsive action before the gust or squall arrived. Nor did he make any mention of the build-up to the gust or squall in the course of his two early statements[11]. The closest to any description that he came was at paragraph 11 of his formal witness statement at [96]:
"As we were proceeding along the coast, it began to rain slightly. These rain squalls are normal in the Caribbean."
- From the above evidence, Mr Dingemans contended for an inference that Captain Zervos did not even see the approaching change; he was not keeping a proper lookout. And he was supported for this purpose by the conclusions of Captain Biles at paragraph 5.2.17 and 6.2 of his report[12]. In cross-examination, Mr Wardell expressed criticism of Captain Biles for drawing adverse inferences in the course of his report solely because contrary evidence was absent. I do not join in this criticism insofar as it was mounted on a general basis; nor do I join in Mr Wardell's implied suggestion that Captain Biles lacked relevant experience. However, I do consider that there were instances where Captain Biles drew unsupported inferences and in my judgment this was an example. (The question whether Captain Zervos was or was not keeping a proper lookout was probably a question beyond his expert remit anyway).
- In my judgment, there is an obvious alternative explanation. Captain Zervos did see the approaching change in the weather conditions; it would have been difficult for him not to do so. But such an event was not even remotely exceptional and it represented no challenge whatsoever to a boat of Tiami's size and capacity. I accept Mr Cannell's evidence that there was no need to take any pre-emptive action (in particular, to ease the traveller) before the wind arrived.
- It would therefore have been perfectly proper for Captain Zervos to observe the approaching change in the weather conditions, but deliberately decide that no action was necessary at that stage. In my judgment, there is no evidence to demonstrate that he did not follow this proper course. I reject the allegation that he failed to keep a proper lookout.
- In reaching this conclusion, I do not overlook the evidence adduced as to the actions of Mr Allen, captain of Stilleto IV, a significantly smaller catamaran[13] positioned approximately 1km from Tiami at the time of the accident. His statement at [90] was admitted under the Civil Evidence Act. He turned into the wind "as the cloud approached". This was undoubtedly a legitimate action on his part, but his boat was much smaller and his mainsail was "fully raised" – by which I infer an absence of reefing, unlike Tiami, which had the first reef set. Karen Friel was a passenger on Stilleto and asserted at [64] that Captain Allen lowered his sail at an early stage. In oral evidence however, she agreed that she could not really say whether this was before or after the dismasting of Tiami. This left Captain Allen's statement that he lowered his mainsail only in response to the dismasting of Tiami. In short, I do not find any evidence of actions on the part of Captain Allen which constitute evidence of poor seamanship on the part of Captain Zervos.
- I turn to Mrs Jay's second allegation of poor seamanship: when he did act, Captain Zervos acted poorly, in that he released the traveller in an uncontrolled manner. He should have eased the traveller, in controlled fashion.
- From the details that I have already set out at paragraphs 28 to 30 above, it might seem obvious that this is exactly what Captain Zervos did do. "Dumping the traveller" sounds like a sudden release and Captain Biles in the course of cross-examination twice said that that is exactly what it does mean.
- However, three witnesses spoke clearly to the effect that the phrase is now used to embrace any release of the traveller, whether controlled or uncontrolled. Mr Cannell described how it did originally mean an uncontrolled release, when coined and used in sail racing circles. But since then the phrase has been adopted by the cruising fraternity so as to embrace both controlled and uncontrolled release of the traveller. As he said in cross-examination: "I don't interpret dumping as letting [the traveller] go and hitting the end." And his expert evidence on this topic was supported by the oral evidence of the first mate, Mr Joseph and the chief executive officer of the various companies associated with Tiami, Denis Roach.
- Moreover, Mr Cannell pointed to certain phrases used by Captain Zervos in his various statements:
"I was in the process of dumping the traveller when the mast gave way": [330]
"… While in the process of completing this manoeuvre [of dumping the traveller] the mast broke and collapsed outwards": [311]
"… Whilst I was completing this manoeuvre [of dumping the traveller] the mast broke and collapsed outwards": [96]
Mr Cannell described how the uncontrolled release does not constitute either a process or a manoeuvre; it is completed instantaneously. He would contrast the controlled release. He also asserted that Captain Zervos would be under no need to execute an uncontrolled release and was therefore unlikely to have done so.
- I do not find resolution of this issue easy. Instinct still says that "dumping the traveller" involves a sudden event. However, I simply cannot discount this body of evidence on behalf of Thomson, including especially the expert evidence of Mr Cannell. If compelled to do so, I would have found as a matter of fact that the evidence on behalf of Mrs Jay failed to prove that Captain Zervos did do the act alleged against him, namely execute an uncontrolled release of the traveller.
- In my judgment however, a factual conclusion on this issue is in fact unnecessary. If one assumes that Captain Zervos did execute an uncontrolled release, then it was readily accepted by Mr Cannell that was an unnecessary step and an overreaction - with the inevitable inference that it also constituted poor seamanship. But I have already described[14] how an uncontrolled release of the traveller carried no relevant risk of adverse consequences, let alone any relevant risk of injury. And indeed at paragraph 5.2.20 of his report [172], Captain Biles only described an uncontrolled release in the following terms:
"… Doing so is not necessarily good practice (other than in an emergency) and it is better to use the traveller in a controlled manner."
In short, it really did not matter even if Captain Zervos did execute an uncontrolled release. Such action would have constituted poor seamanship, but in my judgment it would not have constituted actionable negligence.
- When stating the above, I am referring in particular to the absence of foreseeable risk arising from the relevant action. Whether this means that there was no duty in the first place or no breach of duty, I do not determine. I do consider that there was no actionable negligence.
- Alternatively, I would have reached the same conclusion by application of conventional principles of causation. This would have resulted from either or both of the following approaches:
(1) Even if Captain Zervos had eased the traveller in a controlled manner, there can be no telling whether the consequent reduction in loading on the mainsail would have sufficiently offset the increased loading arising from the gust or squall of wind. In those circumstances, it remains wholly uncertain whether the mast would or would not have failed. Paragraph 5.2.25 of Captain Biles' report at [173] refers.
(2) Even if, contrary to the above, the "but for" test is satisfied, I would not find that even an uncontrolled release of the traveller constituted a truly causative event. Of itself, an uncontrolled release carried no relevant adverse risks. The true cause of this accident was the defective mast.
- Mrs Jay's claim must therefore fail, insofar as it is based on allegations of negligent seamanship.
The claim under clause 7: the defective mast
- At paragraph 16 of her Re-Amended Particulars of Claim, Mrs Jay asserted that Gold Coast as manufacturer of Tiami and its mast failed to construct the mast with reasonable care and skill and thereby did not carry out its duties properly, within the meaning of clause 7. Thus far, this allegation was non-contentious, on the basis that the duties in question were owed to the original purchasers of Tiami (in contract) and to anyone who might be injured by reason of the defective mast (in negligence). With respect, the drafting of paragraph 16 of the Re-Amended Particulars of Claim then became somewhat obscure as to the remaining links alleged in order to complete a cause of action under clause 7. However, the intention appears to have been to allege that Gold Coast was contracted to CML, who in turn was the relevant supplier to Thomson. (At paragraph 8 of her Re-Amended Particulars of Claim, Mrs Jay had already pleaded that the "operator" of Tiami was CML and that the "manufacturer and supplier" was Gold Coast).
- The Re-Amended Defence did not elucidate the issue much further, or state a clear case in response. At paragraph 6(5), it was pleaded that the excursion was operated by one or more of three companies, with apparent indifference as to which. It was denied that any contract was made with Thomson, whereas it is clear that a contract was made with Thomson, via their agent, St James Travel. At paragraph 14, the only plea relevant to this issue was to the effect that "the supplier" could not have predicted or avoided the failure of the mast even if it had taken all necessary and due care, within the further meaning of clause 7. The pleader did not seek to identify the supplier or to respond to the apparent allegation in the Re-Amended Particulars of Claim, to the effect that Gold Coast had contracted with the supplier to Thomson. At paragraph 15, it was pleaded that Gold Coast did not supply a service to Thomson or Mrs Jay.
- This somewhat confused situation was only compounded by the original witness statements of Mr Denis Roach, chief executive officer of CML. In his first statement dated 11 April 2006 at paragraph 4 [67], he stated without qualification that "the company owns seven vessels", clearly including Tiami. In his second statement dated as late as 21 September 2006 at paragraph 2 [83], he used the phrase "before any [CML] vessel sets sail" and at paragraphs 4 and 6 he referred respectively to "our vessels" and "our boats". It is clear that very little attention on behalf of Thomson was given either to the corporate structure under which Tiami operated or to the precise wording of clause 7, until very late in the day indeed.
- In fact it was only during the course of trial that a further witness statement by Mr Roach dated 19 October 2006 was produced, detailing the corporate structure. Mr Dingemans protested at the late production of evidence in this fashion, but nevertheless accepted that this statement should be admitted in evidence. Mr Roach duly gave oral evidence in support.
- Faced with this development, Mr Dingemans was obliged to refine his case, in particular as to the relevant parties for the purposes of clause 7. He did so in the form of Voluntary Further Particulars of paragraph 16 of the Re-Amended Particulars of Claim [10I], served during the course of the trial. This document must be taken as the definitive statement of Ms Jay's claim under clause 7. For example, it is not pleaded that CML represented that it owned and operated Tiami in circumstances that amounted to an estoppel; nor am I suggesting that this could have been pleaded.
- It is next necessary to address the manner of construction of clause 7. Mr Wardell contended for a bold construction, amounting to the replacement of the express words of clause 7 by words of his own. I hope that I represent his submissions accurately when I record them as follows:
(1) Under clause 6, Thomson undertakes responsibility for ensuring that services (including excursions) are provided to a reasonable standard.
(2) When read together, clauses 6 and 7 amount to an express obligation on the part of Thomson to provide services with reasonable care and skill. In turn, this obligation is subject to extension under clause 7, whereby Thomson assumes responsibility for the exercise of reasonable care and skill where the relevant services are provided by others.
(3) Clause 7 may therefore be recast as follows: "If there is a failure to [provide] services to a reasonable standard and that failure causes injury, Thomson will be liable to pay compensation."
(4) Clauses 6 and 7 do not on their true construction amount to an express warranty of safety. The obligations of Thomson extend only to the exercise of reasonable care and skill, not to any obligations of strict liability.
On this basis, Mr Wardell submitted that the starting point in the present case was to determine what constituted the provision of services, to be followed by the question whether that provision was made with reasonable care and skill. There was a marked reluctance on his part to enter into the actual words of clause 7.
- I do not accept this manner of construction. For example, when tested as to what amounted to the provision of services (especially as to a hypothetical defective glass door in various scenarios in a hotel and then in a boat), Mr Wardell was unable to produce a consistent set of outcomes. At one stage, he felt constrained to concede that Thomson's responsibility would stretch down a contractual supply line without limit; as Mr Dingemans subsequently stated, this was a concession that Mrs Jay would have liked to take up, but could not properly do so, given the wording of clause 7. In general, I do not accept that the express words of clause 7 can be disregarded in the wholesale fashion for which Mr Wardell contended.
- I turn instead to the express words of clause 7 and re-state the words that are relevant for present purposes:
" … everyone employed or contracted by us or by our suppliers is expected to carry out their duties properly. If they do not carry out their duties properly or at all and that fault results in your injury, illness or death, we may make a payment to you. We will not make any payment if your injury, illness or death was caused by an event or circumstances which that person could not have predicted or avoided even if they had taken all necessary and due care. We will not make any payment if your illness, injury or death was your own fault."
If drafted in more old-fashioned style so as to refer only to "servants or agents of us or our suppliers", I suspect that the construction of these words would have been a deal easier. Thomson would have been accepting liability for failure of duty by both itself and its suppliers (in each case, via those for whom there is vicarious responsibility). This would have followed Regulation 15 to a large extent, if not completely. It is the use of the alternative word "contracted" that introduces the difficulty. In particular and perhaps tellingly, Mrs Jay by her Voluntary Particulars does not allege that any supplier as such (i.e. by its servants or agents) failed to carry out its duties properly. For example, she does not allege that Gold Coast was a supplier, so as to invoke clause 7 immediately. Instead, she seeks to identify a contractor to a supplier and then attach a failure of duty to that contractor. Does clause 7 permit an excursion of this type down a contractual line?
- This construction of clause 7 would create an artificial limit. A claimant could identify either a supplier or a contractor to that supplier. But he/she could go no further. In the present case for example, the party undoubtedly in negligent breach of its duties was Gold Coast. If Gold Coast could be identified as a contractor to Thomson's supplier, Mrs Jay could invoke clause 7. But if by historical accident the contractual chain leading to Gold Coast was longer (for example, if Tiami had passed through the hands of successive owners), she could not do so – or at least, she would have to adopt a different route under clause 7.
- Moreover, for failure of duty by a contractor under clause 7, Mrs Jay would wish to rely where necessary on breach of strict contractual duty(-ies) owed to the supplier, aside from any ordinary duty of care owed to those who might be injured by negligence. This route to liability would lead to significant potential extension of Thomson's liability to a claimant, beyond mere provision of the excursion. It would also sit ill with the express use of the word "fault" in clause 7.
- Meanwhile, another construction problem points the other way. Why does clause 7 go on to provide an express exclusion of liability where the party in breach of the duty could not have predicted or avoided the injury in question, even if it had taken all necessary and due care? Why is any exclusion needed if there can be no strict liability in the first place? Admittedly the word "even" is awkward; it might be thought to connote a want of care in the preceding breach of duty. But that preceding breach of duty has already been defined by clause 7 as "[resulting] in your injury, illness or death". In that case, what purpose is served by the exclusion if the breach could only have been breach of a duty of care? (One explanation for this particular problem might be the fact of partial mimicry here of Regulation 15(2) of the 1992 Regulations. But this explanation would not furnish a solution)
- For a coherent construction, it is necessary in my judgment to return to the scope of the word "duties". For present purposes, the context of clause 7 (also clause 6 for that matter) is the provision of services arranged by Thomson. Basically, a holidaymaker can expect proper performance of those services, by the use of reasonable care. This is reinforced by (a) Hone v Going Places Leisure Travel Limited,[15] to the effect that a contract of this type will not create an absolute liability unless there is a (clear) intention to do so; and (b) the use of the word "fault", as already mentioned. And if this is the proper interpretation, the apparent extension to any contractor to a supplier turns out to be self-limiting, because it applies only to those contractors who bore duties of proper performance of the immediate services that constituted the excursion. By this circuitous route, we would in effect be back to the old-fashioned situation described in paragraph 63 above – having simply added recognition of the fact that the provision of services is often "outsourced" to contractors, rather than mere servants or agents.
- I conclude that this is indeed the proper construction of clause 7. In particular, the duties in question are the duties of reasonable care in the provision of the services that constitute the excursion. They do not include strict contractual obligations. This conclusion may or may not correspond to the construction for which Mr Wardell originally contended, but I believe that any such correspondence would be coincidental.
- I mention at this stage the written further submissions that I received on this topic after the trial – produced at my request in order to address the decided holiday cases on defective premises and consider whether they offer any assistance as to strict contractual obligations. I am grateful for those submissions. In the event, I have not gained any significant assistance, for the principal reason that the cases cited all centred on "improper performance", on an accepted basis[16] that the test required a want of care by someone. In none of them was it contended that contractual provisions introduced a strict liability.
- All that said, I do not consider that the answer to this issue of construction actually matters – or at least not in this case. For if the construction of Mr Dingemans on behalf of Mrs Jay is correct, breach of a strict contractual obligation is still subject to the express exclusion based on the assumption that necessary and due care was taken. Subject only to a different burden of proof, the outcome is the same.
- For this reason and in case I am wrong as to the proper construction, I propose for the remainder of this judgment to assume (in Mrs Jay's favour) that the word "duties" does include strict contractual obligations, after all. As will be seen, this course produces rather obscure reasoning at stages – which in turn may underline the artificiality of the assumption. But I persist nonetheless.
- Mrs Jay's Voluntary Particulars then set about the task of bringing her claim within the words of clause 7. But it is necessary first to address the corporate structure surrounding Tiami, as eventually evidenced by Mr Roach.
- The relevant evidence is at [85A], supported by the further documents produced by Mr Roach at [85B-85M]. Mr Roach was cross-examined on these matters. In the event, I accept what is set out at [85A]. Contrary to Mr Roach's earlier statement, CML does not own seven vessels. The seven vessels are owned by three separate companies, namely Jolly Roger Limited, Tiami Cruises Limited (as to five vessels) and Tall Ships Inc. These three companies are wholly owned subsidiaries of Coastal Holdings Limited. Coastal Holdings has a fourth wholly owned subsidiary, namely CML. CML is the company that operates the vessels and in effect is the sole trading company within the group. For this purpose, the three vessel owning companies lease their vessels to CML (whether or not pursuant to formal charterparties).
- To complete the relevant story:
(1) Mr Roach described how the first company acquired by Coastal Holdings Limited was Tall Ships Inc. "Tall Ships" thereupon became a trading name for the entire operation of Coastal Holdings and its subsidiaries. This trading name "stuck" from that time to the present.
(2) Coastal Holdings Limited purchased the entire share capital of Tiami Cruises Limited in about 1997. Tiami Cruises Limited had previously purchased Tiami II from Gold Coast in 1996, as evidenced by the documents at [346] and [347].
(3) All contracts of employment lie with CML. Thus Captain Zervos and crew of Tiami were all employed by CML. Further, CML pay all the operating costs of Tiami and undertake all maintenance.
- Turning back to clause 7, who was the supplier to Thomson? Mr Roach stated that it was CML, both in theory (as a result of the corporate structure) and in practice. This was supported by the witness statement of the Thomson resort manager, Helen Richmond [101]. Her statement was admitted under the Civil Evidence Act and therefore does not carry the same weight that would have been carried by her oral evidence. Nevertheless, at paragraphs 4, 5 and 8, she speaks only of CML. There is also the document at [416-8], created by Ms Richmond on 10 February 2001 and naming CML as the supplier. And finally, the receipt at [277] is consistent with CML as supplier. In the result and notwithstanding vagueness elsewhere in the documentation, I am satisfied that CML was the supplier of the excursion to Thomson – or at least a supplier.
- In her Voluntary Particulars [10A], Mrs Jay then adopts two approaches:
(1) Tiami Cruises Limited was a supplier, together with CML; alternatively
(2) CML was the sole supplier.
- There is a great attraction to Mrs Jay if she can establish that Tiami Cruises Limited was a supplier to Thomson. For as it happens, Tiami Cruises Limited had owned Tiami from new and had purchased it direct from the manufacturer, Gold Coast: see again the certificate of ownership at [346]. In those circumstances, Mrs Jay could easily say that Gold Coast was contracted by a supplier to Thomson and had failed to carry out its duties properly. She could then submit that the requirements of clause 7 are satisfied. (In this connection, I note the point already made at paragraph 63 above: there is no allegation that Gold Coast was itself a supplier, so as to invoke clause 7 immediately. It was not a supplier of the services that constituted the excursion)
- I shall consider the two approaches in turn.
- Tiami Cruises Limited as a supplier
Mrs Jay divides this approach into two further parts, as identified at sub-paragraphs (a) and (b) in her Voluntary Particulars. At (b), she does not expressly identify Tiami Cruises Limited as a supplier jointly with CML, but she probably does so by implication and in any event the point does not matter.
- I deal with sub-paragraph (b) first. It alleges simply that Tiami was "an integral part" of the excursion, that it was owned by Tiami Cruises Limited and that Tiami Cruises Limited was therefore a supplier of the excursion. Attractive though this approach would be towards producing a favourable outcome for Mrs Jay, I cannot accept it. Tiami was the supplier of the boat to CML. It was still CML who supplied the excursion. By way of analogy, we know that many commercial aircraft are leased to their respective airlines. The leasing company does not supply the flights to the passengers, or even to the tour operators who might block book sections or even charter the whole plane. And I do not consider that the corporate proximity of Tiami Cruises Limited to CML alters this position.
- I turn to sub-paragraph (a). As there pleaded, the closest we come to a written contract between Thomson and its supplier is the document at [279] – being for a later period, but agreed to be representative of an earlier document. It is correctly pleaded that Thomson's supplier was there described simply as "Denis Roach, Tall Ships". Given that this was a trading name which embraced the entire operation of Coastal Holdings Limited, Mrs Jay contends that the resulting "contract to provide the excursion" was made with both CML and Tiami Cruises Limited. Absent any evidence at all about the precise identity of the underlying contracting party, I consider that this approach might have force. In particular, if a number of companies authorise an agent to use a trading name indiscriminately in order to describe the operations of them all, the individual companies cannot complain if individual contractual liability follows. However, any such outcome must yield to the facts of the case, if the individual acting under the trading name does sufficiently identify the relevant principal. Moreover, it must be recalled that the contract in question here is the contract with Thomson, not a contract with Mrs Jay; it is Thomson's knowledge and intentions that matter. On the evidence just identified at paragraph 75 above, I am constrained to find that Thomson knew that they were dealing with CML and intended to deal with CML. And I do not feel able to lift the veil of the corporate group beyond CML.
- Accordingly, I find CML was not only a supplier of the excursion to Thomson, but also the sole supplier.
- CML as sole supplier
Mrs Jay then correctly identifies Tiami Cruises Limited as a contractor to CML, for the provision of Tiami by lease/charter, for the known purpose of being used to provide passenger excursions.
- The next step is for Mrs Jay to identify a breach of duty by Tiami Cruises Limited. She does this by a series of propositions:
(1) Tiami Cruises Limited was acting in the course of business.
(2) If English law were to apply, sections 9(2) and 9(5) of the Supply of Goods and Services Act 1982 would respectively impose implied contractual terms of satisfactory quality and fitness for purpose.
(3) In the absence of contrary evidence, foreign law (viz. the law of Barbados) is assumed to be the same as English law.
(4) On that basis, Tiami Cruises Limited was subject to those implied contractual obligations and was in breach of those strict obligations, by reason of the defective mast. (I emphasise here the assumption for present purposes that the word "duties" in clause 7 does include strict contractual obligations)
- This reasoning emerged only in the course of Mr Dingemans' closing submissions. When invited to reply on this particular point, Mr Wardell (understandably) was not in a position to address either the applicability of the assumption or the content of Barbados law, but he did identify an immediate counter-argument, arising from the following specific passage in clause 7:
"We will not make any payment if your injury, illness or death was caused by an event or circumstances which that person could not have predicted or avoided even if they had taken all necessary and due care."
Mr Wardell asserted that the defective mast was clearly a latent defect which could not have been detected even with the use of all necessary and due care. Mr Dingemans (understandably) had not prepared any detailed reply to this counter-argument.
- I invited written submissions on these specific points (plus the topic identified earlier in this judgment). I received those submissions on 2/3 November 2006 and have considered them in full; I am grateful to both counsel.
- Barbados law
For the reasons stated at Dicey & Morris, 13th Ed., para.9-025, the concept of a presumption that foreign law is the same as English law "[gives] rise to uneasiness". More precisely, the burden of proving foreign law lies on the party who bases his claim on it. I would anyway wish to consider in detail the operation of this principle in the case of a "foreign law" contract (such as the present) where the claimant seeks to invoke a specific English statute and seeks then to place the burden on the defendant to plead and to prove that the relevant foreign law is different. But in any event, this issue only arose in the course of closing submissions and in my judgment Thomson must be entitled to a proper opportunity to respond (to include further amended pleadings as needed), if it is necessary to determine the issue. And this is precisely what Mr Wardell says in section 4 of his written submissions - although I would not necessarily accept the precise sequence of events set out in his paragraph 4.2.4.
- In the event, I do not consider it necessary to determine the issue, given my conclusion on the single further issue that remains – as now follows. I therefore say nothing further about it.
- Latent defect
I repeat once more the relevant passage in clause 7:
"We will not make any payment if your injury, illness or death was caused by an event or circumstances which that person could not have predicted or avoided even if they had taken all necessary and due care."
- In their written submissions, both counsel effectively identified the same passages from the expert reports: Mr Cannell's first report at paragraphs 6.14 and 6.18 [204]; the experts' joint statement in answer to question 5 [249]. In addition, Mr Wardell would identify Mr Cannell's second report at paragraph 6.4 [229], but I would not read that passage as necessarily adding anything; the words "It is not possible to determine the deficiencies …" (emphasis added) render the content of the paragraph ambiguous, given that Mr Cannell had just identified specific deficiencies in the same report.
- These passages present obvious difficulty to Mr Dingemans' case. Nor were they the subject of any cross-examination in the course of trial. In their written submissions, Mr Dingemans and Mr Dignum (junior counsel) request an opportunity to adduce further evidence on the point. However, it has to be said that the issue was expressly pleaded at paragraph 14 of the Re-Amended Defence [17E]. I also now go on to consider whether the evidence that I have just identified allows any doubt as to the correct answer.
- Faced with a joint statement that the defect would not have been detectable as part of a routine visual inspection, Mr Dingemans and Mr Dignum must allege that an obligation arose at some stage to perform more than a mere routine inspection. In their written submissions, they do this in the following fashion:
(1) Tiami Cruises Limited should have "had the mast inspected" before leasing/chartering Tiami to CML. I remind myself that this was back in 1997, when Tiami was 1 year old. It also amounts to an allegation of breach of an additional duty – beyond the duties pleaded and now identified at paragraph 84 above.
(2) It is alleged that a reasonably prudent yacht surveyor would then have detected the defect – on the basis of what Mr Cannell says at paragraph 6.14 of his first report [204].
- I have to say that any obligation to inspect back in 1997 would more naturally have fallen on CML as charterer, rather than Tiami Cruises Limited as owner giving up possession. But that distinction does not matter – save to observe that no allegation of want of maintenance has ever been made against CML. It is somewhat paradoxical that it might now be alleged that CML should have undertaken a major inspection in 1997.
- Be that as it may, I can see no warrant for imposing onto either CML or Tiami Cruises Limited any obligation to undertake such a major inspection. The clear inference is that Tiami had been operating without problem ever since its date of construction and there is no suggestion of any relevant defect (or symptom) at any time. I repeat the fact that there has never been any allegation on behalf of Mrs Jay of any want of maintenance.
- Moreover, Mr Cannell at para.6.14 only ever said that "a skilled yacht surveyor might possibly be able to detect a fault in the mast by careful inspection and tap sounding …". And indeed the same paragraph goes on heavily to qualify even that possibility. Mr Cannell had not seen the mast at this stage. In those circumstances, he went on to consider the photographs taken by Captain Biles, at a time when Captain Biles had inspected the mast and had discovered internal defects. Mr Cannell continued "… the references to poor adhesion of the internal glass laminate are not possible to detect prior to the mast failure as they are inside the mast. These alleged defects are latent defects" (emphasis added).
- However one reads this paragraph, it seems to me that it provides no basis whatever for the contention that even a skilled yacht surveyor would probably have detected these defects, even if engaged to undertake a major survey of Tiami. Nor, applying a degree of common-sense when looking at the various photographs of the broken mast can I conceive of any contrary evidence.
- In all the circumstances, I rule that there is no proper basis to allow this issue to be re-opened for further evidence. For all the above reasons, I consider that the answer is inevitable, namely that Mrs Jay's injury was caused by an event which the relevant party could not have predicted or avoided even if it had taken all necessary and due care.
- In those circumstances, there is no liability of Thomson under clause 7, even on the assumption that the word "duties" in that clause does include strict contractual duties. If that assumption is removed, it is clear from all the above that was no want of care by any relevant party; accordingly, a much shorter route would lead to the same conclusion.
- For the sake of completeness, I add that, had I been persuaded that this issue of latent defect should have been re-opened for further evidence, I would undoubtedly have been obliged also to re-open the issue of Barbados law.
Conclusion
- It follows from all the above that the claim must be dismissed.
- I reach this conclusion with substantial regret. I repeat the fact that Mrs Jay was the wholly innocent victim of an accident caused by negligence and that she suffered serious injury as a result. But the negligence was that of the original manufacturers, Gold Coast. Thomson voluntarily extended its contractual liability so as to cover many events that might have occurred in the course of the holiday and the excursion. However, it did not extend its liability as far back as the original manufacturer. And it has not been contended that statute or regulation acts so as to extend the responsibility of Thomson further.
Adrian Palmer Q.C.
23 November 2006
