Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd
[2002] VSC 549
•17 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
ADMIRALTY LIST
No. 7546 of 1997
| VLASONS SHIPPING, INC and ORS | Plaintiffs |
| v | |
| NEUCHATEL SWISS GENERAL INSURANCE CO LIMITED and ORS | Defendants |
---
JUDGE: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 and 11 December 2002 | |
DATE OF JUDGMENT: | 17 December 2002 | |
CASE MAY BE CITED AS: | Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd; the Aquarius Bright | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 549 | |
---
Shipping – insurance – typhoon exemption clause – whether master aware of typhoon warning – meaning of typhoon warning.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr Paul Willee QC with Mr G.G. McArthur SC | Phillips Fox |
| For the 2nd to 7th Defendants | Mr S.W. Kaye QC with Mr Danny Masel | Ebsworth & Ebsworth |
| For the First and Eighth Defendants | No Appearance |
HIS HONOUR:
At 1020 hours[1] on 26 October 1991 the vessel Aquarius Bright left the port of Shanghai bound for Bangkok with a cargo of steel billets. The weather was good with a blue sky, sunshine, moderate sea and a northerly force 3 wind. Once clear of the port she headed south running parallel to the China coast into the Taiwan Strait. On the evening of 27 October, the weather began to deteriorate and this continued through the following morning. These conditions were brought about by the approach of a typhoon called Typhoon Ruth. The master, Captain Bienvenido Yap Sampan, sought to make for a safe harbour at Taichung on the west coast of Taiwan Island but was unable to do so due to the force of the wind and the sea. He then sought shelter in the Pescadores Islands in the Taiwan Strait but, at about 1900 hours, the vessel fetched up violently on rocks near those islands. Shortly after she broke into three pieces and was a total loss. The master and all of the crew were rescued. No ship’s papers, logs or charts were saved from the vessel.
[1]All times in this judgment are given in local Shanghai time unless otherwise indicated. This time is UT+8 hours.
In this proceeding the plaintiffs sue nine underwriters under a Companies Combined policy of Marine Hull and War Risks Insurance dated 31 March 1991. The firstnamed plaintiff, Vlasons Shipping, Inc, was the manager of the vessel, the secondnamed plaintiff, St Paul Shipping, Inc, its owner and the thirdnamed plaintiff, First Pacific Bank Ltd, its mortgagee. The mortgage has since been discharged and on 31 May 2002 the mortgagee discontinued its proceeding. Counsel for the plaintiffs told me that his clients do not assert that Vlasons, as manager of the vessel, was entitled to judgment should the claim be successful. Under the policy, the nine underwriters are liable each for its own share. The eighthnamed defendant, HIH Casualty and General Insurance Ltd, is in liquidation and the proceeding against it is accordingly stayed. The firstnamed defendant Neuchatel Swiss General Insurance Co Ltd did not appear at the trial. The remaining seven defendants defended the trial.
Under the policy, the agreed value of the hull, machinery and equipment was US$2M. There was no issue about the loss. The sole question raised in this proceeding concerned the applicability of a typhoon clause in the policy which is in the following terms:
“Notwithstanding any provision of this Policy to the contrary, it is hereby expressly stipulated and made a condition herein that the insured vessel shall not be allowed to sail or put out of port when there is a typhoon or storm warning either at the port of destination or between the said port. Violation of this condition shall render the Policy NULL AND VOID.
However, should the vessel have sailed out of port prior to such warning, this warranty should no longer apply.”
This term has been the subject of consideration by the Court of Appeal in its judgment in another proceeding between the same parties given on 27 March 2001, arising out of the loss of the Biyayang Ginto in similar circumstances on 16 August 1991[2]. Although the observations of the Court of Appeal as to the meaning of the typhoon clause in that case were obiter, I shall endeavour to apply them in this case.
[2]Neuchatel Swiss General Insurance Co Ltd v Vlasons Shipping Inc [2001] VSCA 25.
The Court of Appeal construed the clause so that it applied only where the master or other person or persons responsible for allowing the vessel to sail had actual knowledge of the relevant typhoon or storm warning at the time the vessel put to sea[3]. These warnings are defined in the operational manual of the Typhoon Committee of the World Meteorological Organisation as follows:
[3]Per Ormiston JA at [34]-[35], Callaway JA at [64], Batt JA at [66].
Storm warning
Meteorological message intended to warn those concerned of the occurrence or expected occurrence of average wind speeds in the range of 48 to 63 knots or windforce 10 or 11 in the Beaufort scale.
Typhoon warning
Meteorological message intended to warn those concerned of the occurrence or expected occurrence of mean wind speeds of 64 knots or higher, or wind force 12 in the Beaufort scale.
I accept that, in a document such as the present, these expressions should bear these meanings. The Court of Appeal also concluded that the warnings referred to in the clause were predictive. The clause operated where, at the time of sailing, the vessel pursuing its projected voyage encountered the area shown in the warning to be the location where storm force winds were then expected to be found.
The underwriters contend that the master had received such a warning: it was contained in each of the following two pieces of meteorological information issued periodically by the Japan Meteorological Agency (“JMA”) namely surface analysis reports and weather forecasts.
Surface Analysis Reports
These reports take the form of synoptic charts of the area in question showing barometric pressures at different locations at a particular time. They may, as in the present case, show not only the characteristic pressure pattern of a cyclonic system, but also its name and its meteorological description. They do not in terms contain a warning or a forecast of any kind.
Each of the reports is a snapshot of the conditions at the time of reporting. From the bundle in evidence, it appears that they are issued at 12-hour intervals at 0800 hours and 2000 hours each day. The evidence shows that they are transmitted by facsimile. It is common ground that the vessel in this case received such a report transmitted at 0800 hours on each of 24 October 2001, 25 October 1991 and 26 October 1991.
The point here in issue is whether these reports, individually or collectively, should be characterised as a typhoon warning and whether they showed the estimated storm wind system encountering the projected voyage of the vessel.
Weather Forecasts
These bulletins were issued in morse code and could be received by wireless telegraphy, provided the ship’s radio was operating and, perhaps, tuned to the appropriate frequency. It was suggested to Captain Sampan by counsel on behalf of the underwriters that these bulletins were also transmitted by facsimile but the witness did not agree. Indeed, no witness spoke of this means of transmission for weather forecasts and I do not find that they were transmitted by facsimile.
The forecasts were issued periodically every six hours. Forecasts in evidence were those issued from 0200 hours on 22 October 1991 to 0200 hours on 27 October 2001. They include information prefaced by the expressions “typhoon warning”, “gale warning” and “storm warning”, and also warnings of dense fog. I should add that, in marine meteorological parlance, a gale is an occurrence where the wind speed is 30 knots or thereabouts, so that it is a less severe cyclonic system than a storm.
With respect to each of the gale warnings, storm warnings and typhoon warnings, the forecasts contain the co-ordinates of the present position of the cyclonic system in question, and its direction and speed of movement. They also give the present maximum wind speed at the centre of the system and the radius of the area within which the wind velocity exceeds 50 knots and 30 knots respectively. The 50 knot radius would then describe the area within which the occurrence of storm force winds was expected.
The forecasts are said to be valid for 24 hours notwithstanding that they are updated more frequently by subsequent forecasts. They also contain a statement of the expected maximum wind speed of the cyclonic system for the next 24 hours and a forecast of its position in 24 hours and again in 48 hours from the time of issue of the bulletin. Given the inevitable uncertainties involved in the prediction process and, in the present case, given the notoriously erratic behaviour of typhoons, these forecasts are expressed as having a zone of uncertainty expressed in miles radius.
Zone of Uncertainty
The meaning of these zones of uncertainty was explained by Greg Joseph Holland, a meteorologist with a particular interest and expertise in tropical cyclones. Dr Holland described the zone as an allowance for an estimate of potential error in the forecast position of the cyclonic system which, in the case of a 48-hour forecast, is typically 200 miles. He said that the plotted future location in the forecast is the best professional estimate of the forecasting agency, but there is a reasonably equal probability of it being in another location anywhere within the circle represented by the 200 mile radius of uncertainty centred on the plotted position. He characterised this probability as 70 percent to 80 percent. He accepted that this probability decayed as one moved from the plotted position, but maintained that it was relatively constant within the zone of uncertainty until the edge of the zone is reached when it drops off quite quickly. He likened this to the bell curve of a normal distribution analysis.
The latest forecast issued before the vessel left port in Shanghai was that issued by the JMA at 0800 hours. It was common ground that this bulletin contained a typhoon warning with respect to Typhoon Ruth. This bulletin gave the position of the typhoon as being 17.5 degrees north, 127.6 degrees east, east of the Philippines moving west north-west at 10 knots with maximum winds of 115 knots near the centre. The radius of over 50-knot winds was given as 170 miles. The bulletin then gave a forecast 24-hour position “with uncertainty of 100 mile radius” and a forecast 48-hour position “with uncertainty of 200 mile radius”. As explained by Dr Holland, I take this to mean that the agency’s forecast location of the centre of the typhoon is at the plotted position at 0800 hours on 28 October 1991 with storm force winds expected anywhere within a radius of 170 miles of that position. The JMA accepted, however, that the typhoon might move otherwise than predicted, but that there was a high probability that such variance would not exceed the circle of 200-mile radius centred on the predicted position. This means that there was a high probability that the centre would then be at some point within that 200-mile circle.
All of this was not in controversy. What was in issue with respect to the weather forecasts was whether the master or other person responsible for the vessel putting to sea at 1020 hours on 26 October 1991 knew of them. If yes, the further question arose whether, as a matter of construction, the typhoon clause had the effect of avoiding the policy where the projected voyage encountered the area of expected storm force winds within the radius of 170 miles from the plotted 48-hour position of the centre of the typhoon, as the plaintiffs contended, or whether the policy was avoided when the projected voyage encountered this area of expected storm force winds within a 170 mile radius from any point within the 200 mile zone of uncertainty centred on the plotted 48-hour position, as the underwriters would have it.
The Master’s Knowledge of the Weather Forecast
It was put on behalf the underwriters that the master of the Aquarius Bright, Captain Sampan, was aware of the JMA weather forecast issued at 0800 hours on 26 October 1991. It was not put that any other person responsible for putting the vessel to sea had the relevant knowledge. Moreover, it was accepted on the authority of the Court of Appeal decision regarding the Biyayang Ginto[4], that it was necessary to show that he had actual knowledge of the weather forecast[5].
[4]Neuchatel Swiss General Insurance Co Ltd v Vlasons Shipping Inc [2001] VSCA 25.
[5]It was not suggested that this was a case of wilful blindness as was mentioned by Callaway JA in that case: [2001] VSCA 25 at [64].
Captain Sampan gave evidence that he was not, prior to sailing, aware of this forecast nor, indeed, of the preceding JMA forecasts. The ship had arrived in Shanghai on 14 October 1991 and remained there until it sailed 12 days later on the morning of 26 October 1991. During the time it was in port, the vessel’s wireless telegraphy (WT) radio was unavailable to receive morse code messages since Chinese regulation at that time prohibited its use. Communication to the ship was limited to VHF radio, which had a limited range of a few miles, and incoming weather facsimiles transmitted to shipping by the JMA. Captain Sampan who spoke from time to time by telephone in Shanghai with Danny Shan Tse Yong, a director of Northern Star Shipping Co Ltd in Hong Kong (“Northern Star”), said he neither sought nor was given information from Mr Shan as to weather forecasts. Mr Shan also said that he had no knowledge of any typhoon warnings and he did not speak of them with the master during their conversations.
Captain Sampan said he received from the JMA daily weather facsimiles. These comprised the weather map of the region but not forecasts or formal warnings. He identified one such facsimile which is shown as having been issued at 0800 hours on 26 October. It is a surface analysis report of that date. A number of these facsimiles were in evidence issued between 22 October and 29 October. Captain Sampan said he received one of them at about 1030 hours on the morning of each of the 24th, 25th and 26th October. It was assumed before me that the last of these was received prior to sailing. Each of them shows the location of Typhoon Ruth east of the Philippines. According to the witness, this was the only meteorological information with respect to the typhoon which he had when he left port.
His evidence upon this was the subject of attack. Two weeks after the casualty he was interviewed by a representative of Messrs Ince & Co, Solicitors and Notary Public of Hong Kong. This interview was organised by Northern Star to enable the insurance claim to be submitted. A signed statement was taken from Captain Sampan. This included the following:
“When we sailed from Shanghai we had received a gale warning which, in itself would not have been sufficient to prevent us from sailing and I also knew that typhoon 'Ruth' was in the vicinity of the Philippines which I had been plotting as it was possible that it would cross our intended course in the South China Sea. When in port the Radio Officer obtains a single weather report at about 10.30 am (ship's time) and I had been plotting 'Ruth' for about 3 days."
The significance of the reference to the gale warning in the first sentence is that such a warning was not contained in any of the three facsimile surface analysis reports which Captain Sampan said in his evidence was the only meteorological information he received before sailing.
In its report to Northern Star dated 25 November 1991 Ince & Co states as follows:
“While in port the vessel received weather reports at about 10.00 a.m. each morning and for the three days prior to sailing warnings of typhoon ‘Ruth’ were received and plotted on a small scale chart. In addition the vessel received a gale warning for the local area.”
It may be supposed that this part of the report was wholly or largely based on the information then obtained from Captain Sampan, again including a reference to a gale warning.
Third, the plaintiffs were interrogated as to the meteorological information received by the master prior to sailing. A director of Vlasons, Vicente P. Angliongto, Jnr, swore answers to interrogatories on 12 February 2002 and further answers on 10 May 2002. The relevant interrogatories and the final answers were as follows:
"1.Look at the admission contained in paragraph 15 of the Plaintiffs' Reply (that at about 10.20 local time on 26 October 1991 the vessel Aquarius Bright set sail from the port of Shanghai bound for Bangkok) and say:
(a)Whether at any time over the period from 20 October 1991 to 10.20 hours Shanghai time on 26 October 1991 the Plaintiffs, their servants, agents, the Master or Crew of the Aquarius Bright had received any warnings, information or reports regarding Typhoon Ruth and/or a storm warning and/or a gale warning and/or any weather forecast?
Answer: Yes
(b)Whether the Plaintiffs, their servants, agents, the Master or Crew of the Aquarius Bright had received over the period 20-26 October 1991 any weather forecasts or synoptic charts from the Japan Meteorological Agency which had been sent by facsimile?
Answer: Yes
(c)Whether the Plaintiffs, their servants, agents, the Master or Crew of the Aquarius Bright had heard over the period 20 October 1991 until 1020 hours, Shanghai time on 26 October 1991 any warnings, messages or forecasts broadcast by Japan Radio regarding Typhoon Ruth or any tropical storm or any forecast regarding weather conditions?
Answer: No
2.If yes to any part of 1, give the usual particulars of the warnings and/or information and/or forecasts and/or messages.
Answer:The ship received information on a regular basis by facsimile from Japan. I am not aware that any of the facsimiles printed out on the ship at the time are still in existence. To the best of my knowledge, information, and belief, one facsimile a day was received from the Japan Meteorological Agency at approximately 1030 ship’s time. This comprised a general weather forecast for the region, and contained a reference to ‘Typhoon Ruth’.
3.If yes to any part of 1, did the Plaintiffs, their servants, agents, the Master or Crew of the Aquarius Bright (the ship) plot, chart or track the anticipated course of Typhoon Ruth or any storm?
Answer: Yes
4.If yes to 3, give the usual particulars of the plotting, charting or tracking.
Answer:The Master, the Second Officer, and the Radio Officer examined the incoming information and marked up the relevant chart or charts with the forecast track and actual track of the typhoon. The charts were ordinary navigational charts, but I am unable to further identify them, as all charts were lost with the vessel.
5.In October 1991 was there a weather facsimile receiver on the Aquarius Bright?
Answer: Yes
6.If yes to 5, were any synoptic charts received by means of the weather fax receiver over the period 20-26 October 1991.
Answer: Yes.
7.If yes to 6, give the usual particulars of the synoptic charts that were received.
Answer:I refer to my answer to interrogatory 2. To the best of my knowledge, information, and belief, the daily forecast referred to included a synoptic chart.”
The inclusion in the answer to interrogatory 2 of a reference to “a general weather forecast” could not be taken as a reference to the surface analysis reports because they contain no forecast.
Mr Angliongto who gave evidence, said that he made the answers believing them to be true. He had, however, no personal knowledge of these matters and made no enquiry himself. The information was gathered by the lawyers, he said. Notwithstanding this, I take these answers to be an informal admission made by each of the plaintiffs.
These statements were put by counsel for the underwriters to Captain Sampan, who was the actual or likely source of the information contained in them, to show that he was in error in asserting that he received no JMA weather forecasts in the days before the vessel sailed. It was put that the synoptic charts contained no gale warning so that he must have had other meteorological information. The witness steadfastly maintained that, prior to sailing he had no meteorological information regarding Typhoon Ruth other than that contained in the surface analysis reports. He said that he received a gale warning after he left port, but not before. On behalf of the ship owner, it was pointed out that, if true, the reference by Captain Sampan in his earlier statements to his receipt of a gale warning did not indicate that he had the JMA weather forecasts before sailing because, in none of them was there a gale warning affecting this area. In the Ince & Co report of November 1991 there is a later reference to forecasts of gales north of the Taiwan Strait for 27 and 28 October 1991 and it may be that it was these to which the witness was referring.
My attention was drawn, too, to the fact that the answers to interrogatories to which I have referred were the second set of answers provided. The earlier answers were challenged as insufficient. It may be taken, therefore, that the further answers were drawn with more than usual care. Even so, they speak of a weather forecast which Captain Sampan says he did not receive. Nor was any evidence called to explain how it was that the discrepancy was due to some cause other than a discrepancy in instructions.
Finally, it was pointed out that the second of the three reasons offered by Captain Sampan in his witness statement for his confidence that it was a safe and proper decision to put to sea was that he had information received by facsimile from JMA which showed that Typhoon Ruth was virtually stationary. This is a remarkable statement. No information of the kind or JMA facsimile was produced showing that the typhoon was then virtually stationary. The fact was rather the contrary; it was moving at a rate of some 10 knots. Moreover, this reason was not mentioned in his statement made to Ince & Co soon after the casualty. At that time he said that he was monitoring the movement of the typhoon as “it was possible that it would cross our intended course”.
I should add that I was not invited on behalf of the underwriters to draw any adverse inference by reason of the plaintiffs’ failure to call as witnesses the Second Officer and the Radio Officer referred to in the answer to interrogatory 4.
The issue presently under consideration is not whether Captain Sampan had knowledge of a gale warning or, indeed, of other meteorological information; it is whether he had the weather forecast issued by the JMA. There is no evidence that he did.
In the light of the powerful attack on his credit based upon the prior inconsistent statements, I had particular regard to the manner in which Captain Sampan gave his evidence. I observed him carefully in the witness box. He impressed me as a man trying to give an honest account of traumatic events of some 11 years ago. I observed that his understanding of English was imperfect in certain respects as was his expression. On balance, I accept his evidence that he did not have the JMA weather forecasts when he left port on 26 October. Accordingly, nothing in them can activate the typhoon clause.
The Effect of the JMA Weather Forecasts on the Policy
It is therefore not necessary for me to determine the secondary question, whether the 48-hour prediction of the location of the typhoon contained in the JMA weather forecast of 0800 hours on 26 October 1991 did in fact activate the typhoon clause. Nevertheless, in case this matter may go further and in deference to the submissions of counsel on the point, I will venture my views.
As the evidence turned out, this question resolved itself to the issue whether it is appropriate to enlarge the 48-hour storm wind area by adding to it the zone of uncertainty. The consequence of including this zone, as counsel for the underwriters contended, is that the projected route of the voyage would intersect the 170 mile storm wind area. So much was accepted on behalf of the plaintiffs. Equally was it accepted that, if the zone were not included, no such intersection would occur.
I should underline at the outset, because some of the evidence was directed to this, that my task is not to reach conclusion upon the question whether it was right and proper or even prudent, in terms of the safety of his ship and crew, for the master to have commenced his voyage when he did. It is rather to construe the typhoon clause and to give effect to it. This clause operates “where there is a typhoon or storm warning either at the port of destination or between the said port” at the time when the vessel puts to sea.
In undertaking my task, I have the benefit of the views, albeit obiter, of the Judges of Appeal in the Biyayang Ginto case. Ormiston JA, who delivered the leading judgment, accepted that a warning of the type referred to in the typhoon clause might include a 48-hour prediction of the location of the cyclonic system[6]. His Honour considered arguments based on the difficulty in attempting to determine whether the vessel in the future might encounter the typhoon. Each of them is moving or is projected to move in a known path but this may be subject to unexpected change in direction and speed. At para. [51] his Honour addressed the present question and I venture to set it out in full:
“There is, it must be conceded, a further difficulty upon which the learned judge and the respondent placed heavy weight in order to show that future warnings were not covered. That arises because the forecast path of any storm must have a further element of uncertainty in it. Of course, both the ROHK and JMA warnings gave precise positions, in a sense, for both their 24 and 48 hour warnings. The ROHK warning did not refer to the possibility of any deviation but the JMA warning did, in the case of the 24 hour warnings being expressed to have an 'uncertainty of 90 miles radius' and, in the case of the 48 hour forecast position, expressed in terms of an 'uncertainty of 180 miles radius'. This was described as creating a 'cone' effect or an area of expected occurrence which would spread wider, as time passed, in a way which could only be mapped in the form of a cone. This was said by the respondent to create too much uncertainty such as would affect a voyage which might pass temporarily through such a zone although the voyage might be in a 'different direction' and therefore, because of timing and other factors, might be realistically outside any real risk. For the purpose of this condition, however, the forecast warnings must refer to mapped positions, the element of uncertainty being merely an indication to mariners that forecasting of this kind has its necessary element of uncertainty. For practical purposes, however, the path of the storm should be taken as an area or zone following the forecast mapped positions and extending on each side 20 or 30 miles according to the radius then existing (or forecast) of winds which satisfy the tests for severe storms or typhoons. Although that may not be necessarily a straight zone, the area affected could be understood and worked out by a master at the relevant time with reasonable certainty, upon which he might be expected to act. It should be remembered that, in the end, the master will not be so much influenced by the condition in the policy as by the practical dictates of seamanship and an appreciation of risks that a master would not ordinarily run as a matter of commonsense. ”
[6][2001] VSCA 25 at [46].
I gratefully acknowledge the assistance of, and respectfully adopt, his Honour’s reasons which were endorsed by the concurrence of Batt JA[7]. The consequence of this is that, even if the master was aware of the JMA weather forecast, the projected path of the voyage did not cause the vessel to encounter the predicted location of the storm force winds. The typhoon clause in such a case would not operate to avoid the policy.
[7][2001] VSCA 25 at [64]. Callaway JA did not deal with this matter.
The Surface Analysis Reports
Accepting that these reports do not in terms contain a typhoon warning, counsel for the underwriters submitted that, individually, each of the three facsimiles which Captain Sampan acknowledged having received, warned him as at the time of its issue of the existence, location and severity of Typhoon Ruth including, by reference to the scale on the report, its likely wind speed. Furthermore, his possession of all of the three reports enabled him to know the speed and direction, at that time, of the typhoon. From this, it was put, he could calculate the area affected by storm velocity winds and predict its future location.
Captain Michael John Leslie Bozier, an experienced marine surveyor, undertook this calculation. Given the barometric pressure shown in the latest chart, he estimated the radius of the area affected by storm force winds to be 170 miles. On his chart 4509(3) he plotted the 48-hour position of the system on the assumption that it maintained its previous mean speed of 10 knots and its previous direction. He concluded on this basis that the vessel, following its projected voyage, would be within the 170 mile storm force wind area at 1700 hours on 28 October 1991 and that she would be at the centre of the typhoon at 0500 on 29 October 1991. With respect to this latter conclusion, I observe that the JMA does not venture a prediction beyond 48 hours.
Captain Bozier then made a similar calculation on the basis that the typhoon deviated north 30 degrees from its position shown on the surface analysis report issued at 0800 on 26 October. He assumed that it then continued in this new direction at the previous speed. On this basis, the vessel pursuing its projected voyage would have encountered the 170 mile storm force wind zone of the typhoon some time prior to 0800 hours on 28 October 1991.
What was put in answer to this was that the typhoon clause does not contemplate such an exercise involving judgment on the part of the master based on experience of the behaviour of these cyclonic systems. It will be recalled that the clause requires an assessment to be made at the time of sailing of the likely behaviour of the typhoon and its proximity to the vessel, assuming she follows her projected voyage. It may be supposed that no competent master would put to sea in circumstances where he or she expected that the vessel would encounter a typhoon, so that the clause seeks to protect the underwriters from the claim where the master, having received an applicable typhoon warning as to the future position of the cyclonic system, nevertheless puts to sea on the basis of a judgment, based on his or her own experience or some other information, that the warning will prove to be inaccurate. In such an event, the clause operates, so that the risk of such a judgment is not borne by the underwriters. Moreover, the clause should be construed so that the master making the decision to sail should be able to know with a reasonable degree of certainty that the ship is or is not then off risk. This is not achieved by construing the typhoon clause to involve a conclusion which an experience and competent mariner might reasonably draw by the application of his or her meteorological experience and expertise to the published information. Typhoons are notoriously erratic and their future movements are difficult to predict. Consider Typhoon Ruth. Captain Sampan said that, in his experience, typhoons approaching the Chinese mainland do not maintain a steady westerly direction; they veer to the north. His experience is confirmed by the actual movement of typhoon Ruth after 26 October and it accords generally, but not exactly, with the experience of Dr Holland. Moreover, the history of Typhoon Ruth over the two days subsequent to 26 October as recorded in annexure GH1 to Dr Holland's witness statement shows that its speed began to diminish and its area of storm force winds reduce during those days.
It is true that Captain Sampan and his officers did undertake the task of attempting to predict the likely future movements of the typhoon before leaving port, using only the three surface analysis reports which they had received. It may be supposed that he and they brought to bear their collective experience and expertise in so doing. Captain Sampan said that, having done this, he felt comfortable in putting to sea for an encounter between his intended path and the typhoon was possible, but not probable. If he had been asked and if he had thought about it, he may have considered that the information in the three charts did not give rise to a conclusion that his projected voyage might be expected to encounter the storm force winds produced by the typhoon. He may have been wrong in so concluding, even negligently wrong. This is not for me to say. It is, to my mind, wholly unsatisfactory that a construction of the typhoon clause should involve such an assessment, usually after the event, in order to determine whether the vessel was off risk when it left port.
The interests of both the insured and the insurer and the evident purpose of the typhoon clause all point to the conclusion that it requires the master to have knowledge of information emanating from a recognised meteorological agency which in terms warns the mariner that the vessel's path will encounter an area where, at the time, winds of storm force are expected to occur. The surface analysis reports do not, individually or collectively, meet this requirement. Accordingly, the possession of these reports by Captain Sampan prior to sailing does not have the consequence that the typhoon clause operates to avoid the policy.
It would seem, therefore, that there should be judgment for the secondnamed plaintiff. I would hear counsel further on the terms of the orders to be made to give effect to my conclusions.
---
0
1
0