1. Between 01.00 and 07.00 on 11 May 2009, Mr Renford Braganza, Chief
Engineer on BP’s oil tanker the British Unity, then in the mid-North Atlantic,
disappeared. No-one knows for certain what happened to him. But his employers formed the opinion that the most likely explanation for his disappearance was that he had committed suicide by throwing himself overboard. This would mean that his widow was not entitled to the death benefits provided for in his contract of employment. Clause 7.6.3 of that contract provided relevantly as follows:
“For the avoidance of doubt compensation for death, accidental
injury or illness shall not be payable if, in the opinion of the Company or its insurers, the death, accidental injury or illness
resulted from amongst other things, the Officer’s wilful act,
default or misconduct whether at sea or ashore ….” (emphasis
supplied)

2. It is not the task of this or any other court determining a claim under such a contract to decide what actually happened to Mr Braganza. The task of the court is to decide whether his employer was entitled to form the opinion which it did. The issue of general principle in this appeal, therefore, is the test to be applied by the court in deciding that question.

The facts

3. Mr Braganza was an able and well qualified Chief Engineer. Like all the crew of the MV British Unity, he was an Indian national. He was a Roman Catholic and married with two children. In July 2008, the family had moved from India to Toronto in Canada and he had taken extended leave for this purpose. After returning to work with BP, he joined the British Unity in Gibraltar in
February 2009. The vessel’s main engine had broken down in August 2008
and been repaired but the damaged cylinder liners had not been replaced. This major work was done in April 2009 in Ferrol, Spain. Shortly after leaving Ferrol, the cooling water jacket of one of the cylinders began to leak. The vessel then proceeded via Falmouth to Brofjorden in Sweden, where a cargo of unleaded gasoline was loaded and also two spare cooling water jackets, which were stored in an alleyway on the main deck, close to a hatch providing access to the engine room below.
4. After sailing from Brofjorden, Mr Braganza received an email on 5 May 2009 from an engineering superintendent asking him to carry out a scavenge
inspection/ring inspection of the engine in about six days’ time and
suggesting that it would be prudent to replace the cooling water…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Braganza v BP Shipping Ltd

Details

AGLC: Braganza v BP Shipping Ltd [2015] UKSC 17
Case: [2015] UKSC 17
Decision Date

CaseChat Overview and Summary

The Supreme Court heard an appeal by the widow of Mr Renford Braganza, Chief Engineer of the British Unity, who disappeared from the vessel in May 2009. The disappearance was presumed to be either an accidental fall overboard or suicide. Under Clause 7.6.3 of Mr Braganza's employment contract, compensation for death was not payable if the death resulted from the employee's "wilful act, default or misconduct." The employer, BP, concluded that Mr Braganza had committed suicide and denied the widow death benefits. The widow sued BP, and at first instance, Teare J held that BP's conclusion was flawed and BP was liable for the death benefits. The Court of Appeal reversed Teare J's decision. The widow appealed to the Supreme Court. The Supreme Court held, allowing the appeal and reinstating Teare J's decision, that BP's conclusion that Mr Braganza had committed suicide was unreasonable. BP had failed to take into account relevant matters when forming its opinion, including the real possibility that Mr Braganza had gone on deck to check the weather and may have fallen overboard accidentally. BP also failed to consider evidence to the contrary, including that Mr Braganza's behaviour had appeared entirely normal to those with whom he was in contact the night before his disappearance. The Supreme Court further held that while the standard of review of BP's decision should be no more demanding than the standard of review adopted in the judicial review of administrative action, there were aspects of employment contracts that distinguished them from commercial contracts and required a more intense scrutiny of the employer's decision-making process.

Orders