Skandia Insurance Co Ltd v Skoljarev [1979] HCA 45

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Aickin JJ. Skandia Insurance Co Ltd v Skoljarev [1979] HCA 45

ORDER Order dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 28 Barwick C.J.

In considering this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I agree with his account of the evidence given before the primary judge, with his analysis of the findings of the primary judge, with his discussion of the relevant case law and with his reasons for his conclusion that the appeal should be dismissed.

I desire to add briefly on my own account that the appellant's argument as to the onus of proof of seaworthiness of the vessel at the commencement of the voyage was, in relation to the facts and circumstances of this case, misconceived. The onus of proof in truth played no part in the resolution of the case. The respondents, not being able to point to any contribution of the elements to account for the entry of water into the hull of the vessel, had perforce to rely on the inference that that entry into a seaworthy vessel was due to or itself amounted to a peril of the sea. That is to say, to attribute the loss of the vessel to a peril of the sea necessarily involved, in the circumstances of this case, a conclusion that the vessel was seaworthy. As in this case the actual cause of the entry of the sea water was not found, there was no room for the view that, if the vessel were unseaworthy, the loss was none the less not due to her unseaworthiness. Thus, as part of the proof of the cause of the loss, the respondents needed to establish that the vessel was seaworthy when put to sea.

The respondents gave very strong evidence of seaworthiness. My brother Mason in his reasons gives the details. The appellant's sole attack on this evidence was as to the condition of the piping of and associated with the bait tank. The primary judge found positively that that piping was not defective: and that, in any case, its suggested defect could not have caused the entry of water which caused the loss. He did not merely reject the appellant's case of unseaworthiness; but, in rejecting it and having the positive evidence of seaworthiness, he was in a position to infer that the entry of the water into the hull, in the quantities in which it did enter, was itself a peril of the sea. At no point had he need to rely on any question of onus of proof. As required by law, he took into account all the facts proved before him and concluded as a matter of fact, though derived by inference, that the loss was due to a peril of the sea.