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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Mayban General Assurance BHD & Ors v Alstom Power Plants Ltd & Anor [2004] EWHC 1038 (Comm) (07 May 2004)
URL: http://www.bailii.org/ew/cases/EWHC/Comm/2004/1038.html
Cite as: [2004] 2 Lloyd's Rep 609, [2004] 2 CLC 682, [2005] Lloyd's Rep IR 18, [2004] EWHC 1038 (Comm)

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Neutral Citation Number: [2004] EWHC 1038 (Comm)
Case No: 2002 Folio 1267

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
7th May 2004

B e f o r e :

THE HONOURABLE MR. JUSTICE MOORE-BICK
____________________

Between:
(1) MAYBAN GENERAL ASSURANCE BHD
(2) AMI INSURANS BHD
(3) MALAYSIAN NATIONAL INSURANCE BHD
(4) SYARIKAT TAKAFUL MALAYSIA BHD



Claimants
- and -

(1) ALSTOM POWER PLANTS LIMITED
(2) ALSTOM T & D LIMITED

Defendants

____________________

Mr. Luke Parsons Q.C. (instructed by Clyde & Co.) for the claimants
Mr. Roger Stewart Q.C. (instructed by Masons) for the defendants

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr. Justice Moore-Bick :
  1. On 25th January 2002 a large electrical transformer was shipped on board the vessel Eliane Trader at Ellesmere Port by the first defendant, Alstom Power Plants Ltd, for carriage to Rotterdam on the first stage of its journey by sea to Malaysia. The transformer had been manufactured by the second defendants, Alstom T & D Ltd ("Alstom"), as part of the equipment required for a new power station being built at Manjung. At Rotterdam it was transferred to a container vessel, the P & O Nedlloyd Southampton on which it was carried to Lumut before being carried on to the construction site at Manjung. When it arrived at the site it was found to be seriously damaged and had to be returned to Alstom's works for repairs. The cost of those repairs and associated expenses was in excess of £1 million. Alstom was convinced that the damage to the transformer had been caused by some unusual event in the course of the voyage from the United Kingdom to Malaysia and made a claim under the policy of insurance covering equipment being supplied to the power station. However, the insurers considered that the damage had resulted from the transformer's inability to withstand the ordinary incidents of carriage by sea from the United Kingdom to Malaysia during the winter months. They therefore rejected the claim on the grounds that the loss was caused by inherent vice and brought these proceedings seeking a declaration that they were not liable to indemnify Alstom in respect of it.
  2. The transformer
  3. The transformer was the second of three 3-phase 5 limb transformers designed and manufactured by Alstom specifically for the Manjung project. It was made up of five vertical limbs joined at the top by a steel beam known as a 'yoke', all contained within an enclosed bell tank. The three central limbs each consisted of a steel core which carried the copper windings necessary to convert the low voltage supply from the power station generators into a high voltage supply necessary for the efficient distribution of electricity by power transmission cables. The additional limb at each end (together known as the "fifth limbs") consisted of a steel core without any windings, the purpose of these limbs being to contain the magnetic flux generated within the transformer.
  4. Each of the steel cores was of a laminated construction, that is, it was composed of a very large number of thin vertical sheets of steel held tightly together by horizontal steel bands. The yoke was of a similar laminated construction with its plates running longitudinally. The joint between each limb and the yoke took the form of a classic mitre joint, the alternate laminations of the two sections being offset so as to produce something akin to a dovetail joint. At the joint the alternate laminations of the fifth limb and the yoke overlapped by about 20 cm. which, as a result of the pressure exerted by the bands holding the laminations together and the other securing arrangements designed to hold the assembly in place, provided the friction by which the joint was maintained. The bottom of each limb was secured to the base plate of the tank and steel plates known as 'flitch plates' helped to hold each of the cores and the yoke in place. Finally, a steel girder ran along the top of the yoke to which were attached tie bolts securing the whole assembly in place. The base plate formed part of the tank which was intended to be filled with coolant when the transformer was in operation, but which remained empty for the purposes of transportation to Malaysia.
  5. The insurance
  6. The transformer was insured in the course of transit under a project policy issued by the defendants in favour of the project owner, TNB Janamanjung Sdn Bhd, the project engineers, the main contractors, and all sub-contractors and suppliers of equipment while carrying out work associated with the project. The policy contained a separate section relating to marine cargo under which materials and equipment destined for the project were covered against all risks of loss and damage
  7. " from the commencement of movement within supplier's premises anywhere in the world, which shall include while at packing yard, to final destination anywhere in Malaysia."
  8. Clause 10 provided as follows:
  9. " [T]his insurance shall in no case be deemed to extend to cover loss damage or expense proximately caused by delay inherent vice or nature of the subject matter insured."
  10. The policy also incorporated the Institute Cargo Clauses (A) CL-252 (Jan.1.1982) which contain the following general exclusions clause:
  11. " 4 In no case shall this insurance cover
    4.3 Loss, damage or expense caused by insufficiency or unsuitability of packing or preparation of subject matter insured . . . . .
    4.4 Loss, damage or expense caused by inherent vice or nature of the subject matter insured."
  12. The expression "all risks" is used in policies of insurance as a convenient way of encompassing all insurable risks to which the property in question may be exposed without attempting to identify them individually. The contract nonetheless remains one under which the insurer accepts the risk of loss occurring through the occurrence of some peril acting on the property insured. A number of consequences follow from this. The first is that in order to recover under the policy the insured must prove that the loss was caused by an accident or casualty of some kind. Insurers accept the risk, but not the certainty, of loss. The second is that although the insured must prove a loss by an accident of some kind, it is not necessary for him to go further and establish the exact nature of the accident by which it occurred. The third is that the policy does not cover the insured against loss due to wear and tear or the inherent vice of the thing insured, whether that loss was bound to occur or was fortuitous in the sense that its occurrence depended on the particular circumstances to which the goods happened to be exposed in the course of the voyage. These principles emerge clearly from the decision of the House of Lords in British and Foreign Marine Insurance Co. Ltd v Gaunt [1921] 2 A.C. 41. The case concerned bales of wool insured against all risks in transit from sheep's back in Patagonia to Punta Arenas en route to Europe. Some bales were damaged by water prior to loading on the ocean vessel and the question arose whether the insured could show that there had been a loss by a casualty. There was little evidence of the manner in which wetting had occurred, but that did not prevent the insured from succeeding. Lord Birkenhead put the matter in this way at page 47 in a passage on which Mr. Stewart understandably placed some reliance:
  13. "The damage proved was such as did not occur and could not be expected to occur in the course of a normal transit. The inference remains, that it was due to some abnormal circumstance, some accident or casualty. We are, of course, to give effect to the rule that the plaintiff must establish his case, that he must show that the loss comes within the terms of his policies; but where all risks are covered by the policy and not merely risks of a specified class or classes, the plaintiff discharges his special onus when he has proved that the loss was caused by some event covered by the general expression, and he is not bound to go further and prove the exact nature of the accident or casualty which, in fact, occasioned his loss "
  14. Lord Sumner at page 57 said this:
  15. " "All risks" has the same effect as if all insurable risks were separately enumerated; for example, it includes the risk that when it happens to be raining the men who ought to use the tarpaulins to protect the wool may happen to be neglecting their duty. This concurrence is fortuitous; it is also the cause of the loss by wetting. It appears to be what happened. For wool to get wet in the rain is a casualty, though not a grave one; it is not a thing intended but is accidental; it is something which injures the wool from without; it does not develop from within. It would not happen at all if the men employed attended to their duty.
    There are, of course, limits to "all risks." They are risks and risks insured against. Accordingly the expression does not cover inherent vice or mere wear and tear or British capture. It covers a risk, not a certainty; it is something, which happens to the subject-matter from without, not the natural behaviour of that subject-matter, being what it is, in the circumstances under which it is carried."
  16. In Soya G.m.b.H. Mainz K.G. v White [1983] 1 Lloyd's Rep. 122 Lord Diplock, commenting on section 55(2)(c) of the Marine Insurance Act 1906 (which uses language very similar to that of clause 4.4 of the Institute Cargo Clauses), said that the risk of loss by inherent vice means
  17. "the risk of deterioration of the goods shipped as a result of their natural behaviour in the ordinary course of the contemplated voyage without the intervention of any fortuitous external accident or casualty".
    The voyage
  18. The Eliane Trader is a small vessel built in 1978, about 80 metres in length with a beam of about 10 metres. When built she was capable of 10 knots, but by the time of the voyage with which I am concerned she was probably not capable of achieving much more than 9 knots, and perhaps somewhat less. The transformer was carried by road to Ellesmere Port where it was loaded on board the vessel on 25th January 2002 under the supervision of two cargo surveyors, Mr. John Tomlinson representing the interests of the receivers and their insurers and Mr. Bob Horjus representing the interests of Alstom, acting in conjunction with the master. The transformer was stowed longitudinally on wooden dunnage laid on the vessel's tanktops and was secured by chains and wooden shoring to prevent any movement. It was a large piece of equipment weighing about 350 metric tons in all and so had to be stowed and secured with care. Heavy weather with gale force winds was forecast for the voyage to Rotterdam, but all concerned were satisfied that the securing arrangements were adequate to prevent any movement of the transformer during the voyage and in the event they were proved correct because there is no evidence that any movement of the stow occurred.
  19. There was some discussion between Mr. Tomlinson, Mr. Horjus and the master about the conditions likely to be encountered on the voyage and the possible risk of internal damage to the transformer as a result of the rolling of the vessel. Mr. Horjus, who had supervised the loading of many transformers, said that it was his practice in such cases to give the master some information about their construction and to warn him about the risk of internal damage from excessive rolling. Exactly what he had in mind by "excessive" rolling, however, is unclear. In his report Mr. Tomlinson said that Mr. Horjus had referred to a risk of damage if the transformer was exposed to a roll of over 35o, but Mr. Horjus said that he had not mentioned any particular figure and did not know what the safe maximum angle of roll for a transformer was. The fact that the figure of 35o found its way into Mr. Tomlinson's report suggests that Mr. Horjus must have mentioned it at some point, but nothing turns on it. It would be very unusual indeed for the vessel to roll even to 30o, so I should not have expected the master to be unduly concerned if warned that there might be damage if the vessel rolled to 35o, and there is no evidence that she did so in the course of this voyage. Nonetheless, I am satisfied that Mr. Horjus did express some concern about the effects of the weather and that someone suggested that after leaving the Mersey the vessel might shelter off Anglesey until the gale abated. Again, that is something that is mentioned in Mr. Tomlinson's report, but I do not think it can have amounted to anything more than a general discussion with the master of the various options available to him. The fact is that the cargo was stowed and secured to the satisfaction of the master and the two surveyors, all of whom were aware that the vessel could expect to encounter force 8 winds early in the course of the passage to Rotterdam. If a cargo requires special care, it is usual for the shippers to give the master or chief officer instructions in writing explaining exactly what is required. In the absence of any such instructions the master is entitled to assume that the cargo can withstand the ordinary incidents of the voyage without the need for any unusual precautions.
  20. The vessel sailed from Ellesmere Port during the evening of 25th January. In the event the conditions she encountered on leaving the Mersey were not particularly severe and the master did not consider that it was necessary to take shelter off Anglesey. As the vessel began her passage through St George's Channel conditions deteriorated and she became exposed to winds and seas from the south west. The ship's log records force 8 winds from 0800 on 26th January easing to force 7 by midnight and force 6 by 0800 on 27th. Thereafter the log records that the wind began to pick up again, rising to force 8 by noon on 27th January when the vessel was off Milford Haven. It is recorded as rising to force 9 by 1400 and as remaining at or about that level until 2000 on 28th January when it is recorded as having fallen to force 7.
  21. I was assisted by the evidence of two meteorological experts, Mr. Howard Lawes and Mr. John Blackwood, each of whom had considered data drawn from other sources in order to produce an independent assessment of the sea conditions likely to have been encountered by the vessel during her passage through St George's Channel and the Celtic Sea. Their assessments broadly corresponded with each other and with conditions recorded in the vessel's log, although in the light of their evidence I would approach the entry recording force 9 winds with some caution. The experts were able to agree that throughout the period from 1200 on 27th January to 1500 on 28th January the vessel probably encountered waves in excess of 6 metres and that from 1800 on 27th January to 1200 on 28th January significant wave heights were at or above 6.5 metres.
  22. The vessel's log does not contain any description of how she responded to these conditions, but I have little doubt that she was pitching and rolling heavily. Between noon and midnight on 27th January she steered a course almost due south keeping the wind and sea fine on her starboard bow. At midnight she altered course and steered due east for two hours before resuming a southerly course at 0200 on 28th. At noon on 28th January she altered course to the east again and remained on that heading for two hours before returning almost to her original course to take her through the inner separation zone between the Isles of Scilly and Land's End.
  23. The logs contain no explanation for the two changes of course to the east, but I think it likely that from Milford Haven to Land's End the master was deliberately steering a more westerly course than would otherwise have been desirable in order to keep the vessel's head as far as possible into the wind and sea. That meant that he had to adjust his position to take the vessel to the east if he wanted to enter the inner separation zone around the Isles of Scilly. The end result was that the vessel made very slow progress indeed during this stage of the passage, even making a generous allowance for a general reduction in performance due to her age. However, although it is interesting to reconstruct the vessel's movements from the log and to try to understand why she made those changes of course, it does not contribute very much to the solution of the present problem beyond reinforcing the conclusion that conditions were sufficiently uncomfortable to persuade the master to adopt courses designed to minimise as far as possible the movement of the vessel. As Mr. Stewart fairly accepted, there are no grounds for criticising either the master's decision to leave Ellesmere Port on 25th January or the manner in which he responded to the conditions the vessel encountered in the course of the passage to Rotterdam.
  24. The transformer left Rotterdam on board the P & O Nedlloyd Southampton, a large container vessel, on 1st February 2002, this time stowed athwartships. From about noon on 4th February when the vessel was in the Western Approaches the wind began to pick up from the south west. According to the vessel's log it rose to force 8 by 1400 and increasing to force 10 by 1600. The officer of the watch recorded that the vessel was rolling and pitching in very rough seas. The wind had dropped to force 7-8 by 1800 and remained at that level until about 2200 by which time it had fallen to force 6-7. However, it rose again to force 7-8 by 0200 on 5th February and to force 8-9 by 1000, remaining at or around force 8 until the early evening. Again, there are entries showing the vessel pitching, moderately and at times heavily. That was apparently the only significant period of adverse weather encountered on this leg of the voyage.
  25. The mechanism of failure
  26. When the transformer was inspected on arrival at Manjung the plates forming the joints between the fifth limbs and the yoke at either end of the assembly were found to have separated allowing the limbs themselves to become distorted. There was also evidence of movement between the laminations of the cores in the form of abrasion to the insulation material, but there was no apparent damage to the core plates themselves.
  27. The witnesses who were called to explain the mechanical engineering aspects of transformer design, Professor Dennis Allan and Mr. James Yare, were both of the view that the nature of the damage suggested that it had been caused progressively by the application of large forces over a prolonged period of time rather than by a single catastrophic event. The abrasion of insulation materials is entirely consistent with that conclusion, as is the separation of the plates forming the mitre joints between the unwound fifth limbs and the yoke. There is nothing to suggest that the transformer was subjected to any significant forces other than those it encountered through the movement of the carrying vessels on its voyage to the Far East and I do not find it difficult to accept that a joint formed by a large number of overlapping plates should flex and begin to separate as a result of the forces imparted by the motion of a vessel in heavy seas. I am satisfied, therefore, that the damage was caused by the prolonged 'working' of the joints brought about by the motion of the vessel in which the transformer was being carried.
  28. Was the loss proximately caused by an external fortuitous event?
  29. In many cases the ability of the goods to withstand the incidents of the voyage will depend on the extent to which they are protected by packing. This is a matter which is expressly covered by clause 4.3 of the Institute Cargo Clauses, but inadequate packing, where packing is required to enable the goods to withstand the ordinary incidents of the voyage, can properly be regarded as an aspect of inherent vice. The insurer is entitled to assume that the goods as presented for shipment are packed in a way that will enable them to withstand the ordinary incidents of carriage and, unless he expressly agrees otherwise, does not accept the risk of loss caused by inadequate packing. For some kinds of goods packing may extend to bracing necessary to prevent the movement of internal parts.
  30. It was not suggested that damage during the course of the voyage was inevitable, and indeed such evidence as there is of previous successful shipments of similar kinds of transformers makes it clear that it was not, but it does not follow that the damage was proximately caused by an external fortuitous event. The point is well illustrated by the case of T. M. Noten B.V. v Harding [1990] 2 Lloyd's Rep. 283 which concerned a consignment of leather gloves damaged by moisture that had evaporated from the goods and condensed on the vessel's steelwork before dropping back onto them causing them to become mouldy and mildewed. Damage caused in that way was not inevitable, as previous successful shipments of similar goods demonstrated, but when it did occur it was properly to be regarded as having been caused by the nature of the goods themselves rather than by an external cause. The case also provides a useful reminder that issues of causation should normally be determined by applying common sense rather than too refined an analysis.
  31. It was common ground that the immediate cause of the damage to the transformer in the present case was the violent movement of the vessel due to the actions of the wind and sea. These in themselves were certainly events of a fortuitous nature and they were external to the cargo, but were they the real cause of the loss? The action of the winds and waves is, of course, an inevitable incident of any voyage and is therefore a hazard to which all goods carried by sea are necessarily exposed. Goods tendered for shipment must therefore be capable of withstanding the forces that they can ordinarily be expected to encounter in the course of the voyage and these may vary greatly depending on the route and the time of year. In a case such as the present, therefore, the competing causes, namely, perils of the sea and inherent vice, are to a large extent opposite sides of the same coin. If the conditions encountered by the vessel were more severe than could reasonably have been expected, it is likely that the loss will have been caused by perils of the sea (though even then there might be evidence that the goods would have suffered the same degree of damage under normal conditions). If, however, the conditions encountered by the vessel were no more severe than could reasonably have been expected, the conclusion must be that the real cause of the loss was the inherent inability of the goods to withstand the ordinary incidents of the voyage.
  32. The mechanism of failure proposed by Prof. Allan involved a progressive loosening of each of the mitre joints until the stage was reached at which a pressboard packing piece became dislodged, thereby seriously weakening the integrity of the joint as a whole and allowing the failure to accelerate. I find that a persuasive explanation which I am happy to accept, but it still leaves open the question whether the damage was caused by an unusual event or was simply the result of one episode, or a series of episodes, of bad weather of a kind that might ordinarily be expected to occur in the course of such a voyage at that time of year.
  33. Were the conditions encountered by the vessel unusual?
  34. Alstom has a long history of manufacturing transformers with unwound outer limbs of the kind with which this case is concerned and many of them have been transported by sea to destinations in this country and abroad without loss. Alstom's Chief of Mechanical Development, Dr. Boroomand, produced a schedule identifying over 300 transformers that had been transported by sea between 1960 and early 2002, none of which suffered loss or damage. Evidence of that kind goes some way towards showing that something unusual happened on this occasion, but it has to be approached with caution for the reasons pointed out by Bingham L.J. in Noten v Harding. In the present case Alstom was unable to identify the time of year at which any of the shipments prior to November 1992 were made which inevitably deprives them of much of their evidential value. Of those for which the month of shipment can be identified, a relatively small number, about 15 between November 1992 and February 2002, appear to have been shipped between November and February when the most severe weather can be expected and even in those cases there is no record of the weather they actually encountered. Not all were shipped in vessels similar to the Eliane Trader, nor did they all go on the same voyage. The value of the evidence is therefore limited. However, it is interesting to note that neither expert was aware of this kind of damage having been sustained in the past. Prof. Allan, who has had extensive involvement in the design of this kind of equipment and has been a member of various international committees dealing with the formulation of design standards, said that damage of the kind experienced in this case was unknown in the industry, despite the fact that transformers are routinely transported by sea.
  35. The transformer in this case was larger than any comparable unit previously manufactured by Alstom, but neither of the experts thought that it was likely for that reason to be more prone to damage and I am satisfied that the explanation for the loss does not lie simply in its greater size. Nor is there any reason to think that Alstom's design is less robust than that of other manufacturers. On the contrary, both Prof. Allan and Mr. Yare considered that it was as sound as any they had come across. So, insofar as the experience of shipping this transformer differs from the general experience of the industry, it cannot be attributed to obvious flaws in its design and tends to suggest that something unusual may have occurred in the present case.
  36. In the course of her passage from Ellesmere Port to Land's End the Eliane Trader was subjected to gale force winds for a period of about 16 hours on 26th January as she entered St George's Channel and for a further period of about 30 hours from about the time she passed Milford Haven until shortly before she rounded Land's End. On each occasion the wind was from the south west, or thereabouts. However, as Mr. Stewart accepted, gales and heavy seas from the south west are a well-known feature of these waters during the winter months. A vessel making this passage might well not encounter such conditions, of course, but they occur with sufficient frequency to be regarded as one of the ordinary risks of the voyage and should not pose any danger to a well-found ship such as the Eliane Trader. The expert mariners called to give evidence, Capt. Giles and Mr. Cushing, agreed that vessels of this size and type habitually go to sea in force 8 conditions. Mr. Cushing also accepted that cargo could and should be stowed and secured in such a way as would prevent movement even under prolonged exposure to such conditions. The experts agreed that the conditions of wind and sea encountered by the vessel on 27th and 28th January must have caused her to pitch and roll heavily in a way that set up a 'corkscrewing' motion, but there is nothing to suggest that that was anything other than the response to be expected of any similar vessel under those conditions.
  37. All this suggests that the conditions encountered by the vessel on this passage were neither extreme nor even unusual in the sense that they are encountered often enough for mariners to regard them as a normal hazard. Mr. Stewart accepted that, but he submitted that the conditions that occurred in the present case were extraordinary because they persisted for much longer without interruption than would ordinarily be the case. He submitted that it was the very fact that they continued for so long that caused the damage.
  38. For the purposes of these proceedings Mr. Lawes and Mr. Blackwood carried out investigations with a view to establishing the frequency of spells during which significant wave heights in the western approaches to St George's Channel and the Bristol Channel exceed 6 metres for more than 24 hours. Mr. Blackwood approached the task in two ways. The first was to carry out a statistical analysis of data derived from ships' observations and satellite observations. The second was to obtain information from the wave model database maintained by the Met. Office. His analysis of the data derived from ships' and satellite observations indicated that a spell of 24 hours or more of significant wave heights of over 6 metres can be expected to occur in about one January in three. Although the data from these two sources produced slightly different results, they corresponded to a significant extent. The information obtained from the Met. Office computer model indicated that the incidence of such spells was about twice as great.
  39. The only question on which the experts were divided was how much, if any, weight was to be placed on the information derived from the different sources, in particular that obtained from the Met. Office computer model. Mr. Blackwood considered that the results based on satellite observations were likely to be most reliable because they corresponded best with observations that had been made in the past from the Sevenstones light vessel which used to be moored between Land's End and the Isles of Scilly. He was inclined to discard the results based on ships' observations because they did not correspond as well with the observations made from the Sevenstones light ship, although they were broadly in agreement with those obtained using the satellite data. He was very doubtful about the information obtained from the Met. Office because it differed so much from the results obtained by the statistical method. Mr. Lawes, on the other hand, thought that the Met. Office information could not be disregarded altogether and ought to be taken into account in reaching any final conclusion.
  40. Although Mr. Blackwood could provide persuasive reasons for preferring the results derived by the statistical method based on satellite data to those derived from other sources, he accepted that all the results were subject to a margin of error and that the right answer might lie somewhere between that produced by the statistical method and that obtained from the Met. Office computer model. Mr. Lawes said much the same. His view was that all the results were subject to a degree of uncertainty and that one should make use of data from as many sources as possible to have confidence in the overall conclusion. In my view that is a sound approach and I think it would be inappropriate to disregard the Met. Office information entirely, though the fact that the results based on ships' and satellite observations support each other suggests that they should be given greater weight. Mr. Lawes thought that the Met. Office information was supported by similar information derived from a different computer model of wave frequency distribution at a sea location about 45 miles to the south west of that on which the Met. Office model was based, but in Mr. Blackwood's view that only added to the doubts about its accuracy because of the rate at which the wave climate deteriorates in that sea area as one moves further west. In the end I have come to the conclusion based on the evidence as a whole that spells of weather during which the significant wave height is in excess of 6 metres for 24 hours or more occur in January on average one year in every 2.5 years. Moreover, the chances of any particular vessel being exposed to the whole of such a spell will depend on where she is in the course of the passage when she encounters it. Basing myself on figures agreed between Mr. Lawes and Mr. Blackwood I am satisfied that on the basis of a random entry into the passage from Milford Haven to Land's End a vessel would expect to encounter similar conditions about once in every 8.5 years.
  41. However, although this kind of statistical analysis is helpful in improving one's understanding of the general nature of the events in question, I do not think that it provides an easy answer to the present problem. The question whether any particular circumstances are or are not to be regarded as an ordinary incident of the voyage cannot be answered simply by reference to an analysis of this kind. The question is essentially one of fact and degree which can only be resolved by reference to commercial experience. Conditions or events which are well known to occur from time to time but which are nonetheless relatively uncommon may well be properly regarded as ordinary incidents of the voyage. I would accept that it is unusual for a vessel making this passage in January to encounter such a long continuous spell of conditions of this kind, but even so, having had the benefit of hearing from Capt. Giles and Mr. Cushing, I do not think that a commercial man with experience of short sea voyages along the west coast of the United Kingdom would regard it as falling outside the range of what could reasonably be expected at that time of year. In other words, he would not regard it as anything other than an ordinary incident of the voyage for which the vessel and cargo ought to be prepared.
  42. The difficulties do not end there, however, because even if it was extraordinary for the vessel to encounter conditions of this kind for 24 hours or more at a stretch in St George's Channel and the approaches to the Bristol Channel, it would not have been at all unusual for the transformer to be exposed to several similar, albeit briefer, spells of bad weather at various stages of its voyage to the Far East. Indeed, in the present case the Eliane Trader herself encountered two spells of force 8 winds before she rounded Land's End and the P & O Nedlloyd Southampton encountered rather more serious conditions in the Western Approaches. The damage in the present case was the result of the prolonged working of the joints between the yoke and the unwound limbs caused by the motion of the vessel, a mechanism that was essentially progressive in nature and depended primarily on the application of certain forces over a period of time. No one suggested that the motion of the vessel on 27th and 28th January was out of the ordinary in any way given the conditions she encountered at the time, but once one accepts that conditions were not in themselves unusual, the question arises whether the transformer was sufficiently robust to withstand the totality of the forces which it might reasonably be expected to encounter during the course of the whole voyage, or whether it could only tolerate a limited amount of this kind of pitching and rolling. The evidence in this case suggests that the joints were liable to begin working loose when subjected to stresses and strains of the kind that could be expected to be encountered in the ordinary course of carriage and that once the integrity of the joints had been compromised the damage would progress whenever the vessel again encountered similar conditions. I think it is likely, therefore, as indeed Prof. Allan was inclined to accept, that the same or similar damage could as easily have occurred if the vessel had encountered two or three shorter spells of similar weather at different stages in the voyage.
  43. Mr. Parsons submitted that force 8 winds, possibly of prolonged duration, are an ordinary incident of any voyage from the United Kingdom to Malaysia in winter months and may occur more than once. Any cargo intended for carriage on such a voyage should therefore be capable of withstanding unlimited periods of bad weather of that kind. That may be putting the matter rather high, but I do not think that 30 hours in total for a voyage of this kind comes near to being extraordinary. A cargo that cannot withstand prolonged exposure to conditions of that kind cannot in my view be regarded as fit for the voyage. The fact that many other transformers of a similar design have been carried without apparent mishap does not enable one to draw the conclusion that something extraordinary happened in this case. It was apparent from Prof. Allan's evidence that a certain degree of damage to the mitre joint between the unwound limbs and the yoke is not fatal because no mechanical stresses are imposed on it in operation and the consequent losses in efficiency may be within acceptable limits. There is no evidence of the extent to which the joints in any other transformers were affected by their experiences in the course of the voyage, but in the light of the evidence that has been given in this case I would not be willing to assume that they were all wholly unaffected.
  44. In the light of the evidence as a whole I am satisfied the loss in the present case was caused by the inability of the transformer to withstand the ordinary conditions of the voyage rather than by the occurrence of conditions which it could not reasonably have been expected to encounter. It follows that the insurers are not liable to indemnify Alstom in respect of the damage it suffered.


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