Thor II judgement remaining parts

(2005-02-08) Queen's Bench Division

Thor II judgement reviewing the use of valued and unvalued hull policies


The expert evidence


Before I deal with Mr Kenny?s submissions on the construction issue, I should refer to the expert evidence which I heard in relation to the issue as to whether the policies were valued or unvalued. This consisted of reports and oral evidence from two experienced and distinguished Lloyd?s Marine Underwriters, Richard Outhwaite, on behalf of the Claimant Owners, and Bernard Devereese, on behalf of Insurers. They agreed that it was the invariable practice in the English marine insurance market for hulls and machinery to be insured on a valued basis, that is to say on policy wordings that included words such as "so valued" or "valued at" adjacent to the description of the subject matter being insured. Mr Devereese said that a competent underwriter or Lloyd?s broker would not consider a policy merely using the term "sum insured" as describing a valued policy. Both agreed (albeit Mr Outhwaite with some reluctance) that the term "sum insured" was universally recognised as denoting the maximum amount of insurers? liability under the policy being issued and that, in each case, the true meaning of the policy must depend on the words actually used.


Conclusion on the construction issue



Largely for the reasons advanced by Mr Davies, on behalf of Insurers, I reject Owners? submissions that, on their true construction, the policies here are valued policies. My reasons may be summarised as follows.



For the policy to be a valued policy, section 27 requires there to be a specification of the agreed value of the subject matter insured. The mere specification of a sum insured, without more, cannot amount to a specification of the agreed value of the subject matter insured. The definition of an unvalued policy in section 28 emphasises the recognised meaning of the words "sum insured" as being merely an expression of the limit of insurers? liability, as distinct from the "insurable value" which is the amount that the insurer will have to pay if there is a total loss (which would be the "agreed value" in a valued policy). The relevant words are expressly used in that context in the Statute. In other words, mere use of the words "sum insured" without any reference to words of valuation denotes an unvalued policy. That is the clear guidance that one receives from the Act. It is not enough that the policy remains silent. The parties are required to specify the agreed value.



In so far as it is relevant, Owners do not dispute that it is usually the case that the recognised meaning of the words "sum insured" as being merely an expression of the limit of insurers? liability and are not words of valuation. Even Mr Outhwaite appeared to accept this. Being a contract of indemnity, in the event of a loss the assured is required to prove the amount of his loss and is entitled to recover up to the limit set by the "sum insured". The "sum insured" has two purposes. It fixes a figure (1) by which the premium can be calculated and (2) for the upper limit of recovery. It does not provide a basis for calculating the "insurable value" or the claim; see The Captain Panagos DP [1985] 1 Lloyd?s 625 at p.630 rhc per Mustill J. In that case the words "insured amount" were used which are synonymous with the words "sum insured". Mustill J held that use of those words was not enough to constitute a valued policy.



The fact that the mere specification of a sum insured, without more, cannot amount to a specification of the agreed value of the subject matter insured, is confirmed by Thomas J?s decision in Kyzuna. Although that case concerned a yacht, Thomas J laid down the principles applicable to determining whether a policy was valued or unvalued in all cases of marine insurance, not just those relating to yachts: see p.508rhc to p.509rhc. In setting out the applicable principles of law, Thomas J had well in mind the fact that it is common for a policy of marine insurance to be a valued policy. This fact actually featured as one of his principles of law (see his principle (5)). I reject the suggestion that different principles apply depending upon the nature of the vessel insured. Thomas J?s principles were clearly intended to be of general application as subsequently emphasised by him in Quorum v Schramm (supra).



The critical points decided by Thomas J were first (as I have already mentioned above) that the words "agreed value" or "valued at" need not be used to create a valued policy, "provided the intention of the parties is clear that there is a specified agreed value, proposed by the assured and accepted by the underwriter" (p.508 rhc ? principle (3)). Owners are happy to accept this proposition.



Second, Thomas J held that, in contrast, "The use of the term "sum insured" will normally indicate the amount for which the subject matter is insured and not as specifying the agreed value" (p.509lhc ? principle (4)). At p.510lhc Thomas J reiterated the point by saying in relation to the words "sum insured" that "far from meaning the value has been agreed, this ordinarily means the sum is the ceiling of recovery". I accept Mr Davies? submission that it follows from this, that Thomas J was deciding that the words "sum insured", when used on their own, do indicate, or equate to, an unvalued policy. Because, if they are not regarded as specifying the agreed value and only equate to the ceiling on recovery, this necessarily means that they do not satisfy the requirements of section 27(2) and thus the policy must be unvalued. Owners do not accept this proposition. They seek to distinguish Kyzuna. In my judgment there is no basis for the distinctions they seek to make. The concession made by insurers in that case (p.510lhc) that the term would, in accordance with the authorities, normally point to an unvalued policy was clearly correctly made. It is also quite apparent that Thomas J was of the view that this concession was correct because he held that the use of the words "sum insured" without more meant that the policy in that case was unvalued. Nor is there any distinction to be made based on the fact that in Kyzuna the vessel was a different type of vessel, namely a yacht. Thomas J had well in mind that it is common for a policy of marine insurance to be a valued policy, since he was clearly looking at the broader context as well. Indeed this fact actually featured as one of his principles of law (see his principle (5)). The fact that this case concerns a "Hull" rather than a low value "yacht" (which, according to Mr Outhwaite would usually be written on an unvalued basis) does not detract from the recognised meaning of the words used in the policies here. The "practice" upon which Owners rely has already been taken into account in coming to the conclusion.



Nor is any assistance, whether by reference to factual matrix, or as a matter of pure construction of the words used, to be derived from the point that the incorporated ITCH clauses specifically state that "This insurance is subject to English law and practice". As Mr Kenny conceded in argument, the words actually used in the policies have to be the controlling influence on the result. (Even Mr Outhwaite (when giving his evidence on the market practice of hull policies being contracted on a valued basis) was constrained to admit that whether a policy was valued or unvalued depended on the words used.) I reject Owners? argument that the words "sum insured" in these policies should not be given their ordinary meaning because of the existence of the agreed practice. I accept Mr Davies? submissions that:


The Policies are expressly subject to English law (by virtue of the ITCH). English law provides that evidence of custom/usage (quite apart from mere practice) is inadmissible where it seeks to vary or contradict the express terms of the contract. If the terms of the contract/policy are plain, evidence of custom and/or usage and/or practice is inadmissible.


The fact that the ITCH purport to make the Policies subject to "English ? practice" is irrelevant if English law provides that evidence of such practice is inadmissible.


In any event, the agreed practice in this case; viz. that invariably, in the English marine insurance market, hull and machinery are insured on policy terms that provide for an agreed valued basis, does not help Owners in this case. Owners, in their Re-Amended Points of Claim and in Mr Kenny?s opening, and Mr Outhwaite in cross-examination, recognised that whether a policy is valued or not, must depend upon the actual words used. There was no evidence adduced before me of a custom and practice to the effect that use of the words "sum insured" means that the policy is to be treated as a valued policy, even in the absence of any words in the policy that could be regarded as a specification of an agreed value. Whilst it may be the practice, indeed the invariable practice, of English marine underwriters to provide cover on a valued basis (a fact recognised by Thomas J in reaching his decision in Kyzuna), the reality is that they achieve this by using clear words to that effect in accordance with the requirements of section 27(2) of the Act.



I also reject Mr Kenny?s argument that one should construe the words "the sum insured" as equating to the specification of an agreed value of the Vessel, because the underlying assumption of the ITCH is that the insurance to which they attach is on valued terms. He submits that this is more pervasive in the case of ITCH (compared to the Institute Yacht Clauses under consideration in Kyzuna) and that, accordingly, this is another reason for distinguishing that case. Thomas J was not persuaded by the assured?s reliance on the provisions of the Institute Yacht Clauses (which mirror to an extent the ITCH). Thomas J?s approach is obviously correct. The ITCH are subject to English law and drafted in the knowledge of the terms of the Act, which expressly caters for both valued and unvalued policies. Further, it is expressly stated in the heading of the ITCH that they are "FOR USE ONLY WITH THE CURRENT MAR POLICY FORM". The current MAR Form was not used in this case, but its standard terms, both the Lloyd?s and the ILU Form, expressly refer to and draw a distinction between: (1) "Agreed Value (if any)" and (2) "Amount Insured Hereunder", the latter equating to the phrase "sum insured" (as per The Captain Panagos DP). Accordingly, Owners? contention that the underlying assumption of ITCH is that the insurance to which they attach is necessarily on valued terms is wrong. The MAR Form expressly contemplates and caters for unvalued policies. The fact that the words "insured value" appear more frequently in ITCH is not a valid argument for distinguishing Kyzuna on this point. No assumption is made in the Clauses to support the notion that they assume a valued policy. The fact that Insurers might be prejudiced by having only an unvalued policy, because they could not rely on some of the provisions in ITCH (for example, clause 11.4), does not persuade me that one must construe the words "sum insured" as ascribing an agreed value to the vessels, or to any individual vessel. Nor do some of the suggested difficulties in valuation put forward by Mr Kenny (which I deal with below) predicate that the words "sum insured" equates to agreed value. Likewise I cannot see that his submissions derive any support from the fact that there are two Insurers and two Policies in this case, rather than one.



Nor, in my judgment, is there anything in the factual background that supports an argument that the words "sum insured" must be read as "agreed value", because, approaching the matter on any sensible commercial basis, that is what, objectively speaking, a reasonable insured under the policies would have thought was the position; see Mannai Ltd v Eagle Star (supra). In so far as it might be admissible to refer to them as factual matrix material (which must, in my judgment, be doubtful), every quote sent on behalf of Insurers and every policy and endorsement issued by them expressly used the words "SUM INSURED" (in capital letters). No reference was made to any "value" being recognised or agreed to by Insurers. Although the request may have been for a quote on a valued basis, that is not what Insurers were prepared to offer and they made their intention plain by just using the words "SUM INSURED" without any words referable to value (in all quotes communicated to Owners and policies/addenda sent through).



For similar reasons, I also reject the submission that one can imply a term into the Policies to the effect that they are to be regarded as valued policies. To do so would contradict the express wording of the Policies which is not allowed: see Chitty (29th ed) at para 13-023. As I have already stated above, in any event, there is no relevant custom in this case. As Owners accept, each case depends upon the words used. There is no custom pleaded or proved to the effect that, by using the words "sum insured" in a policy of marine insurance, it is recognised that the policy is a valued policy. It cannot be said that there exists a custom to that effect that is so well established and has become so universal "that it must be taken to be incorporated into any contract that is entered into by the parties dealing in this particular business": Chitty at para 13-021; see also Cunliffe-Owen v. Teather & Greenwood [1967] 1 WLR 1421 at p.1438B-C & G per Ungoed-Thomas J.



Accordingly, like Thomas J in Kyzuna, I conclude that there is nothing in the policies here to displace the ordinary meaning of the words "sum insured".


Facts relevant to the claims of estoppel and for rectification



Before dealing with the evidence given by the respective parties as to their subjective intentions at the time, I first summarise the chronological correspondence and other documentary material relevant to the consideration of these claims.



First contact was made on 30 January 2001, when Link sought quotations from Topmar, and various others, for hull cover for the Interglobal fleet on the basis of stated vessel values. All the other insurers/ agents approached appeared to have understood this as a request for valued cover. At that time the Interglobal fleet was insured in the United States, through HBI International Ltd, on a valued basis, with expiry at the end of February 2001. However, by early 2001 it was clear that Interglobal would face difficulties in obtaining cover for its fleet on rates that it was prepared (or able) to pay. Mr Myriantholpoulos says that these difficulties caused him to approach Topmar (as Insurers? representative) to quote for the business. On 30 January 2001 Mr Myrianthopoulos sent a fax on behalf of Link to Topmar seeking a quotation in respect of four vessels (including the Vessel). The information supplied in the fax included a "value" for each of the vessels. A figure of some sort was essential for any prospective insurer. Without some form of valuation figure it would have been impossible for an insurer to work out a rate of premium whether the policy was to be valued or unvalued. Mr Semenkov received a copy of Link?s fax dated 30 January 2001 from Topmar and he sent a quote back to Topmar the same day by email. Mr Semenkov and Mr Krasnokutskiy discussed the terms of the proposed quote before anything was sent to Link. Mr Semenkov said that, although his email did not specifically mention whether the quote was being made on a valued or unvalued basis, he would have expected Mr Krasnokutskiy to make it clear that the quote was being made on an unvalued basis when the same was sent to Link. On 31 January 2001 Mr Krasnokutskiy sent a quote on behalf of Insurers to Link (Mr Myrianthopoulos). In addition to setting out the proposed premium, the quote expressly stated a "SUM INSURED" in respect of each of the vessels. Although those sums were the same as the "values" set out in Link?s fax of 30 January, the quote did not accept those values as agreed values nor did the quote refer to the words "insured value" or "valued". On 21 February 2001 Mr Krasnokutskiy chased Mr Myrianthopoulos for a response to Topmar?s fax of 31 January. Link failed to respond to this chaser.



On 2 March 2001 HBI International Ltd ("HBI") confirmed that the present US insurers (of the Interglobal fleet) were prepared to extend cover to the end of March 2001. Those insurers were plainly unhappy about renewing the Interglobal cover on the terms as expiring and thus there was an interim extension of just one month. Somewhat out of the blue (2 months later), on 21 March 2001 Mr Myrianthopoulos sent a further fax to Mr Krasnokutskiy thanking him for the 31 January quote and asked for a revised quotation bearing in mind, amongst other things, (1) the addition to the fleet of ALDEBAR with a value expressed as $1.5m and (2) the fact that the "insured value" of MARIA DIA I was $1.5m, not $2.5m as previously stated.



This fax was forwarded to Mr Semenkov by Mr Krasnokutskiy and Mr Semenkov provided a revised quote. Mr Krasnokutskiy sent Insurers? revised quote to Link (per Mr Myrianthopoulos) by fax on 22 March 2001. That quote again stated that Insurers? quote for ALDEBAR was being offered on the basis of a "SUM INSURED", and that the terms for the other vessels were as per Topmar?s quote in the fax of 31 January (subject to certain irrelevant amendments), i.e. on an unvalued basis. It did not accept that the values stated by Link were agreed by Insurers for the purpose of the proposed insurance.



On 29 March 2001 HBI sent a fax to Link confirming the US insurers? agreement to renew the Interglobal fleet insurance for a further 12 months on expiring terms, save that this cover was to terminate automatically if all the vessels were not re-classed by 30 June 2001. On 30 March 2001 Link informed Topmar that Interglobal?s existing cover had been extended for a further 3 months (not 12 months) and asked that Insurers keep their quotations open for further discussion in 2 months? time. On 25 June 2001 Mr Myrianthopoulos sent a further fax to Mr Krasnokutskiy referring to the previous correspondence (and recent discussions with Mr Hallak) and confirming that Link had authority to place the proposed cover "with you". Mr Myrianthopoulos stated that "values, terms, conditions and security" were to be as per previous correspondence and asked for confirmation of cover accordingly. On the same day, Mr Hallak responded by email stating that Topmar would revert after "relaying with underwriters".



On 26 June 2001 Topmar (by Mr Hallak) sent an email to Mr Semenkov advising that confirmation to place cover for the Interglobal fleet had been received. The email then summarised the basic terms that had been proposed in the quotes previously sent on behalf of Insurers. Those terms included a "SUM INSURED" (but no insured or agreed value) in respect of each of the vessels, including the Vessel. Consistently with Insurers? quotes, there was no suggestion that any values had been agreed by or on behalf of Insurers.



On 28 June 2001: (1) SOVAG confirmed its 60% participation for 12 months with effect from 29 June 2001 with Ingosstrakh as claims leader and (2) Ingosstrakh sent a fax to Topmar enclosing a copy of the policy it had prepared (No.036750) and an invoice for premium due, thereby communicating the terms upon which it was prepared to provide insurance cover. The interest was expressed to be in respect of "Hull and Machinery" and in respect of each of the vessels a "SUM INSURED" (in capital letters) was expressly stated. No mention was made of any alleged agreed or insured values. Topmar forwarded a copy of the Ingosstrakh policy to Link on the same day.



Later on 28 June 2001 Link responded in relation to the Ingosstrakh policy, stating that, at first reading of the Ingosstrakh policy, there were four points which needed to be "refined/amended". These points were relatively minor. No objection was made to the use of the words "SUM INSURED" nor was any mention made of the fact that no reference was contained in the policy to any agreed values for the vessels. Link?s/Owners? comments were passed on to Mr Semenkov late on 28 June and Mr Semenkov amended the policy accordingly (save as regards the fourth point raised, which related to Ingosstrakh following SOVAG, to which he was not prepared to agree).



On 29 June 2001 a copy of the amended Ingosstrakh policy was sent through to Link. On or about 2 July 2001 a draft of the SOVAG policy was sent to Link. This draft again expressly stated a "SUM INSURED" in respect of each of the Vessels with no reference to any values being agreed. Link responded by fax to Topmar on 4 July with two proposed amendments, one of which was accepted and one of which was rejected. No complaint was made by Link about the fact that the policy expressly referred to a "SUM INSURED" for each vessel and made no reference to "agreed values".



On 19 September 2001 Link asked for a quote from Insurers in relation to the possibility of adding the POLYDEFKIS to the fleet cover. In its fax to Topmar (which was copied on to Mr Semenkov), a "value" of $2.5m was given for this vessel. Insurers were prepared to quote on the basis of "conditions as per slip" and, after some negotiation over the rate of premium, Insurers agreed to attach this additional vessel to the cover on the terms set out in the Addenda No.1 to the policies. Each Addendum provided for a "SUM INSURED" in respect of the vessel and no more. This was in accordance with the terms of the policies.



On 6 December 2001 Link sought a further quote from Insurers to add the mv GEORGIOS S to the fleet policy. However, on this occasion Link specifically included amongst the details requested for the quote an "insured value" of $2.5m. When the quotation came back from Mr Semenkov, via Topmar, it did not refer to an insured value, but simply stated "conditions as per fleet". Further, the Addenda No.2 sent by Insurers (accepted and counter-signed without dispute on behalf of Owners) simply referred to the fact that the insurance was on the basis of a "SUM INSURED" of $2.5m and there was no reference to an agreed value. Mr Semenkov said that he noted this request for a quote for an "insured value" of $2.5m, but that he was not prepared to insure this vessel on any different terms from those already covered (including the Vessel). Hence, when he quoted he did so on "conditions as per fleet" terms.



On 7 June 2002 Link sent a fax to Topmar asking for Insurers? agreement to late payment of the last premium instalment (because of unforeseen heavy spending) and inviting Insurers? renewal proposal. As regards renewal, on 10 June 2002 Insurers proposed a 7.5% increase in premium for all vessels, this being copied to Link on 11 June 2002. Owners were clearly concerned to get the cheapest cover possible because quotes were then sought on various alternative bases of cover.



Although quotes were sought and obtained from numerous other sources around this time, Owners decided they should renew with Insurers on terms of the 11 June 2002 fax. This was communicated to Topmar by Link on 26 June 2002 Topmar responded on the same day confirming the renewal on agreed terms "as per expiry" with a 7.5% increase in rates. Accordingly, as stated in the policies, the cover was fixed on the basis of a "SUM INSURED" for each vessel, not on an agreed or insured value basis. No complaint was made by Link on behalf of Owners, in respect of either of the Policies, despite the fact that both stated in capital letters on their face that the amounts stipulated therein were "SUMS INSURED" as opposed to agreed values.



It will be noted from the above that the requests made by Link consistently sought quotations on the basis of "values" or "insured values", whereas the responses to Link from Topmar, on behalf of Insurers, whether by way of quote, policy, or endorsement or addendum, consistently offered or gave cover on the basis of "sums insured" and at no stage did Insurers respond to Link?s requests for quotes/cover by offering terms on the basis of an agreed value. Mr Semenkov?s evidence was to the effect that this was quite deliberate on the part of Insurers because they intended to contract on the basis of unvalued policies.

Rectification


Having concluded that the policies are, on a true construction, unvalued, I turn now to consider Owners? alternative submission that the written contracts should be rectified to reflect the Owners? subjective belief that they were valued policies. Two grounds of rectification have been alleged: (1) common mistake by Owners and Insurers, and (2) unilateral mistake by Owners alone.



In Agip SpA v. Navigatione Alta Italia SpA ("the Nai Genova") [1984] 1 Lloyd?s Rep. 353 at 359 Slade L.J. explained the rationale of rectification as follows:


"In principle ? rectification is ? not for the purpose of altering the terms of an agreement ? but for that of correcting a written instrument which, by a mistake in verbal expression, does not accurately reflect their true agreement".



In all cases of rectification the claimant bears the burden of proving that the written instrument does not reflect the true agreement of the parties. Although the standard of proof required is the usual civil standard of the balance of probabilities, convincing evidence of the parties? true intentions is needed in order to counteract the cogent evidence of the parties? intention contained in the written contract: see per Slade LJ in the Nai Genova at 359; and Thomas Bates and Son Ltd. v. Wyndham?s (Lingerie) Ltd. [1981] 1 W.L.R. 505 at 514 per Buckley L.J., 521 per Brightman L.J. I bear that standard in mind, particularly when I come to consider the allegation of common mistake by both Owners and Insurers.



Under the first ground of rectification - common mistake by Owners and Insurers - the burden lies on the Owners to establish a common intention to contract on a valued basis, with at least some outward expression of accord to that effect, which continued up to the time of the execution of the instrument (June 2002): the Nai Genova [1984] 1 Lloyd?s Rep. 353 at 359 per Slade L.J.



I have no hesitation in finding that the Owners, through their brokers, Link, subjectively intended to contract on a valued basis. In his written evidence and in cross-examination, Mr Myrianthopoulos of Link repeatedly said that he assumed that the words "sum insured" and "agreed value" appearing in a policy would have had the same meaning. I accept that he took it for granted in his own practice that all policies for commercial trading vessels were written on an agreed basis. The impression I formed was of an experienced broker, making a foray into an unfamiliar insurance market, who assumed that the policies for which he requested quotations would be written on the usual agreed value basis with which he was familiar. Moreover, after the close of evidence, Mr Davies, on behalf of Insurers, fairly accepted that Owners were operating under a mistaken assumption as to the terms of the Policies, because Mr Myrianthopoulos simply did not appreciate the importance or significance of the words "sum insured" when used without words of value or valuation. Insurers, however, contend that he ought to have understood the meaning of the words used.



Owners? primary case is that Insurers intended to provide cover on a valued basis and shared Mr Myrianthopoulos? mistake. They contend that Mr Semenkov only appreciated that the point could be run after the claim for constructive total loss of the Vessel had been made. Thus Mr Kenny, for the Owners, put it to Mr Semenkov that his belief that he was contracting on an unvalued basis was one that came to him only after the policies had been written and the insured event had occurred and that his belief at the time when the written contract was concluded had been to write the policies on an agreed value basis. His failure, for example, to take a market valuation of the vessel was consistent with that belief since obtaining such a valuation was the first thing he would have done if he had truly thought that he was contracting on an unvalued basis. Mr Kenny submitted that Mr Semenkov could not adequately explain why, in the email to his lawyers, the constructive total loss issue was put in terms of sum insured rather than market value; and he relied, for example, upon answers such as the following

"? my understanding was at all times and from conclusion of this contract of insurance that the policy was unvalued. But logically the question of unvalued policy it develops not immediately when the case occurred, but sometimes after."

to suggest that Mr Semenkov was lying.


Having seen and heard Mr Semenkov give his evidence, I am not prepared to conclude that he was lying on this point. Mr Semenkov?s evidence was quite clear and was consistent throughout ? he always intended to contract on the basis of an unvalued policy. He was adamant, both in his witness statement and in cross-examination, in saying that he intended to issue policies on an unvalued basis and that in using the words "sum insured" he intended the policies to have that effect. He said that he had been familiar with several books on English marine insurance law which explained the effect of issuing policies for a "sum insured". He therefore understood that by writing his policies in those terms they would be unvalued. Although in some respects he was an unsatisfactory witness, because his answers tended to be very long and he had difficulty with expressing himself in English, I accept that he was basically an honest witness. He is plainly an intelligent man; he is a qualified commercial lawyer with experience of marine insurance law, as well as being an underwriter, who obviously has a comprehensive knowledge of marine insurance law, including from an English law perspective. His basic understanding was confirmed by what was said in Insurers? Russian Rules of Underwriting, which adopt the same approach to the words "sum insured". I also accept his evidence that, in his experience, historically, Russian insurers contract on an unvalued basis and that it was Insurers? preference to do so, because they are not keen on insuring vessels for values in excess of their true market value, and have real concerns over foreign vessels, because they do not know enough about their values. Moreover, each policy and addendum was clearly expressed to be in respect of "SUM INSURED" and no more. It would have been surprising, to my mind, that a man like Mr Semenkov would have adopted such wording when he accepted that he knew that Owners were seeking cover on a valued basis, if he had intended to insure on a valued basis. Moreover his fax to Insurers? solicitors, which was sent unprompted, supports Insurers? case. It does not appear to me to be written on the basis that Mr Semenkov has just come across the point. I accept that at this stage, Insurers were considering all possible options open to them. Up until this stage Insurers had been content to run with the notion that the "sum insured" was the correct figure against which to assess a constructive total loss. As Mr Semenkov pointed out in cross-examination, Insurers were entitled to go through a process of making their minds up as to what points to take ? and, for that, they needed to be fully informed.



Other points were taken by Mr Kenny to support Owners? case that Insurers had the intention to contract on a valued basis. However, at the end of the day, bearing in mind the standard of "convincing evidence" required to displace the cogent indication of Insurers? intention to contract on an unvalued basis in the written policy, I conclude that Owners? mistake was not shared by Insurers.



I turn to now to the alternative basis for Owners? claim for rectification, namely unilateral mistake by the Owners. The test for establishing rectification for such a mistake has been considered by the Court of Appeal in Nai Genova supra and, more recently, in Commissioner for the New Towns v. Cooper (Great Britain) Ltd. [1995] Ch. 259. Both decisions accept that rectification can properly be granted for a unilateral mistake where the defendant had actual knowledge of the claimant?s mistake when the contract is signed. Actual knowledge in this context has been interpreted to include the defendant?s wilfully shutting his eyes to the obvious fact of the claimant?s mistake or his decision wilfully and recklessly to make reasonable inquiries that might reveal the existence of the claimant?s mistake (Commissioner for the New Towns v. Cooper (Great Britain) Ltd. [1995] Ch. 259 at 282 per Stuart-Smith L.J; Baden v. Soci?t? G?n?rale pour Favoriser le D?veloppment du Commerce et de l?Industrie en France S.A. (Note) [1993] 1 W.L.R. 509 at 575-576 per Peter Gibson J.). The effect is therefore that the defendant?s knowledge of the claimant?s mistake can be stigmatised as dishonest. The implication is that his decision to proceed with the contract when he knew of the claimant?s mistake is below generally accepted standards of commercial behaviour (see Royal Brunei Airlines Sdn Bhd v. Tan [1995] 2 A.C. 378 at 390).



Applying these tests to Insurers, I find that they did not know of Owners? mistake. Taking the test at its lowest threshold, I am not satisfied that Mr Semenkov was wilful or reckless in failing to make inquiries of Mr Myrianthopoulos which might have elicited Owners? mistaken view of the construction of the policy. My impression of Mr Semenkov is of an underwriter who regularly issued policies on an unvalued basis without giving much thought to whether the insureds for whom he provided cover might generally have preferred ? or indeed intended ? to transact on a different basis. Mr Kenny pointed out to Mr Semenkov the numerous quotations for valued cover that Mr Myrianthopoulos had made on behalf of Owners for the various vessels in their fleet. To all these requests Mr Semenkov replied with an offer of unvalued cover, which Mr Myrianthopoulos apparently accepted. He took the view that it was for the insured to question the cover which he offered if they did not want it on unvalued terms. I accept the point made by Mr Davies for Insurers that Mr Myrianthopoulos? inquiries about cover were made over a period of months and that they were one of many inquiries that Mr Semenkov would have fielded in the course of a typical day. It was not as if they were made in such quick succession that Mr Semenkov might have had reason to know that Mr Myrianthopoulos had mistaken the basis on which Insurers were providing cover.



Mr Outhwaite was adamant in his evidence that the correspondence between the parties showed that the Owners? brokers assumed that "Sum Insured" in the policy wording was synonymous with "Insured Value" and that, if Insurers did not point out to Owners specifically, and expressly, that Insurers were only prepared to contract on an unvalued basis, that this was tantamount to sharp practice. In my judgment, in so far as Mr Outhwaite?s report, or his evidence, commented upon factual issues such as what the parties must have known and alleged sharp practice, his "evidence" goes far beyond the function of an expert and is inadmissible. If I am wrong in that view, then nonetheless I reject his evidence of "opinion", since it is not based on the entirety of the evidence which I have heard and considered.



This leaves the basis on which rectification can be ordered for unilateral mistake where the mistake is not known to the defendant. It is summarised in the judgment of Stuart-Smith L.J. in Commissioner for the New Towns v. Cooper (Great Britain) Ltd. [1995] Ch. 259 at 280:


"[W]here A intends B to be mistaken as to the construction of the agreement, so conducts himself that he diverts B?s attention from the discovering the mistake by making false and misleading statements, and B in fact makes the very mistake that A intends, then notwithstanding that A does not actually know, but merely suspects, that B is mistaken, and it cannot be shown that the mistake was induced by any misrepresentation, rectification may be granted. A?s conduct is unconscionable and he cannot insist on performance in accordance with the strict letter of the contract".



The test was upheld on the facts of that case. It was held that the defendants made implied misrepresentations with a view to creating a "smoke-screen" which would have distracted the claimants from the true meaning of the written agreement between them. In contrast, in the present case, even assuming that Mr Semenkov suspected Mr Myrianthopoulos? mistake ? which seems unlikely ? I find no such unconscionable conduct on the part of Insurers. Mr Semenkov?s way of doing business might not have been a model of best practice, but I do not accept that his habit of regularly issuing unvalued policies in the face of requests for valued cover can be described as a misrepresentation about the nature of the cover which he provided. The facts are very different from those in Commissioner for the New Towns v. Cooper (Great Britain) Ltd. where the parties dealt closely with each other over a period of months in concluding a single deal. Mr Semenkov dealt only occasionally and remotely with Mr Myrianthopoulos. I accept the force of Mr Davies? submission that Mr Semenkov was entitled to assume that he was dealing with an experienced broker who understood the legal effect of the cover being provided. In the context of the arm?s length relationship between the parties, I do not accept that Mr Semenkov should have been expected to check whether the brokers with whom he dealt properly understood the nature of the cover, or to correct any mistakes they might make about the proper construction of the policy documents.



The claim for rectification therefore fails on both grounds.


Estoppel



I turn now to Owners? case based on estoppel. Owners contend that it is clear from the correspondence which I have summarized above that, on any objective view, taking into account those background facts which a Court may consider to inform itself of how reasonable men in the position of the parties would understand the relevant exchanges, a reasonable owner in the position of the Claimant and/or a reasonable insurance broker in the position of the Claimant?s broker (Mr Myrianthopoulos of Link) would undoubtedly have considered that Topmar and/or Insurers were using the term "sum insured" as meaning "insured value"; and were representing them to be the same. Reliance is placed upon the evidence of Mr Outhwaite and of Mr Myrianthopoulos, and in particular the latter?s evidence that if he had not been "misled" in this way, there would have been "a great deal of discussion and Owners would probably be reluctant to accept such type of cover". Reliance is also placed on the evidence of a Mr Sarris of (Interglobal): if it had been made clear that the cover offered was unvalued"? we would have objected to it and most probably would not have agreed Hull and Machinery cover on the terms offered by Ingosstrakh/ Sovag".



Owners? case is that these facts give rise to an estoppel. Mr Kenny submitted that it was clear that a misleading impression was created in Owners/ Link by the manner of Topmar?s responses to the requests for quotations and by the terms of the policies issued. The clear impression created was that the "sums insured" referred to were the values on the basis of which quotation was sought, and were agreed values for the purposes of the terms of cover. He submitted that whether it is properly to be characterized as an estoppel by representation or by convention is, in the present case, unimportant: it can be said equally that:


(1) Insurers represented as a fact that "sum insured" in their quotations and policies meant, or was, or referred to the "insured value" proposed by Owners and expected by the ITCH; so that the policies were valued; and that the Owners have relied on that supposed fact to their detriment;

(2) the parties here have acted on an assumption "shared by both of them or acquiesced in by the other" (see Chitty on Contracts (29th ed 2004) p. 281 para 3-107; citing The Indian Endurance (No. 2) [1998] AC 878, 913) - namely an assumption that the "sum insured" in the quotations and policies meant, or was, or referred to the "insured value" proposed by Owners and expected by the ITCH; so that the policies were valued; and it would now be unconscionable for Insurers to resile from that assumption.


Either way, it is submitted, Insurers cannot now be heard to assert that the policies were unvalued.



For similar reasons to those which I have already expressed in relation to the claim for rectification, in my judgment, Owners? claim based upon estoppel fails.



Estoppel by convention arises where "the mistaken assumption of the party claiming the benefit of the estoppel must ? have been shared or acquiesced in by the party alleged to be estopped; and both parties must have conducted themselves on the basis of such shared assumption": see Chitty at para 3-109. Further, this estoppel would only apply if it would be unjust and unconscionable to allow reliance upon the strict terms of the Policies; see Chitty at para 3-107.



I have already decided that Insurers did not share Owners? mistaken assumption. Nor in my judgment can it be said (for similar reasons to those given in relation to the rectification claim based on unilateral mistake) that Insurers "acquiesced in" Owners? mistaken assumption. At no relevant stage did Insurers conduct themselves on the basis that the Policies were valued policies. On each occasion, each of the Policies and Addenda were issued with clear wording. There was no suggestion that they were being treated as valued or that there was any accord between the parties (other than that the Policies were to be unvalued). As Mr Davies submitted, the terms of these Policies/Addenda were unlike any English terms of cover previously granted to Owners. As was agreed by both experts, the words "sum insured" when used alone do not (ordinarily) constitute words of valuation. Each quote given was expressly stated to be on a "SUM INSURED" basis and no other, save for on two occasions when they were given on the basis of the existing "conditions" but then followed up with the Addenda in clear terms. The "conditions" included the fact that the policies were unvalued. Insurers/Owners are to be taken to have understood the meaning and effect of the words used. They have a recognised meaning in this market ? whatever Mr Myrianthopoulos may have thought.



I turn next to Owners? case based upon estoppel by representation. In order to establish their case based upon estoppel by representation, Owners have to show that Insurers made a clear and unequivocal representation of fact to the effect that the words "sum insured" meant "insured" or "agreed value", notwithstanding that, as I have held, the words did not bear that construction. In my judgment it is impossible to find any such representation in the correspondence. I accept Mr Davies? submission that the fact that Mr Myrianthopoulos may have failed to appreciate the meaning of the words "SUM INSURED" (when used on their own) is irrelevant when set against their well recognised meaning in the market and the fact that nowhere else in the Policies (or any of the quotes) was any reference made to "values". There was no clear and unequivocal representation made by Insurers as contended for by Owners. Although valued cover may have been requested, Insurers stated on each occasion that that was not the type of cover they were prepared to offer and that they were only prepared to offer cover on an unvalued basis. Nor, in my judgment, can the fact that Insurers did not spell out to Owners the difference between the two types of terms be said to amount to the type of clear and unequivocal representation of fact required to support an estoppel.



Accordingly I reject Owners? claim based on estoppel.


Calculation of the insurable value



I turn finally to the issue of calculation of the insurable value of the Vessel.



Section 68 of the 1906 Act specifies as follows:


"68. Subject to the provisions of this Act and any express provision in the policy, where there is a total loss of the subject-matter insured, -

(1) If the policy be a valued policy, the measure of indemnity is the sum fixed by the policy:

(2) If the policy be an unvalued policy, the measure of indemnity is the insurable value of the subject-matter insured."





The insurable value of a vessel is defined by Section 16(1) ? a section entitled "Measure of Insurable Value":


"Subject to any provision or valuation in the policy, the insurable value of the subject-matter insured must be ascertained as follows:



(1) In insurance on ship, the insurable value is the value at the commencement of the risk, of the ship, including her outfit, provisions and stores for the officers and crew, money advanced for seaman?s wages, and other disbursements (if any) incurred to make the ship fit for the voyage or adventure contemplated by the policy, plus the charges of insurance on the whole:

The insurable value in the case of a steamship, includes also the machinery, boilers, coals and engine stores if owned by the assured, and, in the case of a special trade, the ordinary fittings requisite for that trade



(2) ?."





Mr Kenny submits that the result therefore will be that the measure of indemnity in the case of a total loss will be judged at the commencement of the risk (here 29th June 2002) and will include, not just the vessel?s market value, but also various other items of cost i.e. her outfit, provisions and stores for the officers and crew, money advanced for seaman?s wages, other disbursements (if any) incurred to make the ship fit for the voyage or adventure contemplated by the policy, the charges of insurance on the whole, her bunkers and engine stores (if owned by the assured), the ordinary fittings requisite for any special trade,all to be valued at the date of the commencement of the risk.



Mr Davies, on the other hand, submitted that ss.16(1) and 68 of the Act do not apply in assessing the insurable value of the Vessel. He relied on the fact that section 16(1) of the Act makes it clear that the provisions of that sub-section only apply "subject to any provision ?in the policy". He referred to the decision of Mustill J (as he then was) in The Captain Panagos DP (supra) at p.632rhc, where the judge held that section 16(1) is archaic and unsuited to modern conditions, and that the terms of the policy in that case were such as to exclude the operation of sections 16(1) and 68. He submitted that the same reasoning applies in this case because:


The insurance provided in this case is expressly limited to "Hull and Machinery" (see the "Interest" section of the Policies). Further, cl.6 of the ITCH expressly provides that "this insurance covers loss of or damage to the subject-matter insured ?".


That subject-matter is the Vessel?s hull and machinery and what is covered, in the words of Mustill J, is the "pecuniary consequences of physical loss or damage to the ship".


No cover is provided in respect of any of the other matters set out in s.16(1) of the Act.



In those circumstances, and adopting Mustill J?s approach in The Captain Panagos DP, he submitted that the appropriate measure of indemnity in this case (assuming liability and a constructive total loss were to be established) would be the market value of the Vessel at the time and place of her loss. In this case, that is agreed as $800,000.



In my judgment Mr Davies? submissions on this point are correct and the approach of Mustill J?s in The Captain Panagos DP falls to be adopted. Accordingly, I hold that the insurable value of the Vessel is the agreed figure of $800,000, namely the market value of the Vessel at the time and place of her loss.



Finally, I should like to express my appreciation to both counsel for the efficient way in which this case was argued in front of me and their helpful written submissions.