Lloyd Rep of UMENTS DAVIS by liaoguiguo

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                              DAVIS v STENA LINE LIMITED [2005] EWHC 420 (QB)

                                              QUEEN'S BENCH DIVISION

                                                 [2005] 2 Lloyd's Rep 13

                HEARING-DATES: 22, 23, 24, 25,26, 29, 30 November, 3 December 2004, 17 March
                                                   2005

                                                      17 March 2005

CATCHWORDS:
    Carriage of passengers by sea - Athens Convention - Passenger falling overboard from "ro-ro" ferry and drowning
before being rescued - Whether ferry owners liable.

HEADNOTE:
     At about 1140 on 29 October 2000 Mr Michael Davis fell overboard from the "ro-ro" ferry Koningin Beatrix during
the course of her passage from Rosslare in the Irish Republic to Fishguard in Wales. Mr Davis had been travelling on
the vessel as a passenger, together with his family. Conditions were poor with gale force southwesterly winds and rough
seas. Wave heights were about 4 metres and there was a 1.5 metre swell.
      Koningin Beatrix was a large, high-sided, ferry owned and operated by the defendant (Stena). She had twin screws
and two transverse bow thrusters with controllable pitch. There were three stern doors that were used for loading and
unloading at Rosslare and one bow door that was used for loading and unloading at Fishguard. On each side of the ves-
sel there was a single hull door situated amidships, immediately above the belting (rubbing strake) that ran almost the
full length of the vessel on either side. The door on the starboard side was for bunker access (the bunker door), and the
door on the port side was for pilot access (the pilot door).
     Nobody saw Mr Davis fall overboard. Some passengers saw Mr Davis in the sea shortly afterwards and raised the
alarm. At 1145 the bridge became aware that someone had fallen overboard. Having regard to his position relative to
Koningin Beatrix when he was first spotted in the water, it appeared that Mr Davis had gone overboard from the port
side of the vessel, probably from deck 8.
     It was very windy and there was a big sea running. There was a considerable amount of motion and it was difficult
to walk about. Although it was not raining at the time, the decks were wet from spray and spindrift. It was possible that
there were areas on deck 8 that required repainting with non-slip paint and that they were wet and slippery as a result. It
was also possible that an access gates in the safety rails was left open or its locking pin removed by the curious or mi-
schievous. Although the police had checked all the outside decks after the vessel arrived at Fishguard and found nothing
untoward, it was possible that a member of the crew had by then closed any gate found open without appreciating its
significance.
     The time that Mr Davis went overboard coincided with the time that Koningin Beatrix carried out a 30[#176] turn
to starboard in order to avoid a container vessel, Celtic King, that was on a crossing course, about 1.5 miles off the port
bow and on a constant bearing. The turn to starboard caused Koningin Beatrix to heel to port 4[#176] to 5[#176] and
there was an increase in the vessel's roll as the result of the seas coming round on to her starboard side.
     At about 1145, as soon as the man overboard information had been communicated to the bridge, the officer of the
watch commenced to carry out Stena's current operational procedures for a man overboard. He released a lifebuoy and
started to turn the vessel around to look for Mr Davis, using the approved procedure of a "Williamson turn". At that
time, Stena's Standing Orders and Operational Procedures Manual contained no guidance and no specific operational
procedure for rescuing a man overboard in the event that it was not possible to launch the vessel's own rescue boat.
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                                                [2005] 2 Lloyd's Rep 13


     Whilst the Williamson turn was being carried out, the master and other officers joined the officer of the watch on
the bridge, and the master assumed responsibility for conducting and co-ordinating the necessary search and rescue op-
eration. A broadcast was made on VHF Channel 16 at 1150 using an emergency PAN PAN signal that there was a man
overboard. When the Williamson turn was completed, at about 1150, the master took over the con and assumed direct
responsibility for manoeuvring the ship. The officer of the watch then acted as lookout, together with several ratings,
making a total of about ten on the bridge. Other ratings were posted to the outside decks to act as lookouts.
     As a result of the PAN PAN broadcast, the Rosslare RNLI lifeboat was launched at 1208 and two rescue helicop-
ters were scrambled from Dublin at 1214. On hearing the PAN PAN, the nearby Celtic King slowed down and joined in
the search for Mr Davis. Shortly afterwards, Celtic King also began to prepare her fast rescue boat for launching, and
the rescue boat crew began donning their immersion suits.
     Nobody on the bridge of Koningin Beatrix believed that there was much chance of finding the man overboard, still
less of rescuing him alive. Not only were conditions such that it would be very difficult to see or find him, but nobody
thought that he would survive for very long in such rough cold seas (sea temperature 12[#176] celsius). Until Mr Davis
was actually spotted, discussions on the bridge were solely concerned with conducting the search, and no consideration
was given as to how Mr Davis was to be rescued if and when he was found alive.
    In fact, Mr Davis, who was well built and a very strong swimmer, was still alive and in good condition when a
member of Celtic King's crew first spotted him shortly before 1230. The information was passed to Koningin Beatrix.
By that time, Celtic King fast rescue boat was ready to be launched.
     At about 1229 Koningin Beatrix's bridge team had Mr Davis in sight. When first seen from the bridge of Koningin
Beatrix, Mr Davis was about 350 to 400 Davis v Stena Line Limited QBD 14 metres away from the ship. At 1229 the
ship was slowly turning to port, and the wind was on Koningin Beatrix's port bow.
    After Mr Davis was spotted, the master decided to go ahead and try to rescue him by recovering him to the ferry.
He concluded that the weather conditions were such that it was not possible to launch either of Koningin Beatrix's res-
cue boats, and he considered that the only viable option was to try to recover Mr Davis through the bunker door. He
proceeded to carry out his rescue plan by manoeuvring Koningin Beatrix so as to bring her as close to Mr Davis as
possible and as quickly as possible.
     In the event, the bunker door was not opened, because the rescue team were informed that the man overboard was
by then on the port side of the vessel. The rescue team therefore moved across to the starboard side and opened the pilot
door. However, because the door was 10 feet above the waterline, there was belting around the ship, the sea was very
rough, and the doorway was only wide enough for one man to stand in the doorway at once, the only way in which the
casualty could be got on board would have been for a member of the crew to don an immersion suit, climb down the
pilot ladder and attempt to pull the casualty back on board.
     In his final approach, the master manoeuvred the vessel so that Mr Davis was very close to the ship's starboard side
whilst the vessel still had some way on. The vessel's way was taken off by going astern, which brought Mr Davis up
towards the starboard bow. The master shut down the bow thrusters, with the result that the vessel developed a swing to
starboard as Mr Davis disappeared from view under the flare of the bow at about 1234. When Mr Davis came into view
again at about 1240 he was on the port side of the vessel, face down in the water and apparently lifeless. Once it was
apparent that Mr Davis was lifeless, the attempt to rescue him through the pilot door was abandoned, and the master of
Celtic King decided that he was no longer prepared to risk his crew by launching his fast rescue boat.
    At about 1254 one of the rescue helicopters arrived on the scene. By 1300 the helicopter's winch man had recov-
ered Mr Davis's body from the sea. At 1315, the helicopter landed at Wexford hospital with Mr Davis's body on board.
At 1605, Mr Davis was formally pronounced dead, following an unsuccessful attempt at resuscitation.
    Mr Davis's widow brought a claim against Stena under the Fatal Accidents Act 1976 and the Law Reform (Miscel-
laneous Provisions) Act 1934.
     Travel by ferry from the Republic of Ireland to the United Kingdom was governed by the Athens Convention ("the
Convention"), as set out in Schedule 6 to the Merchant Shipping Act 1995. Notwithstanding the fact that Mr Davis was
in the sea, rather than on board Koningin Beatrix, when he met his death, it was common ground that he died during the
course of carriage within the meaning of the Convention, and that, in the circumstances of the case, the liability regime
under article 3 of the Convention was, to all intents, the same as common law negligence. Moreover, Stena conceded
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                                                 [2005] 2 Lloyd's Rep 13


that, having been informed that a man had gone overboard, Stena owed him a duty of care to take reasonable steps to
locate and rescue him.
     Stena asserted inter alia that Mr Davis must have been acting deliberately, recklessly or negligently when he went
overboard and that the claimed loss and damage was therefore wholly caused or contributed to by Mr Davis's own neg-
ligence within the meaning of article 6 of the Convention.
    -Held, by QB (Forbes J), that judgment would be given for the claimant.
     (1) There was no evidence from which it could properly be inferred that Mr Davis deliberately jumped overboard.
Although suicide was no longer a criminal offence, it nonetheless remained a grave allegation and required a degree of
proof proportionate to the seriousness of the allegation. Such proof was lacking in the present case. Moreover, the court
was not persuaded that Mr Davis went over the side as the result of some foolish or reckless action on his part. Such
behaviour would have been entirely out of character and there was no evidence from which it could properly be inferred
that he did behave in such a manner (see para 36).
    -The Delphine [2001] 2 Lloyd's Rep 542 applied.
     (2) Mr Davis did not go overboard as the result of any fault or neglect on his own part. The probability was that
whilst Mr Davis was on the port side external deck 8 the vessel's motion as she turned to starboard caused him to trip or
slip and lose his footing and the 4[#176] to 5[#176] heel of the vessel with its increased roll resulted in him falling
against and over the safety rails and thence overboard. Either that or he fell through the gap in the safety rails that re-
sulted from an access gate having been left open, one that was subsequently closed by a crewmember who did not ap-
preciate its significance (see paras 54 and 55).
     (3) The bridge team of Koningin Beatrix was negligent in failing to give any consideration as to how Mr Davis was
to be rescued if and when he was found alive. Discussions on the bridge had been solely concerned with conducting the
search (see para 60).
      (4) Stena was negligent in that despite what was well known about the near impossibility of rescuing a man over-
board to a high sided vessel like Koningin Beatrix in adverse weather conditions, neither the master nor any of the ves-
sel's officers and crew had received advice or guidance or undergone training with regard to the rescue of a man over-
board in such circumstances. Nor had Stena carried out any appropriate risk assessment of such an emergency. Even if
Stena's shortcomings were representative of the standards of the industry at the time, that did not excuse them (see para
65);
    -Barkway v South Wales Transport Co [1950] 1 All ER 392 applied.
     (5) It should have been obvious to the master that Celtic King's fast rescue boat was in a position to rescue Mr Da-
vis much more quickly and with far less danger to him than the planned retrieval to Koningin Beatrix. All that was re-
quired was for Koningin Beatrix to request Celtic King to go ahead and launch. Had that request been made, the rescue
boat would have been Davis v Stena Line Limited Forbes J QBD 15 launched, and Mr Davis would have been rescued
alive by about 1245. As the on-scene co-ordinator it was for the master of Koningin Beatrix to request Celtic King to
launch her rescue boat. The master was negligent in failing to do so (see paras 72 and 73).
     (6) The master was negligent in failing to prepare a careful and detailed rescue plan or to have such a plan availa-
ble. The rescue plan actually adopted by the master had no hope of success (see para 81).
     (7) Having regard to the other rescue option available to him, the master was negligent in deciding to go ahead im-
mediately with his own plan of rescue, and in failing to consider the quicker and safer option of requesting Celtic King
to launch her fast rescue boat as soon as it was ready (see para 82).
    (8) The master was negligent in deciding to attempt retrieval of Mr Davis through the bunker door in the sea and
weather conditions then prevailing, and with the obvious real risk of waves entering and destabilising the vessel (see
para 84).
    (9) Stena was negligent in failing to have proper regard to the lessons learnt from the Estonia disaster in September
1994 and in failing to adopt the type of approach recommended by Clarke LJ in his Marchioness report published on 2
December 1999 (see para 90).
     (10) The master was negligent in his manoeuvring of the vessel in making his final approach to Mr Davis. Instead
of adopting the standard method of approaching a man in the water by manoeuvring his vessel an appropriate distance
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upwind, stabilising it and then making leeway down towards the casualty, he went dangerously close to Mr Davis too
quickly and had him close alongside whilst the vessel still had way on, making it necessary to go astern. That led to the
need to stop the bow thrusters when Mr Davis came dangerously close to the bow, with the result that control of the
bow was temporarily lost and it swung to starboard very close to and above Mr Davis. The direct consequence of those
negligent manoeuvres was that Mr Davis was faced with a significant change in the sea conditions that he had to cope
with and, as a result, he drowned (see para 99).
    (11) Mr Davis's condition when first spotted was such that he would have survived for long enough to be rescued
by either Celtic King's fast rescue boat or the helicopter. His death by drowning was caused by the change in conditions
with which he was faced as the result of Captain Williams's decision to try and retrieve him to Koningin Beatrix and the
manner in which he put that decision into effect (see para 104).

CASES-REF-TO:
    Aquarius Financial Enterprises Inc and Another v Certain Underwriters at Lloyd's (The Delphine) [2001] 2 Lloyd's
Rep 542; Ariguani, The and Cape St George, The (1940) 66 Ll L Rep 244; Barkway v South Wales Transport Co (HL)
[1950] 1 All ER 392; Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Bywell Castle, The (1879)
4 PD 219; Deeny v Gooda Walker Ltd [1996] LRLR 183; John v Rees [1970] 1 Ch 345; R (Factortame Ltd and Others)
v Secretary of State for Transport, Local Government and the Regions (No 8) (CA) [2002] 3 WLR 1104; Whitehouse v
Jordan (HL) [1981] 1 WLR 246.

INTRODUCTION:
   This was the trial on liability of the action brought by Marian Davis, the widow and administratrix of the estate of
Michael Davis deceased in respect of the death of her late husband who fell overboard from the ferry Koningin Beatrix
owned and operated by the defendant Stena Line Limited.

COUNSEL:
    Simon Kverndal QC and John Russell for the claimant; Michael Tillett QC and Derek O'Sullivan for the defendant

JUDGMENT-READ:
    Thursday, 17 March 2005. The further facts are stated in the judgment of Mr Justice Forbes.

PANEL: Mr Justice Forbes

JUDGMENTBY-1: FORBES J:

JUDGMENT-1:
    FORBES J:
    Introduction
     1. This is a claim brought under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act
1934. At this stage, the proceedings are concerned only with liability. The claimant ("Mrs Davis") is the widow of the
deceased, Michael Davis ("Mr Davis") and she brings this action against the defendant ("Stena") for the benefit of Mr
Davis's dependants and estate. Stena is and was at all material times the owner and operator of Koningin Beatrix, a
"roll-on roll-off" ferry that, at all material times, plied the southern Irish Sea route between Rosslare in the Irish Repub-
lic and Fishguard in Wales. The case is concerned with the circumstances of Mr Davis's death by drowning, having
gone overboard from Koningin Beatrix on the morning of 29 October 2000.The main relevant legal principles
    2. Travel by ferry from the Republic of Ireland to the United Kingdom is governed by the Athens Convention ("the
Convention"), as set out in Schedule 6 to the Merchant Shipping Act 1995. So far as material, Article 1(8) of the Con-
vention provides as follows:
    "carriage" covers the following periods
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                                                   [2005] 2 Lloyd's Rep 13


    (a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin lug-
gage are on board the ship or in the course of embarkation or disembarkation . . .
    3. Article 3 of the Convention deals with the liability of the carrier and provides as follows:
     1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger. . .if
the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neg-
lect of the carrier or of his servants or agents acting within the scope of their employment.
     2. The burden of proving that the incident which caused the loss or damage occurred in the course of carriage, and
the extent of the loss or damage, shall lie with the claimant.
    3. Fault or neglect of the carrier. . .shall be presumed [in circumstances that do not apply in this case]. In all other
cases the burden of proving fault or neglect shall lie with the claimant.
     4. Notwithstanding the fact that Mr Davis was in the sea, rather than on board Koningin Beatrix, when he met his
death, it is now common ground and the parties are agreed that he died during the course of carriage within the meaning
of the Convention and that the Convention therefore applies: see para 10 of the defence and the following passage from
a letter dated 19 October 2004, addressed to Stena's solicitors and written by Holmes Hardingham, the solicitors acting
on behalf of Mrs Davis:
     We have reviewed the applicability of the Athens Convention. We have instructions to confirm that our client ad-
mits and agrees the contention in para 10 of your defence, that notwithstanding that Mr Davis died in the sea, it was still
the case that his death occurred during the course of carriage within the meaning of the Convention.
     In the premises we confirm that our client's claim is pursued under article 3 of the Conven- tion, and is subject to
the provisions of the Convention, and that, accordingly, your client will be entitled to limit its liability pursuant to ar-
ticle 7.
     5. Accordingly, it was the submission of Mr Kverndal QC on behalf of Mrs Davis that the relevant liability regime
to be applied in this case is that set out in article 3 of the Convention, ie that the burden is on the claimant to prove (i)
that there was an "incident" that caused Mr Davis's death and (ii) that the incident was due to the fault or neglect of
Stena or of its servants or agents.
     6. However, it is also common ground that, in the circumstances of this case, the liability regime under article 3 of
the Convention is, to all intents, the same as common law negligence. Furthermore, on behalf of Stena, Mr Tillett QC
conceded that, having been informed that a man had gone overboard, Stena owed him a duty of care to take reasonable
steps to locate and rescue him. As a matter of convenience, therefore, I will deal with the issue of liability in this case by
reference to negligence, rather than the expression "fault or neglect" that is used in article 3 of the Convention.
    7. Article 6 of the Convention makes provision for contributory negligence, as follows:
    If the carrier proves that the death or personal injury to a passenger. . .was caused or contributed to by the fault or
neglect of the passenger, the court seised of the case may exonerate the carrier wholly or partly from his liability in ac-
cordance with the provisions of the law of that court.
     8. In para 12 of its defence, Stena assert that Mr Davis must have been acting deliberately, recklessly or negligently
when he went overboard and that the claimed loss and damage was therefore wholly caused or contributed to by Mr
Davis's own negligence. It was Mr Kverndal's uncontroversial submission that it is clear from the wording of article 6
that the burden of proving contributory negligence is on Stena, just as it would be at common law. Mr Kverndal stressed
(correctly, in my view) that, in this particular case, this meant that Stena is required to establish, on the balance of
probabilities, some negligent act or omission on Mr Davis's part. Mr Kverndal submitted that it is not enough for Stena
to say, in effect, "Well, he must have done something which was reckless or negligent, but we cannot say with any de-
gree of particularity what it was".
     9. As to what is meant by negligence in a case such as the present (which involves the alleged breach of the duty of
care owed to Mr Davis by the owner and operator of a sea-going passenger ferry, its professional master and crew), it is
also common ground that the appropriate starting point for deciding whether Mr Davis's death was caused by the negli-
gence of Stena, its servants or agents is McNair J's well-known direction to the jury in Bolam v Friern Hospital Man-
agement Committee [1957] 1 WLR 582, at page 586:. . .I must tell you what in law we mean by "negligence". In the
ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a rea-
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                                                  [2005] 2 Lloyd's Rep 13


sonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances
would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test
whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in
the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a
Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or
competence, then the test as to whether there has been some negligence or not is not the test of the man on the top of a
Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercis-
ing and professing to have that special skill. A man need not possess the highest expert skill; it is well established law
that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
     10. By way of further elaboration of the standard of skill and care to be exercised by a member of a professional
calling, it seems to me that the judgment of Phillips J (as he then was) in Deeny v Gooda Walker Ltd (1996) LRLR 183
is particularly helpful: see the following passage at page 207:
    In his opening submissions, Mr Eder advanced the following principles which he contended applied in the present
case:
     (1) The standard of skill and care to be exercised by a member of a professional calling is the degree of skill and
care ordinarily exercised by reasonably competent members of that profession or calling.
    (2) The existence of a common practice over an extended period of time by persons habitually engaged in particular
business is strong evidence of what constitutes the exercise of reasonable skill and care.
    (3) In situations which call for the exercise of judgment, the fact that, in retrospect, the choice actually made can be
shown to have turned out badly is not of itself proof of a failure to meet the necessary standard of care.
     (4) The plaintiffs cannot show a failure to meet the required standard of skill and care unless the error on the part of
the underwriter was such that (no) reasonably well informed and competent member of the profession or calling could
have made it.
    I accept each of these propositions. They merit, however a degree of elaboration. The first proposition does not re-
move from the judge the determination of the standard of skill and care that ought properly to be demonstrated. As the
authors of Jackson and Powell on Professional Negligence point out at page 39:
     It is for the court to decide what is meant by "reasonably competent" members of the profession. They may or may
not be equated with practitioners of average competence. . .Suppose a profession collectively adopts extremely lax
standards in some aspect of its work. The court does not regard itself as bound by those standards and will not acquit
practitioners of negligence simply because they have complied with those standards.
   The fourth proposition is based on a passage of the speech of Lord Diplock in Saif Ali v Sidney Mitchell [1980]
AC 198 at page 220:
    No matter what profession it may be, the common law does not impose on those who practice it any liability for
damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no rea-
sonably well informed and competent member of that profession could have made. So too the common law makes al-
lowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon.
     This passage was dealing essentially with the question of judgment. The plaintiffs' case is not that errors of judg-
ment were made, but that judgment was not exercised at all in that the underwriters never acquired the data on which
that judgment might have been based.
    11. In my view, it is worth noting that the expression "an error of judgment" is ambiguous and not very helpful
when it is relied on as encapsulating the defence to a charge of negligence: see the speech of Lord Fraser in Whitehouse
v Jordan [1981] 1 WLR 246, where he said this:
     Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true
position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that
would not have been made by a reasonably competent professional man professing to have the standard and type of skill
that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If on the other hand, it
is an error that such a man, acting with ordinary care, might have made, then it is not negligent.As Mr Kverndal ob-
served, not every error of judgment will constitute negligence, but many errors of judgment will - and for a defendant to
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                                                  [2005] 2 Lloyd's Rep 13


rely on a "mere error of judgment" type of defence, he must show that he actually did exercise some judgment: see
Gooda Walker (supra).
     12. Where the defendant's conduct has occurred in the course of responding to an emergency, that circumstance
will be regarded as relevant to the objective standard of care required. This straightforward commonsense proposition is
sometimes referred to as the rule in The Bywell Castle (1879) 4 PD 219. However, the emergency or the "sudden se-
rious difficulty" in question must be such that the defendant is faced with the need to make a true "agony of the mo-
ment" decision: see The Ariguani and The Cape St George (1940) 66 Ll L Rep 244. Moreover, an "agony of the mo-
ment" defence will not avail a defendant who has been responsible for creating the dilemma in the first place: see John v
Rees [1970] 1 Ch 345, per Megarry J at page 384.
    The claimant's expert evidence
    13. Having regard to the issues raised by the case, both parties called expert evidence with regard to mari-
time/seamanship matters and survival. On maritime/seamanship matters, the claimant's expert witness was Captain
Mark Jubb (Captain Jubb), a master mariner and marine consultant employed by London Offshore Consultants Limited
("LOC"). On issues relating to survival, the claimant's expert witness was Dr Frank Golden, OBE, PhD, MB, BCh,
DavMed ("Dr Golden"). Having joined the Royal Navy as a Surgeon Lieutenant in 1963, Dr Golden retired with the
rank of Surgeon Rear Admiral.
      14. However, at the outset of the trial, Mr Tillett raised an issue as to whether the claimant's expert evidence should
be admitted in evidence at all, having regard to the funding arrangements that had been entered into between the clai-
mant's solicitors and both Captain Jubb and Dr Golden. Stated shortly, it was Mr Tillett's submission that most if not all
of the work on each expert's initial opinion had been carried out on a "no win, no fee" basis (ie a "contingency fee" ba-
sis), which is impermissible in the case of expert witnesses. He submitted that the claimant's solicitors' late attempt to
deal with the problem, by substituting a deferred payment agreement in each case, did not remedy the situation, because
the bulk of the work had been done at a time when each expert had a significant financial interest in the outcome of the
action. Mr Tillett accepted that the decision was a matter for my discretion, but submitted that each expert's evidence
should be excluded in its entirety (ie both his expert reports and his oral testimony). However, I decided to admit the
evidence and indicated that, in due course, I would give my reasons for doing so in the course of this judgment. In the
following paragraphs, therefore, I give my reasons for having decided to admit the claimant's expert evidence, notwith-
standing Mr Tillett's arguments to the contrary.
    15. CPR 35.3 provides as follows:
    Experts - overriding duty to the court
    (1) It is the duty of an expert to help the court on the matters within his expertise.
    (2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.
     16. Neither CPR 35 (which relates to the rules on expert evidence) nor the Practice Direction that supplements it
deal expressly with the remuneration of an expert witness by means of a contingency fee. However, annexed to the
Practice Direction is a "Code of Guidance on Expert Evidence" ("the Code"), produced by a working party set up by the
Head of Civil Justice, which makes it clear that an expert witness should not be paid on a contingency basis. As it seems
to me, nothing of significance turns on whether the Code is actually part of the Practice Direction in a strict sense be-
cause, as is made clear in its preamble, it is "designed to help experts and those instructing them in all cases where CPR
applies. . .it is drawn in general terms so as to provide guidance for every court of law in the Civil Jurisdiction and in
every type of civil litigation". Accordingly, as Mr Kverndal readily accepted, the guidance contained in the Code should
be followed, save perhaps in exceptional circumstances. So far as material, para (9) of the Code provides the following
guidance:
    (9) Payments contingent upon the. . .outcome of a case, must not be offered or accepted. To do so would contra-
vene the expert's overriding duty to the court.
     17. The Academy of Experts has produced its own code of conduct in respect of expert evidence that has a similar
provision to para (9) of the Code. Similarly, para 21.11 of the Guide to Professional Conduct of Solicitors 1999 (8th
edition) prohibits the payment of a contingency fee to a witness, in the following emphatic terms: "A solicitor must not
make or offer to make payments to a witness contingent upon the nature of the evidence given or upon the outcome of
the case." However, sub-para 4 of para 21.11 acknowledges that it is possible to enter into a suitable agreement whereby
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                                                  [2005] 2 Lloyd's Rep 13


payment to an expert witness is delayed until the case has concluded (a "deferred payment agreement"), as follows:4.
The court has disapproved of arrangements whereby expert witnesses are instructed to provide a report on a contingency
basis. It is possible (subject to prior agreement. . .) to delay paying an expert until the case has concluded, but the fee
must not be calculated dependent upon the outcome.
     18. The propriety of contingency fees for expert witnesses was one of the matters that was considered by the Court
of Appeal in R (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No
8) [2002] 3 WLR 1104. In giving the judgment of the court, Lord Phillips MR summarised the position with regard to
contingency fees and expert evidence as follows:
     70.. . .Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable
that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence,
but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an in-
terest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible.
The question of whether the proposed expert should be permitted to give evidence should then be determined in the
course of case management. In considering that question the judge will have to weigh the alternative choices open if the
expert's evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.
    ...
    72. Clearly, [in his judgment in Hamilton v Al Fayed (No 2)] Chadwick LJ did not contemplate any legal bar to
experts providing their services on a conditional fee basis and it is correct that such a course can assist access to justice.
But the expert will often be in a position to influence the course of the litigation in a manner in which the funder, or
even the lawyer conducting the litigation, will not.
     73. To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a significant
financial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many
cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a
situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administra-
tion of justice than would the interest of an advocate or solicitor acting under a similar agreement. Accordingly, we
consider that it will be in a very rare case indeed that the court will be prepared to consent to an expert being instructed
under a contingency fee agreement.
     19. Andrew Messent is a partner in Holmes Hardingham and is the solicitor who has had the conduct of these pro-
ceedings on behalf of Mrs Davis from the outset. Mr Messent had no previous experience of personal injury litigation
and did not know that an expert witness should not be retained on a contingency basis. So it was that when LOC and Dr
Golden were first approached and asked to provide appropriate expert evidence, they were also both asked if they were
prepared to do so on a "no-win, no-fee" basis. Although Dr Golden did not specifically agree to such a fee arrangement,
he did not expressly demur and, in due course, he went ahead with preparing his expert's report. On 8 March 2004 Cap-
tain Jubb wrote to Mr Messent and confirmed that "LOC are content for me to act on a "no-win, no-fee" arrangement".
It should be noted that, at all material times, Captain Jubb was an employee of LOC and was not involved in the deci-
sion-making with regard to fee arrangements. That was a matter for LOC's senior management.
     20. Dr Golden's original report is dated 24 May 2004 and that of Captain Jubb is dated 10 June. Much of the work
on their respective reports had been done by 8 May 2004, on which date Dr Golden sent the following email to James
Craddick (an assistant solicitor at Holmes Hardingham"):
    I would be obliged if you could advise me on a matter that came up while dining with an acquaintance last even-
ing? He does quite a lot of medico-legal work, in the psychiatric area, and is certainly much more experienced than I
am, or ever likely to be. On asking him whether he had ever been involved in a "no-win, no-fee" type of case, he in-
formed me that it is not possible to be "expert witness" on such a basis. It would be contrary to the principles of the
Practice Direction for expert witnesses to provide evidence in a case which one's fees for work undertaken were depen-
dent on winning a case. Doing so would nullify one's neutrality so to speak.
     While I have given my opinion - on the KB case - honestly and without favour or bias, it could be construed that I
had a vested interest in the outcome and hence not a witness to the court but to the claimant. I can foresee counsel for
the defence making this point and nullifying my evidence.
    Is there any precedence for this? Can you advise?
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                                                  [2005] 2 Lloyd's Rep 13


     21. It is plain from the terms of Captain Jubb's letter of 8 March and Dr Golden's email of 8 May that, just like Mr
Messent, neither had appreciated that a conditional fee arrangement was not an appropriate basis for remuneration of an
expert witness. However, Dr Golden's email of 8 May (in my view, in itself powerful evidence that Dr Golden was very
anxious to ensure that there should be no doubt as to his objectivity and lack of bias) alerted Mr Messent to the mistake
that he had made in seeking each expert's agreement to a conditional fee arrangement. In his witness statement dated 16
November 2004 (the truth of which I accept without reservation), Mr Messent apologised for his error and described the
action that he then took, as follows:
     12. I can only apologise to the court for the fact that I had not been alive to this point earlier. As indicated above,
and in my letter to Eversheds of 12 November 2004, it was simply due to ignorance on my part as to the rules relating to
CFAs. I accept that I should have looked into this at an earlier stage, but I did not do so. That I did not was, I suppose,
in large part because it never occurred to me that respected experts such as Dr Golden and LOC would do anything oth-
er than provide evidence, fully in accordance with their duty to the court, in a fully independent way.
    13. When Dr Golden raised the issue, I then looked into the issue. It seemed to me, following discussions with
leading counsel, that the best way to deal with the matter was for the experts to enter into deferred fee agreements with
Mrs Davies (sic).
     14. By so doing, Mrs Davies (sic) would be liable for their fees in full, but the liability to pay would not crystallise
until after the conclusion of the case.
    15. I spoke to Mrs Davies (sic) and she confirmed that she was happy for me to enter into such agreements . . .
    16. I went back to LOC and Dr Golden, and they both agreed that they were content to enter into such agreements.
    17. Copies of the letters recording the agreements are (exhibited hereto).
    18. The defendant has interpreted those 12 June 2004 (sic) letters as meaning that there was a confirmation of an
agreement to act on a no win no fee basis. That is simply incorrect. The agreement was and is to act on a deferred fee
payment basis - liability to pay is not conditional on the result.
     19. In relation to dates, the agreement with LOC pre-dates Capt Jubb's report. The agreement with Dr Golden
post-dates his first report, but he indicated to James Cradick on 18 May 2004 that he was happy to enter into a deferred
fee agreement. So, by the date of both reports the previous discussions about "no win no fee" agreements had been su-
perseded and both experts had agreed to work pursuant to a deferred fee agreement.
    20. The effect of the deferred fee agreement is that Mrs Davies (sic) will be liable in full for the experts' fees what-
ever the outcome of the case, and the quantum of those fees does not depend in any way on the outcome of the case.
    22. The two letters to which Mr Messent referred in para 18 of his witness statement are actually dated 10 June
2004. The letters are in identical terms and each is countersigned by its addressee to indicate acceptance of its terms.
The material terms of each letter is as follows:
    Further to the instructions hitherto given to you in this matter, we should like to confirm in writing the basis on
which you have been instructed and have agreed to be paid your fees.
     Whilst your instructions have come from this firm and although we are happy for you to render your fee notes to
this firm as agent for the claimant, our client remains responsible for the payment of your fees. In view of the financial
position of our client we understand that you would be prepared to work on this matter without submitting interim in-
voices and instead any fee note will be submitted at the conclusion of the case.
    In order that we may formalise this arrangement we would be grateful if you would sign and date this letter con-
firming your agreement.
     23. It was Mr Tillett's original submission that the letters of 10 June merely constituted written confirmation of each
expert's previously agreed contingency fee arrangement. He therefore submitted initially that both Dr Golden and Cap-
tain Jubb were acting on a contingency fee basis and thus had a significant financial interest in the outcome of the case.
    24. Whilst I accept that it would have been better if the letters of 10 June had made it plain that the previously
agreed/proposed contingency fee basis had been cancelled and that each expert's fees (the amount of which would not
be dependent on the outcome) would be payable by Mrs Davis in any event (albeit deferred until the conclusion of the
case), I am satisfied that the terms of each of the letters are consistent with an appropriate deferred payment agreement
                                                                                                                   Page 10
                                                 [2005] 2 Lloyd's Rep 13


having been reached with each of the experts. I accept Mr Messent's evidence (see, for example, paras 16 and 19 of his
witness statement, quoted above) that, following the receipt of Dr Golden's email, each of the experts was contacted and
each agreed to an appropriate deferred payment arrangement. Mr Messent then sought to record that arrangement in the
letters of 10 June. It would seem that it was in the light of Mr Messent's evidence that Mr Tillett modified his initial
submission (see para 23 above) to that which I have summarised in paragraph 14 above.25. Accordingly, although I
accept that most of each expert's initial report had been carried out whilst the proposed/agreed basis for remuneration
was a contingency fee arrangement, I am satisfied that before each had actually signed his first report, he did agree to be
remunerated on a deferred payment basis (ie the fee, the amount of which was not dependent on the outcome, was to be
paid by Mrs Davis in any event, but payment deferred until the conclusion of the case), instead of the originally pro-
posed/agreed contingency fee basis.
     26. As I have already indicated, the objection to the admission of Dr Golden's and Captain Jubb's evidence came at
the very beginning of the trial, as did Mr Messent's evidence. If I had upheld the objection, it would have been neces-
sary to adjourn the trial, otherwise Mrs Davis would have been unable to have expert evidence called on her behalf
(which, in my view, would have plainly resulted in an unfair trial). Adjournment of the trial would have resulted in con-
siderable delay, substantial wasted costs, a great deal of further expense and much inconvenience to the parties. It would
have been necessary for Mrs Davis's advisers to find and instruct fresh expert witnesses and matters that were already
the subject of agreement between experts (of which there was a significant amount) would have had to be revisited and
fresh without prejudice meetings arranged for that purpose.
     27. As I have already explained, I was satisfied that by the time the objection was raised by Mr Tillett, the remune-
ration of both Mrs Davis's experts had been put on a proper footing for some time (ie by means of the deferred payment
arrangement that had been agreed in May/June 2004). Although, much of the work on each expert's initial report had
been on a proposed/agreed contingency fee basis, it was clear from Dr Golden's email that he was anxious that his ob-
jectivity should be beyond question and I have no reason to believe that LOC's attitude was any different.
     28. It therefore seemed to me that, to the extent that there was any basis for suggesting that the work on the initial
reports (ie in the period prior to agreement to a deferred payment arrangement) might have been influenced, biased or
lacking in objectivity as the result of the expert's apparent financial interest in the outcome of the case, that was some-
thing that could be properly and fully explored in cross-examination and the evidence evaluated accordingly. As it
seemed to me, the consequences of upholding Mr Tillett's objection at trial and refusing to admit the claimant's existing
expert evidence would have been such as to be plainly in conflict with the overriding objective (see CPR 1.1) and
wholly disproportionate to the initial mistake that had been made by Mr Messent and the two experts with regard to the
appropriate basis for their remuneration, a mistake that had been remedied as soon as it had been identified.
     29. Accordingly, for those reasons I decided to exercise my discretion in favour of admitting the claimant's expert
evidence, notwithstanding that much of the work on the experts' initial reports had been done on a proposed/agreed con-
tingency fee basis. In the event, having listened to and observed both Dr Golden and Captain Jubb during Mr Tillett's
careful and searching cross examination of each on this aspect of the matter, I am entirely satisfied that each did act in
accordance with his overriding duty to the court throughout. The dignified rejection and scarcely veiled indignation of
each at the suggestion of bias or lack of objectivity was, in my view, both genuine and completely unfeigned. I therefore
reject the suggestion that their expert evidence lacked objectivity or was biased in any way as a result of each having
carried out work on his initial expert report at a stage when the proposed/agreed basis for their remuneration was a con-
tingency fee arrangement.
    The facts
     30. I now set out the main facts of this case as I find them to be on the evidence that I have heard, read and seen and
in the light of the full and careful written and oral submissions made by Mr Kverndal and Mr Tillett on behalf of the
parties. In the course of this part of my judgment I also state my conclusions with regard to several of the allegations of
fault or neglect (ie negligence) on the part of Stena, its servants or agents.
     31. Mr and Mrs Davis and their two young children, Jim and Katie (now aged 10 and 8 respectively), were passen-
gers on Koningin Beatrix when it sailed at 1040 from Rosslare on the morning of 29 October 2000 carrying 1092 pas-
sengers, 299 cars and 29 freight vehicles. The scheduled sailing time from Rosslare was 0900, but departure had been
delayed because of particularly bad weather. Although the weather had begun to moderate by the time Koningin Beatrix
actually sailed, conditions still remained poor with gale force southwesterly winds and rough seas. Wave heights were
about 4 metres and there was a 1.5 metre swell. However, weather conditions of this degree of severity are not uncom-
mon in the southern Irish Sea and are encountered in approximately 40 per cent of the crossings to and from Rosslare
                                                                                                                  Page 11
                                                 [2005] 2 Lloyd's Rep 13


and Fishguard.32. It was the children's mid-term break. The purpose of Mr and Mrs Davis's trip to England was to visit
Mr Davis's mother in Nottingham for a few days before going on to a party that was to be given by a close friend of Mr
Davis in Brighton and to which they had been invited. The family planned to return to Ireland on 6 November. Mr Da-
vis had spoken to his mother on the telephone the night before and it was clear that he was looking forward to the trip.
He also told her about the deposit he had just put down on a plot of land upon which they planned to build their family
home. He was excited about it and was looking forward to the future.
     33. Mr Davis was aged 35 at the time of his death. He was a civil engineer by profession and was currently em-
ployed by Kilkenny County Council at a salary of IR£34,895. He had gone to Ireland to start work there on 3 August
1999 and had been joined by his family in November 1999. Mr and Mrs Davis's marriage was a happy one and there
were no marital problems. Mr Davis was doing well at work. He was popular and he enjoyed his job. He was in good
health and had no financial worries. According to his work colleagues, Mr Davis had been on good form in the week
immediately preceding his death.
     34. I accept Mr Kverndal's submission that there is no evidence that Mr Davis was subject to suicidal tendencies.
Although he had experienced a psychotic episode in September 1999, it appears that Mr Davis had made a full and rapid
recovery from that condition. His medical notes do not reveal any signs of suicidal tendencies as such and, although
Stena had obtained permission to adduce psychiatric evidence, none was actually forthcoming. In all the circumstances I
see no reason to doubt Mrs Davis's evidence that she did not detect any signs of stress or depression in her husband's
behaviour after he had recovered from the September 1999 psychotic episode, that he loved his work and that he was
cheerful and in good spirits on the day of his death. I also accept Mrs Davis's evidence that her husband was not the sort
of man to act imprudently or foolishly whilst out on deck. I accept that she firmly believes that Mr Davis went over the
side accidentally, that she has always done so and with good reason. I accept her evidence that she has never said any-
thing to suggest that she thought it possible that her husband had gone over the side deliberately because he had been
depressed.
    35. As I will make clear very shortly, there is no evidence as to how Mr Davis actually came to go overboard, be-
cause nobody saw it happen. As I have already indicated, there is no evidence that Mr Davis suffered from suicidal ten-
dencies. On the day in question he had no reason to commit suicide and he was in good spirits. Not only that, but all his
observed behaviour in the period leading up to and on 29 October strongly suggests that he was enjoying life and that he
wanted to live. Once in the sea, the evidence clearly shows that Mr Davis did everything he possibly could to survive
and that he succeeded in doing so for a remarkably long period of time in extremely difficult conditions.
     36. As it seemed to me, Mr Tillett did not put forward the suggestion that Mr Davis had gone over the side delibe-
rately with any degree of enthusiasm or sense of conviction. In the circumstances, that was not surprising. In my judg-
ment, on analysis there is simply no evidence from which it can properly be inferred that Mr Davis deliberately jumped
overboard. I accept Mr Kverndal's submission that, although suicide is no longer a criminal offence, it nonetheless re-
mains a grave allegation and requires a degree of proof proportionate to the seriousness of the allegation (ie cogent
proof): see para 15 of the judgment of Toulson J in The Delphine [2001] 2 Lloyd's Rep 542. In my view, such proof is
singularly lacking in this case for the reasons explained above. I therefore reject the suggestion that Mr Davis went over
the side deliberately. Furthermore, I am not persuaded that he went over the side as the result of some foolish or reckless
action on his part. Such behaviour would have been entirely out of character and there is no evidence from which it can
properly be inferred that he did behave in such a manner.
     37. Koningin Beatrix is a large "ro-ro" ferry of the type usually described as a "superferry". She is currently oper-
ating in the Baltic and has been renamed Stena Baltica. She was constructed in the Netherlands in 1986. She has an
overall length of 161.6 metres and a beam of 27.6 metres. Her gross tonnage is 31,189. She has twin screws and two
transverse bow thrusters with controllable pitch. There are three stern doors that were used for loading and unloading at
Rosslare and one bow door that was used for loading and unloading at Fishguard. Once at sea, the bow and stern doors
should not be opened under any circumstances. Koningin Beatrix is fitted with retractable stabiliser fins, situated amid-
ships and located 4 metres below the load waterline ("the waterline") on each side of the vessel.
     38. Koningin Beatrix is a very high-sided vessel. Deck 3 is the main vehicle stowage deck. The principal passenger
decks are decks 6, 7 and 8 and each has a partially enclosed external deck aft to which passengers are able to gain
access. Decks 6 and 7 do not have any external side decks. Deck 8 (19 metres above the waterline) is the lifeboat em-
barkation deck. Deck 9 (22 metres above the waterline) is the lifeboat stowage deck. Both decks 8 and 9 have external
side decks to which passengers are allowed access.39. All external passenger decks are completely surrounded by safety
handrails just over 1 metre high, consisting of four horizontal members with vertical stanchions at appropriate intervals.
                                                                                                                     Page 12
                                                  [2005] 2 Lloyd's Rep 13


The handrails have gates at various positions to allow access to the lifeboats and the like. These gates open inboard and
are secured shut with a long vertical locking pin.
     40. Koningin Beatrix has an enclosed bridge/wheelhouse that is situated well forward (above frames 165 to 170
approximately) at the forward end of deck 10 at a height of about 25 metres above the waterline. The bridge is 29.4 me-
tres in width and extends slightly outboard on either side of the vessel, thus providing better visibility when manoeuvr-
ing. The vessel's steerage, main engines, bow thrusters, radio communications and navigation systems are all directly
controlled from and/or carried out on the bridge.
    41. On each side of Koningin Beatrix there is a single hull door situated amidships (by frame 95), immediately
above the belting (rubbing strake) that runs almost the full length of the vessel on either side (the belting is about 0.25
metres wide and about 2 metres above the waterline). The door on the starboard side is for bunker access ("the bunker
door") and is surrounded by associated pipework, the door on the port side is for pilot access ("the pilot door"). Both
doors are operated hydraulically, both open outwards and, when fully opened, both lie flat against the side of the hull.
Both doors give access to deck 3 (the main vehicle deck). These doors were also to be kept shut whilst at sea, but the
master did have the discretion to open either of them for the purposes of effecting a rescue.
     42. At all material times Koningin Beatrix was manned and certificated in accordance with all the then current sta-
tutory requirements. She was fitted with six lifeboats (three each side), two rescue boats (one each side), 56 da-
vit-launched liferafts at 14 separate stations, 24 lifebuoys and about 2,500 lifejackets. The vessel was also equipped
with four Speedline rocket lines, designed for getting a line between vessels. None of the rocket lines was fitted with a
buoyant head. Koningin Beatrix was also equipped with a Jason's cradle and various lines and ladders.
      43. The master of Koningin Beatrix on 29 October 2000 was Captain David Rhys Parry Williams ("Captain Wil-
liams"). There is no doubt that Captain Williams is a very dedicated, capable and experienced seaman. He is now aged
55 (52 in October 2000) and had been at sea for 35 years at the time of the incident. He qualified as a master mariner in
January 1975. He has been a master for Stena off and on from 1985 and permanently since 1996. Prior to Koningin
Beatrix, Captain Williams was the master of MV Stena Felicity. He is currently the master of MV Stena Europe. As at
December 2004 Captain Williams had worked for Stena (and its corporate predecessors, Sealink, Sealink Stena Line
etc) for 30 years. Prior to joining Stena, Captain Williams had spent nine years in the merchant navy on deep-sea ves-
sels.
     44. I am also satisfied that normally Captain Williams is very skilled in ship handling. As part of his responsibilities
he has to manoeuvre his vessel in and out of port twice a day, including stern berthing at Rosslare. Stena does not use
pilots and no tugs are available at either port. Captain Williams therefore has to manoeuvre his vessel on a very regular
and frequent basis, with a high degree of precision and accuracy in all sorts of weather conditions.
     45. So far as concerns Koningin Beatrix herself, I accept Captain Williams's evidence that she is very seaworthy,
she rides the seas well (particularly with a following sea) and is reasonably manoeuvrable, although somewhat under-
powered for manoeuvring purposes because of her small rudders.
     46. On 29 October 2000, in addition to Captain Williams, the deck officers of Koningin Beatrix were Robert
("Bob") Weale (night master), Simon Wood (first officer), Patrick ("Pat") Lewis (second officer) and Robert ("Bob")
Allan (second officer). All the deck officers, except Bob Allan, held a master mariner's certificate. Bob Allan held a
chief mate's certificate. The atmosphere on the bridge was informal and relaxed, with first names being the usual mode
of address. The crew also included a bosun and assistant, two quartermasters and 12 able seamen, as well as the
on-board services staff.
    47. Once they had got on board, Mrs Davis took Jim and Katie to find a seat whilst Mr Davis locked the car. Mr
and Mrs Davis were familiar with Koningin Beatrix because they had sailed on her on a number of previous occasions.
Mrs Davis therefore made her way to their usual place which was at a table in the bar area on deck 6, near the on-board
shops at the rear of the vessel. In due course, Mr Davis joined them. As Koningin Beatrix left Rosslare, Mr and Mrs
Davis were seated at the table with their children and enjoying a cup of coffee.
     48. After Mrs Davis finished her coffee, she took Jim to the shop to look for a birthday present for Katie, whose
fifth birthday was in two days' time. Whilst they went to the shop, Mr Davis remained at the table with Katie. After
about 15 minutes, Mrs Davis and Jim returned. They had not been successful in finding anything suitable. Mr Davis met
them as they made their way back to the table and announced his intention of going to the shop. Jim therefore decided to
go back to the shop with his father and try once more to find a present for Katie. Mrs Davis rejoined Katie at the table.
After about 20 minutes, Jim returned by himself. He told his mother that Mr Davis had gone outside, but that he had not
                                                                                                                  Page 13
                                                [2005] 2 Lloyd's Rep 13


wanted to go out with him. In my view, it can be inferred from what Jim told his mother that Mr Davis had invited Jim
to go outside with him, behaviour that was inconsistent with any intention to commit suicide. By then the time was
about 1120. Despite the bad weather conditions, Mrs Davis was not immediately concerned by what Jim told her, be-
cause Mr Davis often went outside during a crossing. Of course, in order to get to the nearest external side deck, Mr
Davis would have had to go up to deck 8.49. Koningin Beatrix was an hour out of Rosslare when Mr Davis went over-
board. As I have already indicated, nobody actually saw what happened. However, a number of the passengers saw Mr
Davis in the sea shortly afterwards and raised the alarm, as described in the following passage from the subsequent Ma-
rine Accident Investigation Branch ("MAIB") report dated December 2001 (as to which, see below):
     Three passengers had been dining in the café located on the aft part of deck 7 and decided to go outside for a
smoke. After about five minutes, one of them noticed an object in the water outboard and to port of the wake. . .astern
of the vessel. He looked closer and realised that it was a man. He pointed him out to his friends and they could clearly
see the man spinning around in the water drawing further astern. The passenger then went back into the café on deck 7
and told the nearest crew member he could find, who was working on the till. The crew member went to the outside
deck with the passenger; however, he was unable to see the man in the water because he was, by then, well astern of the
vessel. The other two passengers verified to the crew member that they had seen someone in the water. The crew mem-
ber returned to the café and told his supervisor what had been reported. His supervisor told him to inform the bridge.
The crew member telephoned the bridge and told the second officer that a passenger had reported seeing someone in the
water. The time was 1145.
     50. The passenger who first spotted the man in the water (who was undoubtedly Mr Davis) was Norman O'Neill.
The two friends to whom Mr O'Neill pointed out the man in the water (and who also saw him as a result) were Martin
Sinnott and Michael Byrne. When Mr O'Neill first saw Mr Davis in the sea he was about 40 to 50 yards astern of the
ship. It is clear from their evidence and from the timing of the emergency "PAN PAN" MOB (man overboard) radio
message that was broadcast by Koningin Beatrix (timed at 1150 and as to which, see below) that Mr Davis went over
the side at about 1140. Having regard to his position relative to Koningin Beatrix when he was first spotted in the water,
it would appear that Mr Davis went overboard from the port side of the vessel, probably from deck 8.
     51. It is not possible to say precisely how Mr Davis came to go overboard and Stena did not advance any positive
case as to what had happened. As I have already explained, I am satisfied that Mr Davis did not go overboard delibe-
rately, nor did he carry out some foolish or irresponsible act that resulted in him going overboard. It was common
ground that there was no basis for any suggestion that any third party was involved (eg that somebody had pushed Mr
Davis overboard). The only remaining possible explanation is that it was, as Mrs Davis has always believed, an acci-
dent.
      52. All Stena's witnesses accepted that it was a possibility that Mr Davis had gone overboard accidentally, although
sometimes that acceptance was qualified by expressions such as "remote" or "highly unlikely". It is clear from the evi-
dence of many of the witnesses that the weather and sea conditions were very poor that day; for example, Koningin
Beatrix's first officer, Simon Wood, described the conditions as "horrendous". It was very windy and there was a big sea
running. Despite the ship's stabilisers having been deployed, there was still a considerable amount of motion and it was
difficult to walk about. Although it was not raining at the time, the decks were wet from spray and spindrift. Captain
Williams acknowledged that it was possible that there were areas on deck 8 that required repainting with non-slip paint
and that they were wet and slippery as a result. Although the access gates in the safety rails were checked regularly, it
was possible for a gate to be opened and left open or its locking pin removed by the curious or mischievous. Whilst it is
important to bear in mind that the police checked all the outside decks after the vessel arrived at Fishguard and found
nothing untoward, it is possible that a member of the crew had by then closed any gate found open without appreciating
its significance.
     53. Furthermore, the time that Mr Davis went overboard coincides almost exactly with the time that Koningin Bea-
trix carried out a 30[#176] turn to starboard in order to avoid a container vessel, Celtic King, that was on a crossing
course, about 1.5 miles off the port bow and, so it would seem, on a constant bearing. Koningin Beatrix was the stand
on vessel, so her primary obligation was to maintain course and speed. Patrick Lewis was the officer of the watch who
had the con of Koningin Beatrix at the time and he did not want the CPA (closest point of approach) to be less than a
mile. When it appeared to Mr Lewis that Celtic King was maintaining her course, he decided to alter course so as to
avoid the two vessels coming too close to each other. Accordingly, he made the necessary clear and decisive alteration
of Koningin Beatrix's course by turning 30[#176] to starboard. It is clear from Koningin Beatrix course recorder trace
that this turn to starboard commenced at 1140.54. Prior to commencing the turn to starboard, Koningin Beatrix was on a
course of 107[#176], the wind was on her starboard quarter and there was a following sea. By 1142 she had steadied on
                                                                                                                     Page 14
                                                  [2005] 2 Lloyd's Rep 13


138[#176]. In my view, the turn to starboard would have caused Koningin Beatrix to heel to port and the heel would
have been increased by the wind being brought round on to the starboard beam. The heel to port would have been of the
order of 4[#176] to 5[#176] and there would have been an increase in the vessel's roll as the result of the seas coming
round on to her starboard side. I am satisfied that the fact that Mr Davis went overboard from the port side of Koningin
Beatrix at the same time as she turned to starboard was not a mere coincidence. In my judgment, the heel to port and the
increased roll of the ship were factors that, in all probability, contributed to Mr Davis losing his footing and going
overboard accidentally at about 1140. In short, Mr Davis did not go overboard as the result of any fault or neglect on his
own part.
     55. Captain Williams very fairly accepted that it was a possibility, albeit a very remote one in his view, that Mr Da-
vis had slipped and fallen over the safety rails on deck 8. Even if it is right to regard that possibility as very remote, the
weather conditions and other circumstances were such as to be very conducive to making such a remote possibility be-
come a reality. In my judgment, the probability is that, whilst Mr Davis was on the port side external deck 8, the vessel's
motion as she turned to starboard caused him to trip or slip and lose his footing and the 4[#176] to 5[#176] heel of the
vessel with its increased roll resulted in him falling against and over the safety rails and thence overboard. Either that or
he fell through the gap in the safety rails that resulted from an access gate having been left open, one that was subse-
quently closed by a crewmember who did not appreciate its significance.
     56. At about 1145, as soon as the man overboard information had been communicated to the bridge, Mr Lewis
commenced to carry out Stena's current operational procedures for a man overboard (as to which, see para 57 below).
He went to the port wing of the bridge and tried to release the lifebuoy, a lifebuoy that is equipped with an automatic
smoke signal. Unfortunately, the lifebuoy did not release instantly and it took Mr Lewis a few moments to work it free.
Having done so, he returned to the bridge console and sounded three long blasts on Koningin Beatrix's whistle ("Man
Overboard"). He then immediately started to turn the vessel around to look for Mr Davis, using the approved procedure
of a "Williamson turn". The course recorder trace shows that he commenced this manoeuvre at about 1147. However,
Mr Lewis failed to press the automatic waypoint on the ship's GPS system to record the ship's nearest position to the
man overboard. In the event, however, this particular oversight on Mr Lewis' part was not causative of Mr Davis's death
in any way.
    57. In October 2000, Stena's current Standing Orders and Operational Procedures Manual contained no guidance
and no specific operational procedure for rescuing a man overboard in the event that it was not possible to launch the
vessel's own rescue boat. The following are the main relevant provisions from Stena's procedures, current at the time of
Mr Davis's death:
    Chapter 3: Sea Operations
    3.9 MAN OVERBOARD
    3.9.1 The procedure for man overboard differs depending on whether the man was observed to fall over or if he is
missed and after a subsequent search is not found and assumed to have gone overboard.
    3.9.2 If the man has been observed to fall over the following procedure should be followed:
    3.9.2.1 Action by the Officer of the Watch:
    (1) Rudder hard over to swing the stern away from the person
    (2) Release bridge wing lifebuoy on the side the person has fallen over. NB make sure the buoy actually goes in the
water and does not hang from the light/smoke float which might not have released from its bracket.
    (3) Press "Auto WP/"Event" on. . .GPS unit. Note WP number.
    (4) Sound Man Overboard signal (Accident Boat signal - THREE LONG BLASTS on the whistle and alarm. An-
nounce on PA "Accident Boat Crew close up".
    (5) Commence "Williamson Turn" . . .
   (6) Put the main engines at Stand By and inform the machinery control room. Reduce pitch on combinators to "Full
Manoeuvring".
    (7) Post two lookouts with binoculars.
    (8) Plot position of ship relative to person overboard. (Auto WP/Event position).
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                                                      [2005] 2 Lloyd's Rep 13


    (9) Hoist Interco flag "O" if near shipping traffic. Display NUC lights at night.
    3.9.2.2 Action by the Ship's Company
    (1) Muster at Accident Boat stations, Accident Boat crew wearing protective clothing, lifejackets . . .
    (2) Accident boat party prepare accident boat.
    (3) Machinery party to Machinery Control Room.
    (4) First Aid Party to provide stretcher. . . .
    (5) The master will take charge when he arrives on the bridge and manoeuvre the ship as required.
    (6) Nearby shipping alerted by VHF.
    (7) "PAN" message sent if required.
     (8) When the Accident Boat is prepared for launching 120 fathoms gantline attached to a lifebuoy with a spare
smoke float can be towed astern.. . .In rough weather or darkness the ship can be manoeuvred such that the trailing line
will form an arc in which the man overboard can be gathered and on to which he can hold until recovered by boat or
winched into the ship.
    (9) If possible a pilot ladder and gangway net should be placed over the lee side with manropes. If necessary the
person overboard can be recovered up the ship's side using the pilot ladder and gangway net. Men wearing lifejackets
and on lifelines must be prepared to go over the side on the ladder and net to assist the person in the water.
     58. Whilst the Williamson turn was being carried out, Captain Williams, Simon Wood and Robert Weale joined Mr
Lewis on the bridge. Bob Allan was asleep in his cabin, having been on duty through the previous night, and did not
hear the alarm. Once he reached the bridge, Captain Williams assumed responsibility for conducting and coordinating
the necessary search and rescue operation. Captain Weale very quickly realised that the automatic waypoint button had
not been pressed and so he pressed it. As soon as he got to the bridge, Simon Wood took over responsibility for radio
communications and broadcast on VHF Channel 16 an emergency PAN PAN signal that there was a man overboard.
When the Williamson turn was completed (at about 1150), Captain Williams took over the con of Koningin Beatrix and
assumed direct responsibility for manoeuvring the ship. Mr Lewis then acted as lookout, together with several ratings,
making a total of about ten on the bridge. Other ratings were posted to the outside decks to act as lookouts.
     59. According to the Irish Coast Guard radio log ("Irish CG"), Koningin Beatrix's "PAN PAN" signal was broad-
cast at 1150. I am satisfied that the times given in the Irish CG radio log are accurate and provide a reliable means of
timing the various relevant events that occurred during the incident. As a result of the PAN PAN broadcast, the Rosslare
RNLI lifeboat was launched at 1208 and R116 was one of two rescue helicopters scrambled from Dublin at 1214 (the
other, R169, was subsequently instructed to return to base). On hearing the PAN PAN, the nearby Celtic King (which
also timed that signal at 1150 in its log) slowed down, sounded the general alarm, made arrangements for lookouts and
joined in the search for Mr Davis. Shortly afterwards, Celtic King also began to prepare her fast rescue boat (a ri-
gid-hulled inflatable) for launching and the rescue boat crew began donning their immersion suits.
      60. Nobody on the bridge of Koningin Beatrix believed that there was much chance of finding the man overboard,
still less of rescuing him alive. Not only were conditions such that it would be very difficult to see or find him, but no-
body thought that he would survive for very long in such rough cold seas (the sea temperature was 12[#176] celsius at
the time). Until Mr Davis was actually spotted, discussions on the bridge were solely concerned with conducting the
search. So it was that, at this stage, the bridge team on Koningin Beatrix gave no consideration as to how Mr Davis was
to be rescued if and when he was found alive. I accept Mr Kverndal's submission that this was a significant and negli-
gent omission, as Stena's maritime expert witness, Captain Eric Beetham ("Captain Beetham"), effectively agreed in the
following passage in his evidence (Transcript, day 9, pages 129-130):
     Mr Kverndal. I think we know from Captain Williams' evidence that no plan was devised or thought out as to the
retrieval until the man overboard was seen by the bridge team. Do you recall that?
    Captain Beetham. Correct, yes
    ...
    Q. If you find him alive, you want to be prepared for that eventuality?
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                                                   [2005] 2 Lloyd's Rep 13


    A. Yes, yes.
    Q. Some advanced thinking as to how you might be able to rescue him.
    A. Yes.
    Q. There was not, was there?
    A. No. There was not anything planned for it at that point.
    Q. That really was not satisfactory, was it?
    A. It could have been done better, yes.
    Q. One would expect a reasonable and prudent master mariner to have made some preparations as to how you
might rescue in the event of finding.
    A. Yes.
    61. As it happened, Mr Davis was a very strong swimmer who had successfully passed the very demanding STA
(Swimming Teachers' Association) bronze, silver and gold personal survival swimming awards whilst he was still at
school. Furthermore, Mr Davis was well built, weighed about 15 stone and had a significant amount of subcutaneous
body fat. As a result, he was still very much alive and in good condition when a member of Celtic King's crew first
spotted him shortly before 1230, about 50 minutes after he had gone overboard.
     62. When he first arrived on the bridge, Captain Williams' intention was to launch one of Koningin Beatrix's rescue
boats if the man overboard was located. However, he very soon came to the conclusion that the weather conditions were
such that it would not be possible to launch either of Koningin Beatrix's rescue boats. That decision is not criticised and
was plainly correct, having regard to the adverse weather and sea conditions. However, as Captain Williams accepted
and as he realised at the time, it did mean that any rescue of the man overboard by retrieving him to Koningin Beatrix
would be extremely difficult and, to all intents, virtually impossible. In my view, the obvious and extreme difficulties in
effecting a rescue to Koningin Beatrix in such conditions made it all the more necessary for there to be a clear and
carefully prepared plan of rescue.
     63. The virtual impossibility of rescuing a man overboard by recovering him to a high-sided vessel like Koningin
Beatrix, when its own rescue boats could not be launched because of bad weather, was a problem of which Stena and
the maritime industry had been well aware for some time, following the report into the Estonia disaster. The Estonia
was a passenger ro-ro ferry that foundered in the Baltic on 28 September 1994, with a loss of 852 of her 989 passengers
and crew. The weather conditions at the time were gale force winds and wave heights of 3 to 4 metres. As a result, none
of the vessels participating in the ensuing rescue operations was able to launch a lifeboat or rescue boat and very few
people were rescued, because of the extreme difficulties encountered in retrieving people to the vessels themselves.
     64. The investigation into the Estonia disaster resulted in an extensive report that received wide publicity in the in-
dustry. As a result and as Captain Williams readily acknowledged in cross examination, by the late 90s it was well rec-
ognised that existing on-board facilities of vessels such as Koningin Beatrix (ie high-sided ferries and the like) were
wholly inadequate for the purpose of saving the life of a man overboard in weather conditions that were so adverse as to
prevent the launch of rescue boats. Captain Williams also accepted that he had been well aware of the possibility of a
man overboard occurring in weather conditions when it would not be possible to launch Koningin Beatrix's rescue boat.
This awareness on Captain Williams's part was not surprising, given the significant incidence of bad weather crossings
on the Rosslare/Fishguard route.
      65. However, despite what was well known about the near impossibility of rescuing a man overboard to a high
sided vessel like Koningin Beatrix in adverse weather conditions, neither Captain Williams nor any of Koningin Bea-
trix's officers and crew had received any advice or guidance nor had they undergone any training with regard to the res-
cue of a man overboard in such circumstances. Furthermore, Stena had not carried out any appropriate risk assessment
of such an emergency. In my view, given the widespread awareness of the problem and the likelihood of such an emer-
gency occurring on the Fishguard/Rosslare crossing, these were plainly serious and negligent failures and omissions on
the part of Stena. I am fortified in that conclusion by the recommendations made by MAIB in its subsequent report into
the incident (as to which see paras 106 and 107 below). I also agree with Mr Kverndal's submission that, even if the
foregoing shortcomings on the part of Stena were representative of the standards of the industry at the time, that does
not excuse them: see, for example, Barkway v South Wales Transport Co [1950] 1 All ER 392.
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                                                 [2005] 2 Lloyd's Rep 13


     66. As it happened, the fast rescue boat with which Celtic King was equipped and which was being readied for
launch was of a type capable of being launched in the prevailing weather and sea conditions. Moreover, Celtic King's
rescue boat was crewed by ex-fishermen, skilled in handling such craft in such heavy weather conditions. As Captain
Williams readily acknowledged, Celtic King's fast rescue boat was obviously the best option by far for achieving a suc-
cessful rescue of Mr Davis once he was found alive. Furthermore and importantly, Captain Beetham accepted in evi-
dence that there was no reason to suppose that Celtic King's fast rescue boat would have had any particular problem in
retrieving Mr Davis. In the event, although the rescue boat and its crew were ready for launch by about 1228, it was not
actually launched.
      67. As I have already stated, approximately 50 minutes after he had gone overboard, Mr Davis was located in the
water by one of Celtic King's crew. At that stage Mr Davis was about 100 yards off Celtic King's starboard quarter.
Remarkably, he was still alive and in good condition - emphatic proof of his swimming and survival skills and his de-
termination to live. The information was passed to Koningin Beatrix and at 1232 Koningin Beatrix radioed the Irish CG
and confirmed that Celtic King had located the man overboard.68. As I have already indicated, I am satisfied that Celtic
King's fast rescue boat and its crew were ready to launch by 1228 (see the official log entry and the statements of her
master, Captain David Ganderton to that effect). Furthermore, I am also satisfied that, at that stage, Captain Ganderton
was clearly prepared to launch the fast rescue boat if requested to do so by the master of Koningin Beatrix (ie Captain
Williams), who was the officer responsible for coordinating the rescue of the man overboard. I am therefore satisfied
that Celtic King fast rescue boat was fully crewed and both ready and available to launch at a stage when Mr Davis was
still alive in the water. Furthermore, Captain Ganderton remained willing to go ahead and launch the fast rescue boat for
as long as Mr Davis remained alive in the water.
     69. At about 1229 Koningin Beatrix's bridge team also had Mr Davis in sight. I accept Mr Kverndal's submission
that Captain Williams' suggestion that the log entry is incorrect as to the time of sighting, is wrong for the reasons given
in para 80(1) and (2) of Mr Kverndal's written closing submissions, with which I agree. When first seen from the bridge
of Koningin Beatrix, Mr Davis was about 350 to 400 metres away from the ship. The course recorder trace shows that at
1229 the ship was slowly turning to port from a heading of 270[#176]. The wind was thus on Koningin Beatrix's port
bow.
     70. Although Captain Williams's evidence was to the effect that Mr Davis was fine on the starboard bow when he
was first spotted and that, in effect, he never came aft of the stem, I am satisfied that Mr Davis was in fact much further
round on the starboard side than that. In my view, it is very probable that, at or shortly after the time he was first spot-
ted, there was a stage where Mr Davis was or appeared to be off Koningin Beatrix's starboard quarter. There was a con-
siderable body of eyewitness evidence (the general thrust of which I accept as accurate) which clearly shows that Mr
Davis was much more on Koningin Beatrix's starboard beam when he was seen by passengers and crew (see the sum-
mary of that evidence in para 80(2) of Mr Kverndal's written closing submissions). Furthermore, I accept Mr Kverndal's
submission that there was probably also a bona fide report to the bridge that the man overboard had been sighted "as-
tern" or "by the stern" and that this gave rise to the reference in the ship's log of the man overboard having been "sighted
starboard side astern".
     71. After Mr Davis was spotted Captain Williams decided to go ahead and try to rescue him by recovering him to
the ferry. His account of the decision-making in his evidence in chief was as follows (see paras 40 and 42 of his first
witness statement):
     40. After we had actually spotted Mr Davis the discussions on the bridge turned to how we were going to actually
rescue Mr Davis. Bob Weale and I quickly discounted the possibility of launching a rescue boat - we thought that it was
just far too dangerous to launch a boat from the side of the vessel in the prevailing weather conditions. . . .
     42. We therefore considered what other options there were. We considered the only viable option was to attempt to
recover Mr Davis through the bunker door. This meant getting a line to Mr Davis and guiding him along the side of the
vessel to the bunker door where we hoped to be able to manhandle him up into the vessel using a rope ladder. We did
not consider that there was any other viable alternative (such as opening the bow doors or one of the stern doors).
     72. In my view, it is significant that the only rescue options considered by the Koningin Beatrix bridge team were
restricted to considering how Mr Davis could be recovered to Koningin Beatrix herself. Celtic King was not requested
to launch her fast rescue boat, although by then it was ready to be launched and Captain Ganderton was prepared to
launch it, once he had manoeuvred his vessel to provide the necessary lee (which would have taken a few minutes). I do
not accept Captain Williams's suggestion that there might have been some problem that was delaying the launch of Cel-
tic King's fast rescue boat. It is clear from both Celtic King's log and Captain Ganderton's evidence (which is disar-
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                                                [2005] 2 Lloyd's Rep 13


mingly frank and which I accept as true and accurate) that the fast rescue boat was ready for launch at about 1228. As
already indicated, I am also satisfied that Celtic King's fast rescue boat was ready for launch at a time when Mr Davis
was still very much alive and well before he was reported as face down in the water. In my opinion, it was obvious and
should have been obvious to Captain Williams at the time that Celtic King's fast rescue boat was in a position to rescue
Mr Davis much more quickly and with far less danger to him than Captain Williams' planned retrieval to Koningin Bea-
trix.
     73. In effect, all that was required was for Koningin Beatrix to request Celtic King to go ahead and launch. Had that
request been made, I have no doubt that the rescue boat would have been launched and (as I shall explain shortly) the
strong probability is that Mr Davis would have been rescued alive by about 1245 (see para 79 below). I reject Captain
Williams's suggestion that there was no need for him to tell Celtic King to launch her fast rescue boat because they had
already volunteered to do so. As Captain Beetham readily accepted, as the on-scene co-ordinator it was for Captain Wil-
liams to request Celtic King to launch her fast rescue boat and that, until that request was made Captain Ganderton
would have been wrong (and answerable to his crew if there had been an accident) to go ahead and launch. I accept Mr
Kverndal's submission that Simon Wood, as the communications officer, should have been communicating with Celtic
King to monitor her readiness to launch and then passing on that information to Captain Williams, information that
Captain Beetham agreed was particularly important. In my view, Captain Williams' lack of awareness of Celtic King's
state of readiness to launch was probably due to an inadequate flow of information between Simon Wood and himself.
However, in the event, Celtic King was not requested to launch her fast rescue boat and Captain Williams proceeded to
go ahead with his plan (such as it was) to manoeuvre Koningin Beatrix close to Mr Davis in order to try and retrieve
him through the vessel's bunker door (starboard side).74. In my view, Captain Williams's critical decision to go ahead
and try to carry out the rescue of Mr Davis to Koningin Beatrix was a calculated decision, reached after discussion with
another bridge officer (Captain Weale). Although Captain Williams was faced with an emergency (ie a man overboard),
he had plenty of time between the commencement of the emergency and the time that Mr Davis was located in which to
decide on his course of action in effecting the actual rescue. In my view, therefore, the decisions that Captain Williams
had to and did make in order to rescue Mr Davis were not "agony of the moment" decisions of the Bywell Castle type of
case.
     75. I am satisfied from the eyewitness evidence that Mr Davis was in good condition as Koningin Beatrix was ma-
noeuvred towards him, despite having been in the water for about 50 minutes by then. This remarkable state of affairs
was due to Mr Davis's determination to live, his significant survival and swimming skills and the fact that he had good
body insulation, ie a good layer of sub-cutaneous fat. Between about 1230 and 1240, Mr Davis was seen by various
eye-witnesses to be treading water and to be waving one or both of his arms above his head (in particular, I accept the
evidence of Mr Rogers, Mr Korodi and Mr Stone on this particular aspect of the matter as generally accurate and relia-
ble). Plainly, Mr Davis had been very successful in coping with the difficult sea state and had obviously got used to it.
As Mr Davis got closer to the starboard side of the ship, he was also able to and did speak back to those on board (for
example, to Emyr Williams, a member of the crew). Although Mr Korodi expressed the view, in his statement to the
Garda, that Mr Davis's movements had become slower as he came close to the ship and just before he passed out of
sight under the flare of the bow, I am satisfied that, having regard to the evidence as a whole, Mr Davis's physical con-
dition had not by then deteriorated significantly in comparison with his condition when first sighted at about 1229.
     76. I am satisfied from the eyewitness evidence of Mr Davis's general condition, observed behaviour and actions, as
he came closer to Koningin Beatrix at about 1230, that his core body temperature was still above 35[#176] celsius (the
temperature that marks the onset of hypothermia and the progressive loss of muscular function, leading to drowning)
and remained so as he passed out of view under the flare of the starboard bow. For reasons that I will explain shortly, I
also accept Dr Golden's predicted overall survival time for Mr Davis of 1.5 to 1.75 hours from initial immersion. I am
therefore satisfied that, absent any intervening event to disrupt or interfere with his ability to continue swim-
ming/treading water as he had already done for some 50 minutes, Mr Davis would have survived for about a further 40
to 55 minutes before drowning (ie until about 1310 to 1325).
    77. On this aspect of the matter, I found the evidence of Stena's survival expert witness, Dr Edward Oakley ("Dr
Oakley"), very unsatisfactory. He did not appear to be willing to take properly into account what was actually seen and
observed at the time. Despite acknowledging that Mr Davis's observed behaviour at around 1230 meant that his core
body temperature was still above 35[#176]C (and that, therefore, hypothermia had not yet set in), Dr Oakley persisted in
maintaining that this was not something that he either needed to or should take into account when estimating the rate of
Mr Davis's loss of core body temperature and his likely temperature at various times (and thus his likely survival time).
Dr Oakley therefore steadfastly (and unreasonably, in my view) refused to adjust or amend his illustrative graph, which
                                                                                                                    Page 19
                                                  [2005] 2 Lloyd's Rep 13


showed Mr Davis's calculated temperature at 1230 as being between 31.5[#176]C and 34.5[#176]C, a temperature range
that (if correct) would mean that, by that time, Mr Davis would have been suffering significant loss of muscular func-
tion due to the onset of hypothermia. For the critical period from about 1225 to 1245, the information provided by Dr
Oakley's graph was positively misleading in the light of the observed facts as to Mr Davis's condition during that period.
Nevertheless, Dr Oakley singularly failed to give me any satisfactory reason for not amending his graph to take account
of the observed facts. In contrast, Dr Golden seemed to me to be entirely objective and was, in my view, an altogether
more impressive expert witness than Dr Oakley. To the extent that they differed, I prefer the evidence of Dr Golden.78.
Having regard to the view that I have formed as to the eyewitness evidence of Mr Davis's behaviour, general condition
and actions at about 1230 (see para 75 above), I am satisfied that Dr Golden's amended graph, showing Mr Davis's pre-
dicted body cooling curve is far more reliable and helpful than Dr Oakley's. According to Dr Golden's amended graph,
Mr Davis's core body temperature would still have been above 35[#176]C at 1235 and I am satisfied that this is consis-
tent with and supportive of Dr Golden's predicted overall survival time (see para 76 above). I also accept Dr Golden's
evidence that the sudden drop in temperature, as shown on his graph between 1240 and 1245, takes proper account of
the heat exchange effect of Mr Davis's inhalation of substantial quantities of cold seawater. I will come to how Mr Da-
vis came to inhale that seawater shortly, when considering how he came to drown.
      79. I accept Mr Kverndal's submission that, if Celtic King had been requested to launch her fast rescue boat as soon
as it was ready at about 1230, the rescue boat would have been alongside Mr Davis by about 1245. Mr Davis would
then either have been rescued alive into the rescue boat or provided with flotation devices and encouragement until the
imminent arrival of the rescue helicopter R116. In fact, R116 was on the scene at about 1254 and had Mr Davis in sight
by 1255. Either way, he would have been rescued alive. In my judgment, it is clear that Mr Davis would have survived
long enough (by a comfortable margin) to be rescued successfully by either Celtic King's rescue boat or R116 or a com-
bination of the two if something had not occurred to prevent him, in effect, from continuing to swim and tread water
successfully as he had done for the last 50 minutes. It is to that aspect of the matter that I now turn.
     80. Between about 1230 and 1234, Mr Davis was very close to Koningin Beatrix on her starboard side. As I have
already indicated, he was still very much alive, he was in good condition and was seen to be treading water and waving.
His core body temperature was still above 35C and hypothermia had not yet set in. As he came close to the ship, an at-
tempt by the crew to throw him a lifebuoy was unsuccessful. Captain Williams's plan was to recover Mr Davis through
the bunker door. This meant getting a line to Mr Davis and guiding him along the side of the ship to the bunker door,
through which it was hoped to be possible to manhandle him.
     81. In my view, Captain Williams's rescue plan ("the rescue plan") was ad hoc, ill prepared and not well thought
out. No real thought was given as to how precisely the rescue was to be carried out and such preparation as did take
place was hurried and without the benefit of any thinking/discussion in advance. The planning only started when Mr
Davis was spotted alive. At most the rescue plan was a plan in outline and was, as it seems to me, wholly inadequate for
such a difficult and demanding task. In my judgment, the failure to prepare a careful and detailed rescue plan or to have
such a plan available was negligent. Furthermore, the rescue plan was, as Captain Williams should have realised,
doomed from the outset and had no hope of success. There was no real issue as to whether such was the case. Thus, in
para 16.14 of his report Captain Beetham expressed the view that any attempt to retrieve to the ferry was "virtually im-
possible" and in cross-examination he accepted that it was "impossible" and "doomed to failure".
     82. In my view, Captain Williams's rescue plan was so hopeless and so risky that he should not have proceeded
with it unless there was simply no other rescue option available to him. In the circumstances of this case and having
regard to the other rescue options that were available, Captain Williams's decision to go ahead immediately with his
own plan of rescue was, in my opinion, negligent. Unfortunately, Captain Williams was so intent on carrying out his
own rescue plan that he did not give any real thought to the available and greatly superior option (an obviously effec-
tive, quicker and much safer option - see above) of requesting Celtic King to launch her fast rescue boat as soon as it
was ready. Had he done so, Mr Davis would have been saved. His failure to do so was, in my view, negligent.
     83. The rescue plan presented the would-be rescuers with extremely difficult if not insuperable problems in the
prevailing weather and sea conditions, such as how to get a line to Mr Davis, how to manoeuvre him safely along the
side of the ship, how to secure him in the water and how to manhandle him over the belting and in through the bunker
door. The execution of this particular rescue plan was bound to expose both Mr Davis and the crew-members carrying it
out to significant risk of serious injury, if not worse. Furthermore, I am satisfied that, in the weather and sea conditions
prevailing that day, to open the bunker door and to keep it open for long enough to retrieve Mr Davis to the ship (ie at
least 20 minutes, assuming it could be done at all) would have exposed Koningin Beatrix to a very significant and
wholly unacceptable risk of sufficient water entering the car deck to affect the stability of the ship.84. I therefore accept
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                                                   [2005] 2 Lloyd's Rep 13


Mr Kverndal's submission that, in effect, it was common ground between the maritime experts that Captain Williams's
decision to attempt retrieval of Mr Davis through the bunker door (ie the key element of the rescue plan) was not only
doomed to failure but, in the sea and weather conditions then prevailing and with the obvious real risk of waves entering
and destabilising the vessel, was plainly negligent and one that Captain Williams should have been given appropriate
advice and instructions to avoid. In my view, Captain Beetham's evidence to that effect, given during the course of his
cross-examination, was both clear and unequivocal. It suffices to quote the following passage from the transcript of his
evidence on Day 9 (starting at page 178):
     Mr Kverndal: And I suggest to you that there was quite a high risk of a real catastrophe if crewmen tried to effect a
retrieval through bunker doors in the sort of circumstances that prevailed on 29 October 2000.
    Captain Beetham: There could have been.
    Mr Justice Forbes: Do you agree?
    Captain Beetham: There could have been, yes.
    Mr Kverndal: There could have been a catastrophe.
    A. Yes.
     Q. And if Captain Halanen had carried out a risk assessment of rescuing a man overboard through the only means
available to the ferry, namely through the bunker door, he should have come to the same conclusion as you, should he
not, that there was a potential catastrophe if this method were tried?
    A. Yes.
    Q. And he should have warned his masters that they should under no circumstances attempt such a retrieval me-
thod?
    A. Yes.
    Q. Yes?
    A. Yes.
    Q. And he should have told them the reason why they should under no circumstances attempt such a retrieval me-
thod: because it could be catastrophic?
    A. I think they would know that, but I think an explanation is always helpful.
    Q. And he should have given proper instructions, training and procedures which would warn the masters of his
ships about this?
    A. Yes. I think you are duplicating the bit with instructions and procedures.
     Q. One way or another, he should have made it very clear to the masters of his ships that this was a potentially ca-
tastrophic retrieval method?
    A. Could be, yes.
    ...
    Q. But in the circumstances of this case, no reasonable and prudent master should ever have attempted to retrieve
through the bunker door, should he?
    A. No.
    Q. Thank you. . . .
    ...
     Q.. . .I was just going to suggest that the thrust of Captain Halanen's evidence is that he left all these matters to the
discretion of the master.
    A. Yes.
    Q. You will remember that. In the light of what you have just been telling the Court, that was wrong, was it not?
                                                                                                                    Page 21
                                                  [2005] 2 Lloyd's Rep 13


    A. He should have been given guidance.
    Q. And the failure to give guidance meant that Stena failed to meet the standards, which one would expect of a
reasonable and prudent ship owner?
    A. No. At that time, they were doing what all the ship owners did.
     85. Although Mr Tillett conducted a careful re-examination of Captain Beetham with regard to (inter alia) this part
of his evidence in cross-examination, I am satisfied that, on analysis, Captain Beetham did not really retract or modify
the main thrust and meaning of his earlier evidence from which I have just quoted the above passage. I agree with Mr
Kverndal that in his answers in re-examination Captain Beetham fell into the trap of creating a false antithesis between a
retrieval attempt through the bunker door and doing nothing at all: see para 106(1) to (5) of Mr Kverndal's written clos-
ing submissions. As Mr Kverndal observed, it was never any part of the claimant's case that Captain Williams should
have done nothing at all, still less that he should have "steamed away" (Transcript, day 10, page 47). It was the clai-
mant's case that Captain Williams should have been active in his role as on-scene co-ordinator (in particular, by re-
questing Celtic King to launch its fast rescue boat), he should have manoeuvred Koningin Beatrix upwind so as to pro-
vide a lee, he should have used his best endeavours to get flotation aids (such as lifejackets or lifebuoys) to Mr Davis
and he should have given appropriate reassurance and encouragement by loudhailer.
     86. I am therefore satisfied that not only did the planned attempt to retrieve Mr Davis through the bunker door ex-
pose Koningin Beatrix to the risk of catastrophe, but it also exposed to danger both Mr Davis and the crew-members
who were to try and effect his rescue in that fashion (particularly those who would have to manhandle him aboard). As I
have already indicated, Captain Williams should not have considered proceeding with such a rescue plan unless there
was simply no other option available to him.87. Essentially, the negligent decision to proceed with the rescue plan de-
spite all its obvious risks and insurmountable difficulties stemmed from the fact that it was devised on the hoof, at the
last minute and without there having been any advance planning carried out or thought given (either by Stena or by
Captain Williams) as to how to conduct the rescue of a man overboard from a vessel like Koningin Beatrix in circums-
tances where it was not possible to launch the ship's own rescue boats. This was so, despite what had been learnt from
the Estonia disaster about the serious difficulties of dealing properly with such an emergency.
     88. On this aspect of the matter generally, I found the evidence of Stena's Group Safety Adviser, Captain Raymond
Garth Halanen ("Captain Halanen"), to be far from satisfactory and wholly unpersuasive. Whilst I do not suggest that
Captain Halanen was less than frank in his answers, he was undoubtedly unduly defensive and, in a significant number
of instances, unreasonable in both answer and manner. I base that assessment on his demeanour whilst giving evidence
(in particular, whilst being cross-examined) and on the various criticisms of his evidence made by Mr Kverndal in para
68 of his written closing submissions, with which criticisms I find myself in complete agreement (other than with the
comment in the final sentence of subpara (4)).
     89. I therefore agree with Mr Kverndal's submission that Stena (and Captain Williams) would have benefited very
considerably if proper regard had been given to the following observations of Clarke LJ in para 25.1 of his interim re-
port into the Marchioness disaster (published on 2 December 1999, almost a year before the events with which this case
is concerned):
     As this inquiry has proceeded, I have become more and more convinced of the importance of risk assessment as the
correct approach to questions of maritime safety, both generally and in the context of the Thames. The purpose of risk
assessment is to try to assess relevant risks in advance so that appropriate steps can be taken to put measures in place to
eliminate or minimise them. It contrasts starkly with the historical approach which involved waiting until a casualty
occurred before trying to learn lessons from it and improving, say methods of design, construction, equipment or opera-
tion of ships. . .Such an approach is surely no longer acceptable. That lesson has been learned much more quickly in the
non-maritime field. The evidence which I have seen suggests that it is gradually being learned in the maritime field,
albeit somewhat slowly.
     90. In my view, if Stena had properly taken into account the lessons of the Estonia disaster and/or had adopted the
type of approach advocated by Clarke LJ in his interim report into the sinking of the Marchioness, Stena would have
provided and Captain Williams and his officers would have been given appropriate advice and training with regard to
the particular difficulties involved in effecting the rescue of a man overboard in weather conditions in which it was not
possible to launch the ship's own rescue boats. I have no doubt that if such training and advice had been given, it would
have emphasised the significant risks to ship, crew and casualty and the almost impossible nature of any attempt to re-
trieve the casualty to the ship in such conditions and, in particular, it would have stressed the need for the master to con-
                                                                                                                    Page 22
                                                 [2005] 2 Lloyd's Rep 13


sider all other available rescue options. As I have already indicated, Stena's palpable failure to have proper regard to the
lessons learnt from the Estonia disaster and its failure to adopt the type of approach recommended by Clarke LJ in his
Marchioness report were plainly negligent. These failures and omissions resulted in Captain Williams and the officers
and crew of the Koningin Beatrix not having been given the sort of advice, guidance and training that was needed in
order to deal properly with the emergency with which they were faced on 29 October 2000.
     91. Appropriate advice and training would have provided Captain Williams with the clear guidance that he needed
in the situation that he faced that day, namely that he should only consider resorting to his type of rescue plan if there
was no other available option for recovering the casualty. In short, the appropriate advice and training would have re-
flected the amendments that were made to Stena's Standing Orders and Operational Procedures after the event (ie in
January 2002), in particular the new subparas (1), (2), (12) and (13) that were added to para 3.9.2.2, as follows:
    3.9.2.2 Action by the Ship's Company
    (1) The master will take charge when he arrives on the bridge and manoeuvre the ship as required.
    (2) Working Party muster on the bridge.
    ...
     (12) If for any reason the rescue boat cannot be launched the master should consider other means of recovery. The
most efficacious means may be by helicopter or RNLI lifeboat. It is essential that the Coastguard is advised of this at an
early stage of the operation.(13) Where possible a lifebuoy, lifejacket, rocket line with flotation device or any other
means to assist flotation should be thrown to the person in the water to enable him to remain afloat pending the arrival
of the helicopter or lifeboat.
     92. As it was, Captain Williams had not received any advice or training in dealing with the rescue of a man over-
board in conditions where it was not possible to launch the ship's own rescue boats, nor was there any guidance to be
gained from Stena's current standing orders and procedures (in striking contrast with the 2002 amendments). He there-
fore went ahead with his rescue plan without giving any real consideration to the other means of recovery (ie Celtic
King fast rescue boat and the fairly imminent arrival of the rescue helicopter R116).
     93. Captain Williams actually proceeded to carry out his rescue plan by manoeuvring Koningin Beatrix so as to
bring her as close to Mr Davis as possible and as quickly as possible. However, it was common ground between the
maritime experts that, in order to carry out the type of rescue attempt he had in mind, Captain Williams should have
manoeuvred Koningin Beatrix so as to position her an appropriate distance directly upwind of Mr Davis (Captain Bee-
tham suggested 40 to 50 metres, Captain Jubb suggested 200 to 250 metres). Captain Williams should then have stabi-
lised the ship and let her drift down towards Mr Davis under her own leeway, making sure that there was no residual
movement of the ship forward or astern (see, for example, Captain Beetham's evidence at Transcript, day 10, pages 7
and 8). I accept Captain Beetham's description of this method of approaching a man or object in the water as "standard
ship handling" (Transcript, day 10, page 9) and "a fairly standard manoeuvre" (Transcript, day 10, page 11).
     94. Whilst Captain Williams manoeuvred the ship towards where Mr Davis was in the water, Captain Weale left the
bridge to go down to the car deck (deck 3) in order to try and retrieve Mr Davis through the bunker door. Mr Wheale
was accompanied by Bob Allan, who had woken up by then, and one or two other crewmembers. On the way down they
collected some rope and a life buoy. There was no clear plan as to how they were to carry out the recovery. Nobody
obtained, let alone put on, an immersion suit. In the event, the bunker door was not opened, because they were informed
that the man overboard was now on the port side of the vessel. The rescue team therefore moved across to the starboard
side and opened the pilot door.
    95. The extreme difficulty and danger of trying to retrieve Mr Davis to Koningin Beatrix through one of the hull
doors (as well as the lack of any proper plan for doing so) is very apparent from this passage in Captain Weale's evi-
dence in chief (see para 14 of his witness statement):
     The pilot's door was opened. The scale of our task was immediately apparent because the door was approximately
10 feet above the waterline, there was belting around the ship (which would prove an obstacle to manhandling anyone
on board) and the sea was very rough. Furthermore, the doorway was only wide enough for one man to stand in the
doorway at once and there was generally little room for manoeuvre because of the design of the ship. There was clearly
no time to rig a block and tackle to winch the casualty on board. The only way we could get the casualty on board
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                                                   [2005] 2 Lloyd's Rep 13


would have been for a member of the crew to don an immersion suit, climb down the pilot ladder and attempt to pull the
casualty back on board.
     96. As I have already indicated, I am satisfied from the totality of the eyewitness evidence (in particular that of the
passengers) that, when he was first spotted from the bridge, Mr Davis was much further round to starboard of Koningin
Beatrix than was suggested by Captain Williams. In my view, it is also clear that Captain Williams's final approach was
not such as to position and stabilise Koningin Beatrix an appropriate distance upwind of Mr Davis. Instead, Captain
Williams manoeuvred Koningin Beatrix so that Mr Davis was dangerously close to the ship's starboard side whilst the
vessel still had some way on. The vessel's way was taken off by going astern, thus bringing Mr Davis up towards the
starboard bow. This caused Captain Williams to "zero" (ie shut down) her bow thrusters and, as a result, Koningin Bea-
trix developed an "uncontrollable" swing to starboard as or shortly after Mr Davis disappeared from view under the
flare of the bow. The time was then about 1234. The course recorder trace shows that Koningin Beatrix was under way
and turning to starboard from a heading of about 204[#176] at 1232 to one of 288[#176] at 1234 before stabilising for a
very short time and then swinging "uncontrollably" to about 313[#176]. When Mr Davis came into view again at about
1240 he was on the port side of the vessel, face down in the water and apparently lifeless. Once it was apparent that Mr
Davis was lifeless, Captain Weale abandoned his rescue attempt and proceeded to shut the pilot door.
    97. It was therefore in the six minutes or so that elapsed after he passed out of view beneath the flare of the star-
board bow in good condition (about 1234) and his emergence on the port bow face down and apparently lifeless (about
1240), that Mr Davis met his death by drowning. These final and critical moments of the attempted rescue were the
subject of the following important agreement between Captain Beetham and Captain Jubb:13. Crossing the bow
        In the prevailing conditions the manoeuvring of the vessel without any fixed reference would be extremely diffi-
cult.
     We agree that the man overboard came too close to the starboard bow, necessitating the shut down of the bow
thrusters. The vessel was probably moving astern and took an uncontrollable swing to starboard, bringing the man
overboard across to the port bow.
        MJJ and EHB agree that the likelihood of contact with the bow is remote.
     98. There was no evidence as to engine orders or the vessel's speed through the water during the period of Captain
Williams's final approach. However, the course recorder trace does give important information with regard to both
course and time (after appropriate adjustment). Having regard to this information, the agreement reached by the experts
and the evidence of the various eyewitnesses, I am satisfied that the principal sequence of events in the period imme-
diately leading up to Mr Davis's death were as follows.
     (1) Mr Davis was first spotted from Koningin Beatrix at about 1229 at a distance of about 350 to 400 metres from
the ship. Shortly afterwards, at about 1232, Koningin Beatrix started to turn 90[#176] to starboard.
    (2) Mr Davis was about 4 or 5 points (perhaps even more) off the starboard bow both before and in the very early
stages of the vessel's 90[#176] turn to starboard. He was in good condition, treading water, riding the waves and, from
time to time, waving either one or both arms.
    (3) The effect of Koningin Beatrix's 90[#176] turn to starboard was to bring Mr Davis much finer on to the star-
board bow.
    (4) Koningin Beatrix still had considerable way on and Mr Davis passed down the starboard side going aft of the
beam, close enough for a crew-member (Emyr Williams) to shout encouragement down to him. A report reached the
bridge that the man overboard was "astern" or "by the stern". Mr Lewis wrote this down on a scrap of paper and it was
eventually recorded in the log.
     (5) By this stage Koningin Beatrix had been put astern, with the result that Mr Davis moved back up the starboard
side until he disappeared from view under the flare of the bow. He was then off the starboard bow and very close to it.
He was still in good condition when he passed out of view.
     (6) At 1234 Koningin Beatrix signalled, "We are preparing to open pilot door to try and assist Celtic King prepar-
ing to launch lifeboat".
     (7) As Mr Davis disappeared from view under the flare of and because of his extreme proximity to the bow, Cap-
tain Williams "zeroed" the bow thrusters. Unfortunately, this resulted in an uncontrollable swing of the bow to starboard
                                                                                                                    Page 24
                                                 [2005] 2 Lloyd's Rep 13


as the wind took full effect on it. At 1238 the Koningin Beatrix signalled, "Have lost sight of casualty. . .right under-
neath our bow. . .Trying to get line to him now".
     (8) As a result of the bow swinging over and past him, Mr Davis appeared to have moved from the starboard to the
port side. When he did come into view on the port side, Mr Davis was face down in the water and apparently lifeless.
     (9) Once it became apparent that Mr Davis was lifeless, Captain Ganderton decided that he was no longer prepared
to risk his crew by launching Celtic King's fast rescue boat and, at 1242, Celtic King signalled "Not prepared to risk my
men".
     99. Despite his considerable experience and skills as a ship handler, I have come to the conclusion that Captain
Williams's manoeuvres as he made his final approach to Mr Davis fell significantly short of what were to be expected of
a reasonably competent and prudent master mariner and was therefore negligent. Instead of adopting the standard me-
thod of approaching a man in the water by manoeuvring his vessel an appropriate distance upwind, stabilising it and
then making leeway down towards the casualty, Captain Williams went dangerously close to Mr Davis too quickly and
had him close alongside whilst the vessel still had way on, making it necessary to go astern. This directly led to the need
to stop the bow thrusters when Mr Davis came dangerously close to the bow, with the result that control of the bow was
temporarily lost and it swung to starboard very close to and above Mr Davis. All these problems (and the resulting se-
rious danger to Mr Davis) resulted from the failure of Captain Williams to manoeuvre his vessel in the standard manner
suggested by the two maritime experts. In my view, the direct consequence of these negligent manoeuvres was that Mr
Davis was faced with a significant change in the sea conditions that he had to cope with and, as a result, he drowned
(see paras 100 to 103 below).
     100. I accept Mr Kverndal's submission that as Mr Davis came close to the bow of the ship, which then proceeded
to swing very closely over and across him, he moved from a particular sea state, in which he had been surviving and
with which he had been coping very well for almost 50 minutes, into a more hazardous and terrifying situation. The sea
state close to the ship's hull (ie within five metres) was confused, with secondary and tertiary waves or wavelets and
"splash-back" or "lop", all caused by waves meeting and rebounding from the ship's hull combined with the pitch and
roll of the ship in the heavy seas. This confused sea state was more pronounced on, but not confined to, the windward
side of the vessel (the port side). I have no doubt that the sea state in the immediate vicinity of the bow was particularly
confused as the vessel surged and pitched heavily in what was, in effect, a head sea.101. I therefore accept Mr Kvern-
dal's submission that the evidence shows (as commonsense would suggest) that the sea state in the vicinity of Koningin
Beatrix's bow and extending out for at least five metres was very confused, with rebound waves, interference patterns,
short spiky seas, white water, splash-back and spray. I also accept his submission that for a man in the water, passing
close under the bow of Koningin Beatrix, as it swung though 25[#176] for a distance of approximately 50 metres and
with a relative height of six metres, would have been a truly terrifying experience.
     102. As Dr Golden explained, the relatively small high-frequency waves to be found in the type of confused sea
that Mr Davis entered as he came close to the ship's hull lack the energy to lift a human body in the water and thus can
surge up and around the mouth, causing particular difficulty in breathing. A man's "freeboard" in the water is so small
that waves or wavelets of this type can cause considerable problems to the man in the water, particularly if he is unable
to keep his back to them.
     103. I have no doubt that Dr Golden was right in his view that the cause of Mr Davis's drowning was the significant
change in the sea conditions that he had to cope with, brought about by his proximity to Koningin Beatrix, particularly
as he passed under the flare of her bow. In my view, Mr Davis probably started to drown in the very confused sea that
he met as he passed under Koningin Beatrix's bow as it swung to starboard. I have no doubt that the sight of the bow
plunging heavily right next to him would have been absolutely terrifying and probably led to feelings of panic, thus
greatly reducing his ability to cope with the change in conditions. I am therefore satisfied that Mr Davis drowned be-
cause the change in wave conditions close to the ferry and the terrifying nature of the close encounter with the ship's
bow materially prejudiced his ability to keep his airways clear, with the result that he was unable to avoid the inhalation
of the water that led to his drowning by the time he re-emerged into view on the port side of the vessel.
     104. As I have already indicated, Mr Davis's condition when first spotted was such that he would have survived for
long enough to be rescued by either Celtic King's fast rescue boat (ie until about 1245) or the helicopter R116 (ie until
about 1300). In my view, his death by drowning was caused by the change in conditions with which he was faced as the
result of Captain Williams's decision to try and retrieve him to Koningin Beatrix and the manner in which he put that
decision into effect.
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                                                 [2005] 2 Lloyd's Rep 13


    105. At about 1254, the rescue helicopter R116 arrived on the scene. By 1300 the helicopter's winch man, Alan
Gallagher ("Mr Gallagher"), had succeeded in recovering Mr Davis's body from the sea. At 1315, the helicopter landed
at Wexford hospital with Mr Davis's body on board. At 1605, Mr Davis was formally pronounced dead, following a
prolonged and unsuccessful attempt at resuscitation by the hospital's medical team.
      106. On the same day, the MAIB was informed what had happened. The MAIB is a government agency charged
with investigating accidents at sea. The MAIB's fundamental purpose in investigating such an accident is to determine
its circumstances and cause, with the aim of improving the safety of life at sea and the avoidance of accidents in the
future. It is not the MAIB's purpose to apportion liability, nor, except so far as is necessary to achieve the fundamental
purpose, to apportion blame: see the Merchant Shipping (Accident Reporting and Investigation) Regulations 1999.
Having carried out its investigation into the incident, the MAIB published its report and recommendations in December
2001 ("the MAIB report").
     107. In my opinion, having regard to my own conclusions as stated in paras 65, 90 and 91 above, it is of some sig-
nificance that the recommendations in the MAIB report include the following:
    SECTION 4 - RECOMMENDATIONS
    Stena Line is recommended to:
    ...
    2. Amend its company standing orders and operational procedures manual, sections 3.9.2.1 and 3.9.2.2 to include
more detailed procedures to be taken in the event of a man overboard in conditions which do not allow the lowering of a
rescue boat.
    ...
    7. Undertake a written risk assessment regarding the use of the fast rescue boat and rescue boats in adverse weather
conditions.
    Conclusion
     108. For the reasons given in my findings of fact, I am satisfied that Mr Davis's death by drowning was caused by
the fault and/or neglect (ie the negligence) of Stena and Captain Williams in the various respects identified in the pre-
ceding paragraphs of this judgment (see, in particular, paras 60, 65, 73, 81, 82, 84, 86, 87, 90, and 97 above). Having
regard to those conclusions, which, as it seems to me, deal with the main allegations of negligence in this case, it is not
necessary to prolong this already lengthy judgment by considering the other less significant allegations. Furthermore,
for the reasons given in paras 34 to 36 and 51 to 55 above, I am satisfied that Mr Davis's death was not caused by any
fault or neglect on his own part. There will be judgment for the claimant accordingly.

DISPOSITION:
    Judgment accordingly.

SOLICITORS:
    Holmes Hardingham; Eversheds LLP

								
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