Warranties

31m to the investors in films, and sought recovery against the reinsurers concerned. The insurance was a ‘pecuniary loss indemnity’ insurance. The peril insured was the risk that revenues from the films concerned would fail to reach the sum insured within a certain period. The insurance was designed to enable the investors, whose finance supports the production of the films, to recoup their investment. The slip policy contained a clause regarding the number of films to be made. Rix LJ said that the relevant term that ‘six film to be made’ was a warranty. His Lordship set out the questions to be asked in construing the relevant term that (1) whether it is a term which goes to the root of the transaction; (2) whether it is descriptive of or bears materially on the risk of loss; (3) whether damages would be an unsatisfactory or inadequate remedy. The six film term satisfied all three tests: it was a fundamental term, for even if only one film were omitted, the revenues were likely to be immediately reduced. Rix LJ noted that that will not matter if the revenues already exceed the sum insured, for in that case there can be no loss in any event. However, if revenues fall below the sum insured, the loss of a single film may be the critical difference between a loss or no loss, and will in any event be likely to increase the loss. The term bears materiality on the risk, again, for the same reason. Finally, a cross-claim would be an unsatisfactory and inadequate remedy because it would never be possible to know how much the lost film would have contributed to revenues.

A similar argument was tried by the insurers but rejected by Andrew Smith J in Project Asia Line Inc v Shone (The Pride of Donegal).⁸ It was contended that the term ‘The insurance provided cover in respect of bunkers and freight “per any vessel … classed with major classification society, not exceeding 20 years of age or held covered”’ was a warranty. Accordingly, as the insurer asserted, vessels are to be classed at the inception of, and shall remain in class throughout the voyage and this was either a warranty or a condition precedent⁹ to the insurers’ liability. Andrew Smith J rejected the argument reasoning firstly that no words were identified which call for this interpretation and secondly, the words are prima facie concerned with the scope of the cover; there is no reason to give them any other import.¹⁰ The natural reading of the insurance contract is that the cover extended to vessels as long as they were classified by a major classification society.¹¹

Construction of warranties

Express warranties are often subject to the rules of contractual construction. As held in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)¹² and followed by the Courts consistently,¹³ the aim of contractual construction is to determine objectively what the parties intended by inserting the clause which is subject to the interpretation in the contract. The relevant term is construed within the context of the contract and when construing an agreement in order to ascertain the intention of the parties, the court must have regard not simply to the words used but to the commercial purpose which the contract was designed to fulfil.¹⁴

There are numerous cases illustrating the application of the rules of contractual construction in the context of marine insurance warranties. As seen above, the classification of a term as a warranty may be a matter of construction, and as will be analysed elsewhere in this chapter whether a warranty is continuing in nature, and the scope and meaning of a warranty may again be determined by application of the rules of contractual construction.

The following three cases illustrate the battle between literal reading and reading a warranty within the context of the entire contract. The first case is Brownsville Holdings Ltd v Adamjee Insurance Co Ltd (The Milasan)¹⁵ where the 90 foot motor yacht ‘MV Milasan’ sank by the stern in calm water and good weather about 25 miles off Cape Spartivento while in the course of a voyage from Piraeus to Puerto Cervo in Sardinia. Between May 1995 and July 1995, she had no professional skipper in charge of her. The Insurers alleged that this put the owners in breach of a warranty in the policy, which was in the following terms: ‘warranted professional skippers and crew in charge at all times’. This was held to be a promissory warranty that the assured promised that a state of affairs will exist at the time the policy is concluded and will continue to exist so long as the policy is operative. Another reason indicating that the warranty was of a continuing nature was that the insurers were concerned to ensure that the vessel was properly looked after all the time, both summer and winter, whether cruising or in a marina. Aikens J found that the words ‘professional skipper’ refer to a person who has some professional experience that qualifies him to be regarded as a ‘skipper’. The ‘skipper’ together with the ‘crew’ has to be ‘in charge’ of the vessel ‘at all times’. The last phrase was, according to Aikens J, quite clear: there must be a professional skipper and a crew that looks after the vessel the whole time, as opposed to intermittently or at intervals.

The assured was therefore in breach of the warranty during the period when there was no professional skipper on board the yacht to look after or ‘be in charge’ of her ‘all the time’ during that period. The yacht had an engineer on board and also a deckhand but Aikens J held that the requirements of the warranty were cumulative. Thus, the lack of a ‘professional skipper’ during this time put the assured in breach.

A similar warranty fell to be interpreted by Gross J in GE Frankona Reinsurance Limited v CMM Trust No.1400, The ‘Newfoundland Explorer’.¹⁶ The assured insured his yacht, under a policy which provided ‘Warranted fully crewed at all times’. The yacht was severely damaged by fire at the time she was laid up alongside a berth in the marina at Fort Lauderdale, USA. The fire was caused by the overheating of the generator. No crew members were aboard the vessel at the time of the casualty; the master was at home, some 15 miles and 30 minutes, away. The question was, on the proper construction of the contract of insurance, do the words ‘at all times’ in the warranty mean 24 hours per day? The judge held that the ordinary meaning of ‘crewed’ is by the crew performing such duties as are required on board. The natural result is that a vessel is not crewed if the crew is elsewhere. However, Gross J expressed two exceptions to this interpretation under which the crew might leave the yacht and the assured will not be in breach of warranty that (1) emergencies rendering his departure necessary (e.g. a bomb alert) or (2) necessary temporary departures for the purpose of performing crewing duties (e.g. adjusting moorings, working on a fouled propeller, or painting the outside of the hull) or other related activities. For instance in cases where one crew member suffices to comply with the warranty, leaving the yacht in order to purchase food or other supplies for the vessel will not amount to breach of warranty.

Gross J further explained that in terms of crew numbers, whether a vessel is ‘fully crewed’ or not must depend on what she is doing, whether the vessel will sail for an ocean voyage or be laid up alongside a berth. However, in any case, a vessel will not be crewed, let alone ‘fully crewed’ if no crew members are on board. Accordingly, Gross J said, ‘fully crewed’ must mean at least one crew member on board the vessel, whatever she is doing. Consequently, for the vessel to be ‘fully crewed at all times’ while laid up alongside a berth, there must be at least one crew member on board her 24 hours a day.¹⁷ ‘At all times’, according to Gross J, means what it says – the whole time, not some of the time.¹⁸

The Milasan and The Newfoundland Explorer were distinguished in Pratt v Aigaion Insurance Co SA (The Resolute).¹⁹ In The Resolute the assured insured his motor fishing trawler on the terms ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member’. There were four crew including the assured. The assured and his crew of three took the vessel out to fish for a day and returned to North Shields where the vessel was stationed alongside the quay. After preparing the vessel for fishing the next day all the crew left the vessel, one to go home, two to visit a pub some 200 yards from the vessel and one to meet a friend at a café. Shortly after the crew left the vessel a fire occurred caused by operation or malfunction of the deep fat fryer or the fridge. Not surprisingly, the insurer relied upon The Milasan and The Newfoundland Explorer.

In the view of Sir Anthony Clarke MR,²⁰ however, The Milasan did not assist here as it relates to a different clause in a policy which insures a very different type of vessel in different circumstances. Likewise, Gross J’s judgment in The Newfoundland Explorer was on a differently worded warranty in its own context.²¹ Sir Anthony Clarke MR explained that the natural inference from the wording of the clause is that an experienced skipper was to be on board and that the reason for that is that underwriters wanted protection from risks which a skipper would be needed to guard against.²² That suggests that the primary purpose of the warranty was to protect the vessel against navigational hazards.²³ The principal time when at least two members of the crew including the skipper would be required was when the vessel was being navigated, including when she was manoeuvring.²⁴ Consequently, ‘at all times’ was found by the judge to be an ambiguous phrase for not making clear what the extent of the qualification of the expressions should be. This led to the conclusion that the clause was to be construed contra proferentem, that is, against the insurer.²⁵ Anthony Clarke MR noted that the clause should have clearly stipulated that the insurer wanted them on board whenever the vessel was left, but it did not.

Present and continuing warranties

Warranties may be drafted in a variety of forms. Present warranties relate to the factual state of affairs existing at the date of the policy, while continuing warranties impose continuing obligations on the assured during the currency of the policy. The distinction between present and future warranties is not always easy to draw, but some guidance can be seen in the following cases. In Agapitos v Agnew (The Aegeon) (No.2)²⁶ the Aegeon, a roll-on roll-off car ferry which was to undergo conversion to a passenger cruise ship, was insured by Lloyd’s and company underwriters under a marine open cover for a period of six months from 9 August 1995. The cover included: ‘Warranted London Salvage Association approval of location, fire-fighting and mooring arrangements and all recommendations complied with.’ The Aegeon had Salvage Association approval at the inception of the risk, but this expired on 30 August 1995. A new certificate was issued by the Salvage Association on 14 December 1995 with effect from that date and to last for six months. Moore-Bick J rejected the assured’s assertion that this was a present warranty that was complied with at the inception of the risk, therefore there was no breach of warranty. Moore-Bick J construed the warranty by considering that it is often the case that underwriters who insure a vessel while laid up or undergoing conversion or repairs require as a condition of cover that the Salvage Association approve the vessel’s mooring and fire-fighting arrangements. The underwriters expect the owners to comply with any recommendations that the Association may make as to the precautions to be taken to guard against particular hazards. The judge emphasised that The Salvage Association’s ‘approval certificate’ is a formal document that certifies compliance with the warranty imposed by underwriters. Moreover, since any change of location or project has a direct bearing on the vessel’s mooring and fire-fighting arrangements, certificates are valid only in respect of the particular location and the particular project to which they refer. Thus, any change of location or project requires a new certificate. Consequently, Moore-Bick J held that while the Salvage Association’s approval was given for a limited period, there was no obvious reason why underwriters should impose a warranty of this kind at the date of inception, but be willing to allow the protection it provides to lapse within a matter of a few weeks. The warranty was to be construed as imposing a continuous requirement for Salvage Association approval which was broken by the assured after 30 August.

A similar issue came before Simon J in Eagle Star Insurance Co Ltd v Games Video Co (GVC) SA (The Game Boy)²⁷ the clause which was subject to construction was ‘Warranted approval of Lay-up arrangements, Fire Fighting Provisions and all movements by Salvage Association and all their recommendations to be complied with prior to attachment’, and was held to be a continuing warranty. The assured bought a vessel with the intention of using it as a floating casino. While the vessel was moored afloat at a shipyard in Greece, an explosive device was detonated at a point approximately 50cms below the waterline on the port side in way of the midships section of the hull. The explosion caused the hull plating to fracture and the resulting damage caused the vessel to list to starboard and to partially sink. The insurer denied liability for breach of warranty through a number of other defences, for example, breach of the duty of good faith. The Insurer’s case was that the assured warranted that all the Salvage Association recommendations in SA Certificate EMO 301/98 would be complied with, including the ongoing recommendations. They submit that two of the Ongoing Recommendations were breached. First, contrary to recommendation 13, there was no telephone available at all times. Second, contrary to recommendation 22, there was no security watchman in attendance at the entrance to the vessel at all times.

The judge²⁸ accepted the insurer’s submission. Simon J read the words prior to attachment as meaning that the assured warranted prior to attachment that they would comply with the Salvage Association recommendations made at the time of the attachment of the risk. But this did not mean that the assured was required to comply with the recommendation only prior to the attachment of the risk. Bearing in mind the commercial purpose of the clause, Simon J emphasised that the purpose of the clause was to ensure that the assured would comply with and continue to comply with the express terms of the Salvage Association’s recommendations throughout the period on risk. It would plainly have been a breach of warranty to remove all the fire-fighting equipment the day after the risk attached.

A recent example of the construction of a warranty was seen in Sea Glory Maritime Co, Swedish Management Co SA v AL Sagr National Insurance Co²⁹ in respect of compliance with the International Safety Management (ISM) Code. Blair J held that a documentary compliance sufficed to fulfil the ISM warranty of ‘Vessels ISM Compliant’. The judge pointed out that it is important to distinguish between compliance with the ISM Code, and compliance with the policy’s ISM warranty. With regard to the Safety Management Certificate section 13.7 of the ISM Code 2002 states that, ‘Such a Certificate should be accepted as evidence that the ship is complying with the requirements of this Code.’ The judge found that whilst it does not state that it is conclusive evidence of compliance, it does recognise that the holding of the certificate has at least evidential effect. A further contractual interpretation issue was the nature of the warranty. With a reference to The Game Boy, Blair J held that this was a continuing warranty for the reason that the parties could not have intended that the warranty would continue to be satisfied if the Safety Management Certificate was withdrawn after the inception of cover.

Implied warranties

The MIA 1906 implies warranties in marine insurance contracts. For instance, section 36(1) provides ‘Where insurable property, whether ship or goods, is expressly warranted neutral, there is an implied condition that the property shall have a neutral character at the commencement of the risk, and that, so far as the assured can control the matter, its neutral character shall be preserved during the risk.’ Moreover, section 39(1) implies a warranty of seaworthiness in a voyage policy and section 41 provides that ‘There is an implied warranty that the adventure insured is a lawful one, and that, so far as the assured can control the matter, the adventure shall be carried out in a lawful manner.’

In this chapter, due to its extensive application in the marine insurance industry the warranty of seaworthiness will be analysed.

Warranty of seaworthiness

Voyage policies

Section 39 (1) of the 1906 Act implies a warranty into voyage policies that at the beginning of the voyage the vessel shall be seaworthy for the purpose of the particular adventure insured. Seaworthiness is a relative concept³⁰ in that whether a vessel is seaworthy or not depends essentially on whether she is fit to meet the perils of the voyage upon which she embarks.³¹ The meaning of seaworthiness was discussed in Steel v State Line Steamship Co³² by Lord Cairns stating that ‘… the ship should be in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter’ along the route in question. His Lordship added ‘… the ship shall be reasonably fit for performing the service which she undertakes.’ The vessel’s state, as to repairs, equipment, and crew, and in all other respects, should, at the time of its sailing on the voyage insured, be fit to encounter the ordinary perils of that particular voyage.³³

A vessel is not seaworthy if she has insufficient fuel to enable her to proceed on her voyage,³⁴ or if the voyage requires a certain number of crew and if the shipowner employs less than that number,³⁵ or if the crew is not capable of properly using the fire-fighting equipment on the vessel.³⁶ Again, if the vessel was defectively designed and therefore not capable of withstanding the ordinary conditions of the voyage, the vessel will be unseaworthy.³⁷ Further, following the safety measurements implemented by the International Maritime Organisation the vessel must carry necessary documents for the voyage, that is to say those which may be ‘required by the law of the vessel’s flag or by the laws, regulations or lawful administrative practices of governmental or local authorities at the vessel’s port of call.’³⁸ Moreover, the inclusion of classification clauses in insurance policies is generally seen as a move towards ensuring improved standards of seaworthiness.³⁹ Thus, the fact that a vessel was in Class at the time of sailing on the voyage is of significant weight when considering whether she was seaworthy, particularly where the vessel has been surveyed and approved by Class shortly before sailing.⁴⁰

The obligation is not merely that the owners should do their best to make the ship fit, but that the ship should actually be fit.⁴¹ Compliance with a warranty of seaworthiness, express or implied, is a condition precedent to the underwriter’s liability for a loss.⁴² Therefore, the effect of the warranty is that if the vessel is not seaworthy the insurer is not liable for any loss or damage, whether or not that was proximately caused by the unseaworthiness.⁴³ Once there is a breach of a seaworthiness warranty the insurer can seek a remedy irrespective of whether the breach came about through fault or want of diligence on the part of the assured, or whether unseaworthiness is capable of being avoided.⁴⁴

It should be noted that the warranty attaches at the commencement of the voyage only and there is no implied warranty on the part of the assured for the continuance of the seaworthiness of the vessel, or for the performance of their duty by the master and crew during the whole course of the voyage.⁴⁵

To establish unseaworthiness, it is not necessary to identify the precise defect.⁴⁶ Eridania SpA (formerly Cereol Italia Srl) v Oetker (The Fjord Wind)⁴⁷ established that where a vessel suffers a serious casualty without any outside intervention, the natural inference is that there was something wrong with her which a prudent owner would have rectified if he had known about it.⁴⁸ This principle applies irrespective of the defect being one which can subsequently be specifically identified or is one which cannot be specifically identified but whose existence can be inferred from a propensity for failures to occur for unknown reasons and at unpredictable intervals. So long as such a defect actually exists, the risks involved in leaving it unrepaired are sufficiently serious to require remedial action to be taken before the ship proceeds farther.⁴⁹ In The Fjord Wind Clarke LJ noted that ‘seaworthiness is to be judged by reference to the realities of commercial life and does not require absolute perfection’.⁵⁰ In this case the vessel suffered crankpin bearing failures within a few hours of departing down the river Paraná from the loading port, Rosario. Moore-Bick J found and it was approved by the Court of Appeal that the vessel was unseaworthy when she left Rosario. The most telling evidence, which persuaded the judge of this conclusion, was the very fact that there was a failure of the No 6 crankpin bearing within a few hours of the vessel’s departure from the loading port.⁵¹ Moore-Bick J added that there was nothing to suggest that the conditions which the vessel encountered in the river were in any respect unusual or that the casualty was the result of any outside intervention.⁵² It was not possible to identify the precise cause of the bearing failure but the judge found the inference that there was a defect of some kind in the bearing itself or the lubricating system which rendered the vessel unfit to encounter the ordinary incidents of the voyage.⁵³

As stated above, seaworthiness has a relative meaning. The test of seaworthiness is to ask whether a reasonably prudent owner would have required that a particular defect, if he had known of it, be made good before sending the ship to sea.⁵⁴ It should be borne in mind that seaworthiness is concerned with the state of the vessel rather than with whether the owners acted prudently or with due diligence.⁵⁵ The only relevance of the standard of the reasonably prudent owner is to ask whether, if he had known of the defect, he would have taken steps to rectify it.⁵⁶ In The Fjord Wind Clarke LJ⁵⁷ found that a prudent owner, if he had been aware of the nature of the defect, would have taken steps to correct it rather than risk the consequences. This was held to be the relevant state of knowledge for the finding of unseaworthiness.

Section 39(3) provides that ‘Where the policy relates to a voyage which is performed in different stages, during which the ship requires different kinds of or further preparation or equipment, there is an implied warranty that at the commencement of each stage the ship is seaworthy in respect of such preparation or equipment for the purposes of that stage.’ As noted above, having insufficient fuel to enable the vessel to proceed on her voyage will render the vessel unseaworthy.⁵⁸ However, if the voyage is broken up into distinct stages, e.g. in a long voyage, for the purpose of fuelling, then the vessel must be made seaworthy at the commencement of each stage of the voyage, and the vessel must be supplied with sufficient fuel when starting on each stage.⁵⁹ The onus is on the shipowner to prove that he had divided the voyage into stages for, for example, fuelling purposes by reason of the necessity of the case, and that, at the commencement of each stage, the ship had on board a sufficiency of fuel for that stage. This makes for a convenient way of enabling the shipowner to fulfil his warranty by stages instead of once for all at the beginning of the risk.⁶⁰

Time policies

Under a time policy, there is no implied warranty of seaworthiness, either at the inception of the risk or on sailing.⁶¹ However, where the ship is sent to sea in an unseaworthy state with the privity of the assured, the insurer is not liable for any loss attributable to unseaworthiness.

The reason for non-existence of a seaworthiness warranty in time policies is historical. In Fawcus v Sarsfield⁶² it was argued by the insurers that on a time policy, if on the day on which the risk is to commence the ship be in a port in any region of the Globe in which there are the means of repairing her and rendering her seaworthy, there is an implied warranty or condition that she shall be repaired and rendered seaworthy before she sails from this port. This was argued to be the case although the assured may not know that she stands in need of repair, and although he may have no funds nor means of raising funds there to repair her. It was held in Fawcus that in time policies such a doctrine would be exceedingly inconvenient and would prevent shipowners from having that indemnity and security which time policies have hitherto afforded them. It is inconvenient when the risk begins while the ship is on the high seas: and a similar inconvenience would arise from the implied warranty of seaworthiness, the risk beginning when the ship, in the middle of a long adventure, is in a distant port. In Gibson v Small,⁶³ while rejecting the existence of such a warranty in time policies the Court emphasised the relative meaning of seaworthiness which may not be easily adopted for a time policy. Some of the questions that the court asked in Gibson v Small were: how will such a term apply in time policies, that is, policies independent of a voyage contemplated, begun, or to be renewed, which in its terms may embrace only a portion of one voyage, or portions of two voyages, or may include several voyages? Moreover, in that case, what degree of seaworthiness should exist at the commencement of the risk? To what use of the vessel should it relate? The vessel may be within a few days of concluding her homeward voyage from port X and may be about to proceed on a voyage to port Y. The latter voyage may not have been determined upon at the time of effecting the policy. What, in such a case, is to be the measure or test of the seaworthiness to be required at the commencement of the risk?

Thus, when the MIA 1906 was enacted, section 39(5) did not impose a seaworthiness warranty in time policies, however, it provided a remedy for a case in which a shipowner consciously sends his vessel to a voyage in an unseaworthy state. There are three elements that the insurer is required to establish in this defence under section 39(5).⁶⁴ First, there must have been unseaworthiness at the time the vessel was sent to sea. Second, the unseaworthiness must have been causative of the relevant loss. Finally, the assured must have been privy to sending the ship to sea in that condition. If one of these three requirements is missing the insurer is liable for the loss. It might be because the loss was caused by the perils of the sea, that is, not attributable to unseaworthiness or it might be because the assured was not privy to the unseaworthiness.⁶⁵ If the vessel sinks due to unseaworthiness it may be the case that fortuity is not proved thus the insurer may not be liable. In any case the causation, fortuity and perils of the sea will have to be considered.

Privity

The term seaworthiness was discussed above and causation will be analysed in Chapter 7. It is necessary here to explain the meaning of the word ‘privity’ which is another requisite for an unseaworthiness defence in a time policy. The following principles were established by the Court of Appeal in The Eurysthenes⁶⁶ and approved by the House of Lords in The Star Sea.⁶⁷ ‘Privity’ means ‘with knowledge and consent’. The assured loses his cover if he has consented to or concurred in the ship going to sea when he knew that it was in an unseaworthy condition. In many cases sending a ship to sea knowing it is unseaworthy will amount to wilful misconduct, but not necessarily so. ‘Privity’ therefore does not mean that there was any wilful misconduct by the assured, but only that he knew of the act beforehand and concurred in it being done. The assured must have knowledge not only of the facts constituting the unseaworthiness, but also knowledge that those facts rendered the ship unseaworthy, that is, not reasonably fit to encounter the ordinary perils of the sea. Knowledge includes positive knowledge as well as ‘turning a blind eye’. Turning a blind eye may be established in the case where the assured deliberately refrains from examining the ship in order not to gain direct knowledge of what he has reason to believe is her unseaworthy state. Blind-eye knowledge requires a conscious reason for blinding the eye. There must be at least a suspicion of a truth about which the assured does not want to know and which he refuses to investigate. Moreover, ‘privity’ does not mean that the assured himself personally did the act, but only that someone else did it and that he knowingly concurred in it. If it was a wrongful act done by his servant, then he was liable for it if it was done ‘by his command or privity’, that is, with his express authority or with his knowledge and concurrence. The knowledge must also be the knowledge of the shipowner personally, or of his alter ego, or, in the case of a company, of its head men or whoever may be considered their alter ego. But, if the shipowner satisfies the court that he did not know the facts or did not realise that they rendered the ship unseaworthy, then he ought not to be held privy to it, even though he was negligent in not knowing. In The Eurysthenes the Court of Appeal accepted the following as illustrative of the privity of the shipowner assured: If the owner of a ship says to himself: ‘I think a reasonably prudent owner would send her to sea with a crew of 12. So I will send her with 12,’ he is not privy to unseaworthiness, even though a judge may afterwards say that she ought to have had 14. He may have been negligent in thinking so, but he would not be privy to unseaworthiness. But, if he says to himself: ‘I think that a reasonably prudent owner would send her to sea with a crew of 12, but I have only 10 available, so I will send her with 10,’ then he is privy to the unseaworthiness, if a judge afterwards says he ought to have had 12. The reason being that he knew that she ought to have had 12 and consciously sent her to sea with 10.

The blind eye knowledge was alleged in The Star Sea but it failed on the facts. The insurer failed to prove any suspicion of the master’s incompetence in the particular respect which mattered. The Star Sea was a dry cargo vessel which belonged to the Kollakis group of companies. On 27 May 1990 the Star Sea sailed from Nicaragua bound for Zeebrugge laden with a cargo of bananas, mangoes and coffee. A fire started on the morning of the 29th in the engine-room workshop where the third engineer was using an oxyacetylene torch and it flashed back to the oxygen gas bottles. Attempts to use extinguishers on the fire were defeated by smoke. After about two and a half hours the master decided to use the CO₂ system. The actions then taken were not effective in putting out the fire and it continued to burn although for a while the crew thought it had been extinguished. The vessel had sent out distress calls but the first vessel to arrive departed during the afternoon because the crew thought that the fire was out and that they did not need further assistance. It then became obvious during the early evening that this was not so as the fire spread to the accommodation quarters. During the early hours of the following day a tug arrived and the fire was unsuccessfully fought the next day using the tug’s monitors. The fire was extinguished only at Balboa to where the vessel was towed on 1 June but the damage was so extensive that the vessel had become a constructive total loss.

The Star Sea was unseaworthy in a number of respects when she set sail from Corinto. The vessel was equipped with a CO₂ fire extinguishing system which, in principle, should have been effective to extinguish the fire, however, the master left to use the system until some two hours after the fire had started. The trial judge found that the failure to use the CO₂ earlier and the failure to use all 4 banks of bottles at once was attributable to the incompetence of the master. Moreover, the engine-room could not be sealed as the funnel dampers were in a defective condition and could not be fully closed. In the Court of Appeal Leggatt LJ said ‘an allegation that they ought to have known [is] not an allegation that they suspected or realised but did not make further enquiries’. ‘Accordingly,