[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bambury & Anor v Huiduk, Owner Of Ship [2001] EWCA Civ 1460 (26 September 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1460.html Cite as: [2001] EWCA Civ 1460

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AN EXTENSION OF TIME A STAY OF EXECUTION
AND PERMISSION TO RELY ON FURTHER EVIDENCE
APPLICATION FOR PERMISSION TO SUSPEND ORDERS

		Royal Courts of Justice Strand London WC2 Wednesday, 26th September 2001

1. LORD JUSTICE RIX: On 23rd March 2000 a collision occurred between Mr Bambury's yacht called "New Sense of Freedom" and Mr Anjary's tug "The Carron Highlander" in an inner arm of Poole Harbour close by Sydenham's Wharf. The collision was not a serious one. Some of the witnesses spoke of the collision being, in effect, a light kiss although there was a dispute about how the collision occurred. It led to some damage upon the yacht, the extent of which was also in dispute.
2. Mr Anjary, who was not insured, wished to deal with his liability - he always accepted liability for the collision, for the yacht was stationary and it was the tug which was in motion - by appointing a joint surveyor and proceeding in as informal a way as possible. His view of the matter was that damage of only some few hundred pounds had been caused. Despite that suggestion, separate surveyors were appointed who visited the yacht in the days immediately after the collision.
3. A few days later Mr Bambury caused Mr Anjary's barge, the "Huiduk" to be arrested - what is called a "sister ship" arrest -as security for the claim he wished to make arising out of that collision. The affidavit leading to the arrest asked for security in all of £30,000 inclusive of prospective interest and costs over the period of the expected litigation. In due course the point of claim specified damages of some £14,000 to £15,000 mainly in respect of anticipated repairs but also other matters as well.
4. The trial began in January 2001 and continued, with interruptions, into May when Master Miller gave a detailed and lengthy judgment in the first instance dealing with the question of quantum. After a further lengthy hearing he gave a second judgment on 25th June 2001, again detailed and lengthy, dealing with Mr Anjary's counterclaim for damages for wrongful arrest. Master Miller - after hearing a number of witnesses from both sides and the expert surveyors as well - Mr Ketenkamph for Mr Bambury and Mr Ross for Mr Anjary - found that the damage of which Mr Bambury complained, and which had been repaired at a cost of some £10,000 or thereabouts, had indeed been caused by the collision. In all he awarded damages of some £14,200, to which was added some £1,400 for interest and costs which the judge estimated as being many multiples of £10,000. I cite those details because of Mr Anjary's counterclaim for wrongful arrest.
5. Mr Anjary now seeks permission to appeal on the ground that Master Miller was wrong in all his findings. This morning Mr Jafferji in his helpful submissions to the court has concentrated most on submissions to the effect that the accident could not have occurred in the way in which the judge found it to have occurred: on the basis that if it had done so, the damage would have been far greater than it was. He has also submitted that the judge was wrong to reject evidence based upon respective measurements or estimates of the heights of the two respective vessels, those measurements and heights being relied upon by Mr Anjary to support his case that the accident could not have happened in the way in which Mr Bambury alleged it did.
6. At trial, however, although there was indeed an issue as to how the collision occurred, and whether the damage complained of had been caused by the collision or had been pre-existing, there was also a major dispute about the extent of the damage which could be found on the yacht. What Mr Jafferji's submissions have not dealt with in detail is the Master's clear findings that the damage which he found and which he briefly listed again at page 36 of his judgment was self-evident. He had photographs of that damage. He had the evidence of the respective surveyors. The judge had no hesitation, as he said himself, in preferring the evidence of Mr Bambury's expert Mr Ketenkamph to that of Mr Ross. He was compelled to find that Mr Ross was an unsatisfactory witness who was blinkered by his instructions and was too partisan and entirely unreliable. The facts were, as the Master found, that the yacht had been in immaculate condition b efore the collision, that there was clear evidence of damage to the bow of the yacht where it had come into collision with the tug, that that damage could be identified and specified and had been repaired at the cost of some £10,000. He said the damage was clear and that it was consistent with the nature of the collision.
7. There was indeed a dispute as to how the collision occurred, whether it occurred when the tug was going ahead or was coming back from its position and whether it had or had not occurred when and because the tug's engines had engaged for a short time, but there was evidence on both sides of those arguments. As to that dispute and the question of the respective dimensions and heights of the vessels, in all those respects he preferred the evidence, on balance, of the claimant to that of the defendant.
8. Mr Anjary seeks to put in fresh evidence on this application, first, that of Captain Morgan, the master of the tug. He apparently had been unfit to give evidence at some time during the hearings albeit there is now a medical certificate that says he was fit to go to sea as from 10th April 2001, about a month before the end of the trial on quantum. Be that as it may, his letter shortly after the collision, which was before the judge, is consistent with the judge's findings, viz that the tyre at the bow of the tug came into contact with the yacht. His new evidence, which goes to the point whether the tug's engine could have engaged, hardly takes the matter any further, because however the collision occurred the evidence as to the damage sustained by an immaculate yacht was clear and obvious and clearly found by the Master.
9. A further new statement from a Mr Merriman, who was the tug's engineer, also to the effect that the engine could not have engaged, is put forward. Mr Merriman had specifically visited the tug in April 2000 after the collision; he was therefore a witness known to Mr Anjary. Whatever Mr Merriman's troubles may or may not have been since that date, his evidence at least in written form, if he was overseas, could certainly have been presented to the court. On the ground therefore that both Mr Morgan's and Mr Merriman's evidence could have been supplied to the court at trial, in writing if not orally, and on the ground that their new evidence does not go to the vital question whether the yacht was damaged before or by the collision, and therefore does not take matters any further, I would refuse permission in any event to rely on it.
10. There has been a lengthy trial of how the collision occurred and to what damage it gave rise. The judge heard the evidence of many witnesses, preferred the evidence of some rather than others, and gave full reasons why he did so and for the findings he made. It would be impossible for this court on a mere review of his judgment to differ with his assessment of the witnesses and the facts which their evidence established.
11. In my judgment Master Miller's judgment in any event is not subject to the attacks which the applicant has levelled against it. It therefore follows that the damage and the losses to which that damage gave rise are as the judge found them to be in the order of some £14,000.
12. Turning to the question of the counterclaim and the separate judgment on wrongful arrest, Mr Jafferji has not addressed this court separately on that, for this very good reason that if the damage to the yacht was sustained as the judge found it to be and if it gave rise to the damages which he has awarded, then Mr Anjary's counterclaim for wrongful arrest is quite hopeless. The arrest was made for £30,000, which the trials have shown to be an appropriate amount. It was always open to Mr Anjary to provide alternative security, which he did not do. His case that Mr Bambury was making a mountain out of a molehill entirely failed at trial. His counterclaim depended on showing either malice or recklessness, to put into the vernacular the old admiralty terms of mala fides or crassa negligentia: such a case was always going to be difficult, and effectively failed already at the earlier trial on quantum.
13. For those reasons this application for permission to appeal must fail.
14. LORD JUSTICE ALDOUS: I agree. For those reasons the applications are refused.
Order: Applications refused