South Pacific Import Network Company Ltd v National Insurance Company of New Zealand Ltd [1985] CKHC 12; Plaint 20.1981 (18 June 1985)

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For Plaintiff: Mr D.S. Firth and Mrs Sheetz
For Defendant: Mr D.A.R. Williams & Mr R. Van Pan Huys

This is a supplementary Judgment, following upon the Judgments of this Court dated 1.7.1983 and of the Court of Appeal dated 19 December 1984. The matter referred back for further hearing in this court by the Court of Appeal, is the interpretation of Certificate No. 12 held by Captain Lumbers. It was issued by the Cook Islands Marine Board on the 10th July 1967 and it is headed "Provisional Certificate of Competency". In its material part it says:-

"To Derek Lumbers: Whereas it has been reported to the Cook Islands Marine Board that you may be deemed qualified to fulfill the duties of Master, the Board in pursuance of the Cook Islands Shipping Ordinance 1963 hereby grants you this Provisional Certificate subject to review within 12 months.

It will of course be remembered by all parties that the validity of a certificate of competency in the hands of Captain Lumbers was the crucial point to be determined concerning one of the defences put forward by the insurers; namely that the plaintiff company was in breach of its Regulations Warranty under the Insurance policy. In particular the matter concerned the alleged breach by the Plaintiff Company of section 9(1) of the Shipping Ordinance 1963 which requires that:-

".....when proceeding to see from any port or island of the Cook Islands (every ship) shall be provided with a Master and an Engineer who are the holders for the time being of a valid certificate of competency issued by the Board".

Other defences have been examined and disposed of at the earlier hearings and the only question now remaining for determination is the matter specifically referred back by the Court of Appeal, viz: Has the defendant insurer discharged the onus of proof upon it of satisfying the Court that Captain Lumbers was not, at the relevant time, the holder of a valid certificate of competency.

It is now known that apart from his earlier Foreign going Certificates from Honduras and from Panama, Captain Lumbers has at different times received from the Cook Islands Marine Board three different certificates:

Whereas it has been reported to the Cook Islands Marine Board that you have been found duly qualified to fulfill the duties of Master on "Tagua" on a voyage to New Zealand and return, the Board in pursuance to the Cook Islands Shipping Ordinance 1963 hereby grants you this Provisional Certificate to remain in force for the present voyage of M.V. Tagua.

Secondly: Certificate No. 12, already recited is described as a provisional certificate but is not limited as to vessel or as to a specified voyage.

Thirdly: Certificate No. 19 was issued on 20 November 1969. It is headed "Certificate of Competency" with no reference to the word "provisional" either in the heading or in the body of the document. In its material part, it says:-

"The Cook Islands Marine Board hereby grants you this Certificate of Competency to fulfill the duties of Master on "Bodmer" operating principally within the Cook Islands, this certificate to be subject to review by the Marine Board at any time.

It is to be noted that there are important differences between the wording contained in each document. Two of them are headed as a "Provisional Certificate of Competency". The third is not. There is no provision in the 1963 Shipping Ordinance for provisional certificates, nor indeed is it provided that the certificate may be limited to a given voyage or to a certain ship. Nevertheless there could be, so it appears to me, no objection to the way in which these certificates were worded, except for the ambiguity which attaches to Certificate No. 12. Section 11 of the Ordinance, which authorises the Controller of Customs (thence his successors) to deliver to qualified applicants a Certificate of Competency, describes the same as being "such a certificate of Competency as the case requires".

As was said in the original judgment of this Court dated 1 July 1983, it would be a desirable practice for certificates to be limited for vessels up to a certain tonnage or within a certain geographical area if the skills of the applicant required such a limitation to be imposed. Similarly there would seem to be no valid reason why the limitation should not apply to a given voyage or to a given ship. Accordingly certificate No. 6 would appear to be plainly within the powers of the issuing authority. No challenge therefore could, so it would seem, be legitimately made to the restrictions placed on Captain Lumbers in Certificate No. 6 described as "provisional" by virtue of being limited to one voyage on a nominated vessel. That would appear to be well within the terms of section 11: "such certificate as the case requires".

Different considerations might have applied were one testing the validity of certificate No. 19 - the "Bodmer" document. There, it will be observed, the certificate, not stated to be provisional, was declared to be "subject to review by the Marine Board at any time". There are certain specified provisions in the 1963 Ordinance whereby the Board may suspend or cancel the certificate or methods whereby it may be otherwise forfeited; Section 13 provides that the Board may cancel a Certificate of Competency in certain stated circumstances - principally for conviction for an offence under the Shipping Ordinance or for an offence under the general criminal law or in cases of certification by a medical officer of physical or mental incapability or incapacity - in the case of a holder who has passed the age of 65. In some cases, the Board may require the holder of a certificate to be re-examined by a medical officer. Corresponding powers are given to a Court of Inquiry by Sections 76 and 77, where, consequent upon a shipping casualty, an inquiry may indicate a lack of competence. In such cases the court may cancel or suspend the certificate after an appropriate Marine Inquiry. Given the special provisions as to the circumstances in which the Board could suspend or cancel, it could well be a debatable point if it was suggested that a certificate could be issued which could be subject to review by the Marine Board at any time upon any grounds, or even at the whim of the issuing authority; it might well be that the suggestion that such a limitation was placed upon the certificate or such a power was reserved would be ultra vires the provisions of the ordinance. Questions of that sort however do not arise concerning the Certificate No.19, but obviously they have great relevance when we turn to Certificate No. 12.

Now it has been conceded by Mr Firth, counsel for the plaintiff, both in the Court of Appeal and in the further hearing before this court that until argument was heard in the Court of Appeal, no reliance was placed by the plaintiff upon Certificate No. 12 as fulfilling the obligation under the Regulations Warranty. At all times in the pleadings, in the answer to interrogatories, in the conduct of the case in the High Court, in the evidence given and in the submissions then made, the sole claim as to a valid Certificate of Competency was in respect of the "Bodmer" Certificate No. 19. Sir Thaddeus MacCarthy delivering his Judgment in the Court of Appeal pointed out that Certificate No. 12 was only casually introduced by Captain Lumbers: indeed as the record shows, part way through cross-examination. No attention had previously been directed to it, it being assumed by counsel, by Captain Lumbers and by me at that stage that this was another provisional certificate relating to a voyage to New Zealand. That was specifically said in evidence. Further examination has demonstrated, as the Court of Appeal has shown, that there was in it no restriction as to vessel or as to voyage. It was submitted on behalf of Spinco in the Court of Appeal that a conclusion could be safely reached there that Certificate No. 12 availed the then appellant company to the extent that would justify the appeal being allowed.

However, as the various Judges in the Court of Appeal pointed out, there was no real scrutiny placed upon this certificate in the High Court hearing, and Mr Williams, counsel for the respondent insurer, protested that he had been deprived of the opportunity of exploring the validity of this certificate and canvassing evidence concerning it. The matter was, as we all appreciate, referred back to this Court so that the parties could have the opportunity of calling further evidence and making further submissions. This opportunity has been availed of in full, and indeed some substantial fresh evidence was put forward when the matter was heard further by me in Auckland on the 17th and 18th April 1985. A number of witnesses were called by each side, and also, most interestingly, it transpired that consequent upon the Court of Appeal's direction, Mr John Damm, the Managing Director of Spinco had returned to Rarotonga and had searched diligently under Captain Lumber's house and had unearthed a number of documents, some of which have relevance to the question at issue.

I think it desirable to refer briefly to the various additional witnesses that were called at the continued hearing. On behalf of the appellant we heard from four witnesses. First there was Laslo Kajer, a Marine Engineer, resident in Rarotonga. He had served on the Cook Islands Marine Board between 1965 and 1978. He remembered Captain Lumber's application which led to Certificate No. 12. He remembered that the Board had been satisfied that Lumbers had certain foreign certificates and although these were in the Spanish language, he, Mr Kajer, was sufficiently conversant to be able to decipher them as genuine, and according to his recollections, the Board agreed that Lumbers was a qualified person. He had no real explanation to offer to explain why Certificate No. 12 was headed as "provisional" and why it was said to be "subject to review within 12 months". He could not recollect that as being a decision that he had been party to, and he thought that perhaps that the wording had been determined by Mr Perry, who was the Controller of Customs who signed the certificate, and that it was Mr Perry's independent decision after the Board meeting. In cross-examination Mr Kajer was asked to account for evidence which Captain Lumbers had given in the original hearing when Lumbers had said that he originally had provisional licences for a year and these were renewed from time to time. Mr Kajer said he had no recollection of renewals from time to time. Indeed he said that he was confident that there had not been any renewals because he had not understood there to have been any call for them. He was also questioned why, if his recollection is accurate, there had been any need to issue a "Bodmer" certificate in 1969, and this indeed is a very important question. He said that to the best of his recollection the "Bodmer" had been trading under the Browne Shipping Company to New Zealand and the New Zealand maritime unions were proving very troublesome about foreign ships arriving in their country with manning scales at a lower figure than was required for New Zealand registered ships. He said that in his recollection, the "Bodmer" Certificate was given with its reference to "operating principally within the Cook Islands" as a means of enabling Captain Lumbers and his employers to satisfy the New Zealand maritime unions that any trips to New Zealand were casual and that they were not trespassing into those water for trade. I digress to say that there is considerable support for the claim that there were troubles with the unions in this respect, and it sounds a valid reason for issuing a supplementary, and so it would seem, unnecessary certificate. On the other hand the evidence of Mr Silk called by the respondent, now the Defendant was to the effect that when Captain Lumbers took over the "Bodmer" Brownes had just purchased the ship and it was not intended at that stage to continue trading to New Zealand. Further evidence which should be mentioned on this aspect is an old copy of the Cook Islands News which was also located under Captain Lumber's house. This copy of the paper was dated 7 November 1967 and its lead article concerns the vessel "Bodmer" and the fact that Mr Lumbers "who has the necessary Marine papers to command the ship" was about to take command. This information was confirmed by Mr Silk and it is of considerable support to the plaintiff's case to note, on this dilemma concerning the "Bodmer" certificate, that that document was not issued until November 1969 but Captain Lumbers received Certificate No. 12 in July 1967 when, so he says, he was due to take the "Tagua" to New Zealand for one voyage but was also aware that he was about to receive the full time command of "Bodmer" as indeed the newspaper report shows he did. On this topic therefore there is some evidence that Certificate No.12 was not, as Captain Lumbers apparently thought at the time when he produced it, as an after thought part way through the original hearing, another single trip to New Zealand certificate of the same variety as certificates No.6 but was intended to be of more general application and not limited to one vessel or to one voyage.

For the sake of completeness one may also note certain other documents which have recently unearthed and were produced at the resumed hearing. It will be remembered that Certificate No.6 was dated the 26 March 1965, yet there is a letter from the Minister of Immigration to Mr Lumbers, then in the U.S.A. dated the 5 August 1965 saying that subject to passing an eye test, he would be issued with a re-entry permit and with a Certificate of Competency by the Marine Board. No great significance can be taken from this except to illustrate what has already been concluded; namely that the records of some of the Cook Islands Government Departments of that time and particularly of the Marine Board do not always appear to be in order. It is possible that certificates were ante-dated to coincide with the Marine Board meeting but not issued until a subsequent date. We also now have the certificate of British Registry of the vessel "Tagua" and one of the endorsements upon it shows that Captain Lumbers took command on the 18 August 1967 and his Certificate of Competency at that stage was recited as No. 12, which fits correctly with the date of No. 12, viz., the 10 July 1967. Presumably it was shortly after the return of "Tagua", from whatever voyage it was then on; that he assumed command of the "Bodmer" as noted in the local newspaper towards the end of 1967. Further complication emerges from the ship's articles of the "Bodmer" also recently located. On a voyage which commenced on 17 January 1970 in which Captain Lumbers signed on as Master, his Certificate number was recited as No. 12. If matters had been executed in the sequence which the dates on the face of the documents would indicate, he should at that stage have been in receipt of Certificate No. 19. This may lend colour to the thought that Certificate No. 19 was produced primarily for the information or misinformation of the New Zealand maritime union.

In submissions which were made in this court by Mr Williams on behalf of the defendant insurer, it was said that the evidence now tendered and the submissions now made in support of certificate number 12 were to be treated with considerable reserve because for a master mariner his Certificate of Competency, is his primary document entitling him to employment and to command, and it would be most strange if a master was not, at any given time, confident of the documentation which gave him that entitlement. It was submitted that the reliance at the original hearing by Captain Lumbers on the "Bodmer" certificate demonstrated that he himself had regarded Certificate No. 12 as having been an interim only for a limited period which had expired or had been replaced by the "Bodmer" certificate. When his submission was originally made to me at the original hearing it commanded a deal of respect but this set of Ship's articles seems to turn the argument around in that it shows that in January 1970, after the purported date of issue of the "Bodmer" certificate, Captain Lumbers signed himself on in the ship's articles, which are as a Bible for mariners, and recited No. 12 as his validating Certificate of Competence.

I have digressed from the recital of evidence of Mr Kajer to anticipate other evidence which emerged by way of comment upon his, but it seemed to me that this was the appropriate time in which to comment on it. Returning to the witnesses. We then had Mr T.H. Perry, a retired New Zealand public servant who had been seconded to the Cook Islands Administration for a number of years. He was the Controller of Customs and thus the Chairman of the Marine Board from 1963 to 1969 and it was his signature which appeared on Certificates No. 6 and 12. As with Mr Kajer, he remembered Captain Lumber's arrival in the Cooks. He identified Certificate 12 as issued by him but he was in disagreement with Mr Kajer concerning the approval which had been granted by the Board. He said that it was a decision of the Board that his certificate should be made "provisional". He said it was a practice of the Board to issue provisional certificates if a person was an unknown quantity locally.

The inference which he wished to be taken from this evidence was, as I understood him, that it was a wait-and-see affair, so that the Board could, if it thought suitable, decline to issue a permanent certificate and indeed could as I understood his contention be authorised by the reservation there contained to withdraw the certificate if they revised their opinion as to competence. I understood him to claim that the authority for placing this reservation on an initial certificate or an early certificate were the words in ordinance Section 11 "such certificate as the case may require". I anticipate later discussion upon this topic by saying that whereas the No. 19 reservation may have been ultra vires I accept the view tendered by Mr Perry that it would be within the powers of the Board to issue a limited certificate subject to review in specified circumstances. The crux of the whole case of course is however: "What was the effect of the way in which the Board on this occasion worded its Certificate?" given that the Board wished to have a probationary supervision over Captain Lumbers. Indeed, it is perhaps necessary to record that evidence given at the original hearing, and other circumstances which were discussed in court though not recorded, indicated that some of Captain Lumber's personal characteristics may from time to time have given some persons misgivings as to his long term reliability, independently on his seamanship qualifications.

We then had the evidence of Mr. F.C. Thorburn, a retired gentlemen now living in Rarotonga, who had held a number of senior administrative posts with the Cook Islands Government and in particular was the Chairman of the Marine Board between March 1969 and April 1972. It is his signature on the "Bodmer" Certificate No. 19. His recollection was that this was not Captain Lumber's first certificate; that he understood Captain Lumbers was already the holder of a certificate and it was he who principally put forward the evidence already referred to that the purpose of this certificate was to indicate that this was primarily a vessel trading in the islands, and was done for the purpose already referred to. He said it was not his understanding that this certificate was to replace the existing certifications held by Lumbers. The final witness called on behalf of the plaintiff was Mr John Damm, Chairman of Directors of the Spinco. It was he who had retrieved the additional documents which have been referred to and he confirmed that Certificate No. 12 was used by Captain Lumbers as his authority to command the "Tagua" up until August 1967 at which stage that vessel was sold. Thereafter it was used by Lumbers and understood by Damm to authorise him to command the "Bodmer"; and that he did command the "Bodmer" prior to the issue of Certificate No. 19 and this was consistent with a claim now advanced that Certificate No. 12 was valid for that purpose. He gave confirmatory evidence concerning the trouble with the New Zealand Unions at that time.

Mr Williams called 3 witnesses on behalf of the defendant. The first two were Maritime experts Captain John Harrison, who is the Chairman of the Marine Board of Fiji and a man of vast experience in this field, and Mr Frank Stolberger, Senior Officer of the Ministry of Transport in New Zealand, and the senior examiner for that country for Masters and Mates. These two witnesses, both of whom I accept as being experts in this particular field of certification of Masters, were invited to give expert evidence to assist the court on what might be practiced within the profession which could be relevant in interpreting the ambiguity, such as it may be, in Certificate No. 12. Each man said that had Certificate No. 12 been produced to him, within the limits of his jurisdiction, more than 12 months after the date of its issue, he would not have regarded it as valid, and would have been of the opinion that Lumbers held no Certificate of Competency based on that document. This somewhat general evidence however, was modified in cross-examination when each witness agreed that he was speaking in terms of the Certificates which he would expect of a Master in Fiji or New Zealand Registries respectfully. In cross-examination, each agreed that had he thereafter checked with the Cook Islands Marine Board and been assured that it took a different view then no action would have been taken on his part. It was conceded by Captain Harrison that Fiji does not have such things as provisional certificates. They have a temporary certificate which are expressed as being valid until some stated date or event, such as the passing by the holder of some other qualifying examination. Similarly Mr Stolberger agreed that he had not seen any other document which contained the words "subject to review within 12 months" and had no knowledge of "Provisional Certificates" much as I respect the qualifications of these two gentlemen, I cannot regard their evidence as throwing much light on the problem nor as establishing that the words quoted have an accepted and special meaning within a particular trade or profession. For that reason the material was of no help for the purpose for which it was tendered, namely to interpret a supposedly ambiguous document. The third witness for the defendant was Mr Don Silk, the well known proprietor of the major shipping company in Rarotonga. He has employed Captain Lumbers from time to time, in particular when Silk and Boyd Limited owned the vessel "Tagua", and they had made the application on Captain Lumber's behalf which led to the issue of Certificate No. 6 which was, as we have seen, solely for one voyage in 1965. There was another survey voyage in 1966, also to New Zealand, but that was under the command of another Master and then again they employed Lumbers to take the "Tagua" to New Zealand in 1967 for a survey voyage. It is clear that Certificate No. 12 was applied for in 1967 prior to Captain Lumbers requiring it to make that voyage in the "Tagua" but it is uncertain whether he filed the application or whether it was done by Mr Silk. That gentleman said in his evidence "the certificate would have been applied for that voyage - we were not intending to employ him for other than that voyage". He also said that the Marine Board used to issue provisional certificates for particular purposes - "they seemed to be reluctant to do more than that" and "after that I don't think Lumbers served us again". This may well have been Mr Silk's understanding of the purpose of the application which lead Certificates No. 12, but Captain Lumbers said in his evidence that he had been intending to apply for jobs in respect of other vessels with other companies and indeed the fact that he had command of the "Bodmer" not later than August 1967, which was 2 years before Certificate No. 19 seems to confirm his claim in this respect. The "Bodmer" was at that stage a recent acquisition by Browne and Company and it was in their employ that Captain Lumbers sailed it until it was bought in 1969 by Silk and Boyd. It seems from Mr Silk's evidence that the application which led to the issue of Certificates No. 19 in November 1969 was an application which had been put in by Silk and Boyd. He said "we applied for a Certificate of Competency which was issued and was not restricted to that voyage; it was issued to cover a trip to Fiji." He said that he did not at that stage intend to take the vessel to New Zealand anymore although it had been earlier employed on that run by Browne's. Whether or not that change of plan was known to the Marine Board or whether they issued the certificate in the way they did for the reason given by Mr Thorburn, one can only guess. Nor can we know from Mr Silk's evidence now, 16 years later, whether at that time he was aware that Certificate No. 12 was in the form that it was. Certainly he knew at that time that Lumbers had been in charge of the "Bodmer" for several years and it may be that the change of ownership was going to require a wider certificate in Mr Silk's mind than he may have thought that Lumbers had. Certainly it is now impossible to ascertain why that certificate was applied for; on the one hand it has been submitted that Lumbers knew at that time that he needed a certificate to replace a provisional one; but on the other hand that seems run counter to the fact that he had been trading on the provisional certificate for whatever its true meaning was for some years. Despite criticisms which have been made of some of Captain Lumber's personal idiosyncrasies, there is no doubt that when he took charge of "Tokerau" he behaved with the insistence that one would expect from a Master Mariner, by endeavouring to get his certificate from Mr Chapman to cover the new vessel. So it could not be fairly said that he was irresponsible to the point that he had been going to sea in charge of a ship for some years between 1967 and 1969 knowing or believing that his certificate had expired.

That concludes a lengthy and somewhat disjointed recital which was necessary to cover the additional evidence which has been given. I turn to the submissions which have now been made as to the true construction of Certificate No. 12, because it is conceded by Mr Firth and indeed it was clearly said by the Judges in the Court of Appeal that the "Bodmer" certificate was of no avail as indeed this Court had held as the basis of the original decision against the plaintiff. It is clear that the decision must be made on the interpretation of the crucial words "provisional certificate subject to review within 12 months". It is contended this is ambiguous. On the one hand it is claimed that it means it was a temporary certificate due to be reviewed no later than 12 months from its date, and if not reviewed and re-issued in the same or more permanent form then it expired at that time. The alternative submission is that it is a provisional certificate, that is to say a temporary one which might terminate upon the occurrence of some circumstance but that circumstance did not arise, and hence it has run on as a provisional or temporary certificate even to this day. As was observed, partly in jest, during the course of the hearing many temporary matters remain so and yet are valid for a number of years. One is all too well aware that temporary classrooms can exist at a school for a generation, and temporary ranks in the military forces have often survived from the commencement to the cessation of hostilities. I admitted a deal of EXTRINSIC evidence from each side at the resumed hearing, some of doubtful admissibility, but under the Cook Islands civil procedure rules much greater liberty is available than in some other jurisdictions. But this did little to assist. Certainly the intentions of the licensing authority, are of no relevance, unless expressed in the document. However the evidence produced from Messrs Kajer, Perry and Thorburn was admissible in giving the background - namely:-

(a) The "Bodmer" certificate was issued at a time when the authority knew of the New Zealand Union activities and knew that he had been employed as master on other vessels and indeed on "Bodmer".

(b) At the time of Certificate No. 12 Lumbers had not been interested in a solely one New Zealand trip; and his subsequent engagement confirms this. I take him to be conscientious in this respect at least, and it shows that he was not a man to take a command (1967-69) knowing or believing he only held a one-trip certificate.

The evidence of Captain Henderson and Mr Stolberger has already been discussed - it did not demonstrate any special or trade meaning which could be attached to the words in dispute. One must therefore attempt to interpret from ordinary meanings, and a commencement point must be ordinary dictionary definitions.

"Provisional" is defined in the Shorter Oxford Dictionary as "of, belonging to, or of the nature of a temporary provision or arrangement; provided or adopted for present needs or for the time being; also, accepted for use in default of something better".

"Subject to" - "exposed or open to; prone to or liable to suffer from something damaging, deleterious or disadvantageous.... dependent upon a certain correcting or modifying condition; conditional upon".

Mr Williams submission is that the provisional nature of the certificate indicated that it inured until something better took its place, and that that occurred when the "Bodmer" certificate was issued on the 20th November 1969 which was not in its turn a provisional certificate or at least not so expressed, although I have already expressed my doubt as to the validity of the reservation purportedly made that it could be reviewed at any time. If one accepts that that restriction was of no effect, nevertheless one questions whether the "Bodmer" was a better certificate than No. 12 for it was limited to one named vessel and it was supposedly to be valid principally within the Cook Islands, whereas No. 12 was not limited as to vessel or as to geographic area. Dealing with this definition alone, I could only accept such a submission if Certificate No. 12 was so worded as to indicate that it was temporary and would lapse after a certain date or upon the happening of a certain event and that date or that event had arrived, as instance Certificate No. 6. In my view the words "subject to review within 12 months" do not indicate that that was a terminal date at which the provisional or temporary nature expired. The definition of "subject to", as already recited, does not LEAD me to that conclusion. On the contrary. The use of the words appears to me, in the context of that definition to place the certification at risk only if and when the modifying or correcting condition has risen; and the modifying condition is a "review within 12 months".

Though it could have been more happily expressed this phrase appears to me to accord with the evidence given by Mr Perry that it was the practice of the Board to be cautious with persons who were comparatively unknown or who needed to prove their abilities and that in order to arm itself with the power to rescind, bearing in mind the restrictions and limitations on the operation of Section 13, the Board availed itself of the right which it believed it had under Section 11 (1) to recall certificates, if within a given period it had grounds to reverse its opinion. That being so in the event that no such cause had arisen within the 12 months period, the limitation possibility had been lapsed, and hence the certificate became no longer provisional.

The only authority that counsel were able to refer me to was the decision of the Court of Appeal in England Branca v Cobarro 1947 1KB 854. Mr Williams relied upon the passage at page 858 where Lord Green said:-

"The ordinary meaning of the word 'provisional' I should have thought was something which is going to operate until something else happens. If it was intended to show that the parties regarded themselves as entering into an agreement which was to last only until something else took its place or superseded it, the word 'provisional' would be the proper and apt word to describe that intention."

I do not see anything in that passage which runs counter to the view I have already expressed. Indeed it is to be observed that the learned Master of the Rolls was expressing that view as corrective of the interpretation which Denning J. at first instance had placed on the word "provisional" when he had said it meant "tentative". As the Master of the Rolls pointed out tentative is not a meaning which is in common with provisional. Tentative means something quite different from that expressed by provisional and a provisional occurrence or situation is one which subsists until something further occurs to change it. I accept Mr Firth's submission that if the provisional agreement in Branca's case had not been superceded by a "legalized agreement" then the provisional agreement would have continued indefinitely. I also accept the submission made by Mr Firth that as the suspending or reversing circumstance upon which the provisional nature was expressed to depend had not arisen the certificate was no longer provisional after the expiry of 12 months. The consequence of this therefore is that, contrary to the view previously expressed before this matter had been fully explored and before we had the additional evidence, I conclude that it has not been demonstrated by the defendant that at the relevant time the plaintiff's vessel was not under the command of a Master who held an appropriate Certificate of Competency. The defence on this and other grounds having failed, judgment must be for the plaintiff. At an earlier stage quantum had been contested, but counsel have advised that the claim for constructive total loss has been abandoned and if liability is held to exist, then the sum of $291,764.85 is agreed upon as being payable to the Plaintiff in accordance with the following figures:-

1.	Depreciation not exceeding reasonable cost of repairs			$270,000.00
	PLUS
2.	Salvage costs			26,892.00
	PLUS
3.	Sue and Labour			6,090.85
				$302,982.85
	LESS	Deductible	$1,000.00
		Unpaid premium	6,200.00
			7,200.00
				7,200.00
				$295,782.85
	LESS	Costs of Appeal	$3,000.00
		Travelling
		Expenses	418.00
		Accommodation	600.00
			4,018.00
				4,018.00
				$291,764.85

The general rule, as stated in Hardy Ivamy (4th Edition) is that interest should be awarded when a Plaintiff has been put to strict proof by its insurer, and has succeeded. Two matters have been raised as requiring special consideration.

(a) The time taken from the casualty until the hearing. It certainly was a very long period, and was by no means contributed to by any delay in obtaining a fixture from the Court. It was complicated litigation with much of the time prior to trial being taken up in preparing the case in the face of the many special defences raised - including in particular the expenses of a hearing in Fiji on the intoxication issue. I do not think the claim by the Defendant that the Plaintiff was tardy can be sustained in the circumstances.

(b) The additional time which has been taken by the Court of Appeal hearing and the subsequent further hearing by this Court. This arose from the failure by the Plaintiff to appreciate the significance of Certificate No. 12 and more particularly the failure to produce the additional evidence brought to light subsequent to the Court of Appeal hearing. Despite Mr Firth's submissions the Defence had been put in notice as to the existence of this document, the responsibility for exploring the circumstances surrounding its issue and hence the value of it lay with the plaintiff. Had it been produced at trial it would, as this supplementary judgment decides, have been decisive. Interest is therefore awarded at 8% on the amount of the judgment from 1/2/1981 to 1/7/1983.

There can be no argument but that the Plaintiff is entitled to its costs on the proceedings up to 1.7.1983, including costs to be fixed by the Registrar for the taking of evidence in Fiji and for travelling expenses and accommodation of witness to Fiji and Rarotonga. The debateable matter concerns subsequent costs - involving considerations similar to those just discussed under Interest subpara (b) (supra).

The Court of Appeal has of course dealt with the question of costs there. I have no jurisdiction in that matter, except to say that I respectfully agree. Indeed a fortiori for it now emerges that not only was the (now) successful argument not previously advanced, but there were even witnesses who were not produced. However, had these been called in Rarotonga and had the submissions heard in Auckland been made there, the hearing would have taken the same additional time - viz., 2 days. So Plaintiff is entitled to an extra two days costs of hearing. But of the 4 extra witnesses - three of them would have been in Rarotonga - so expenses to Auckland cannot be allowed. By the same token however Mr Perry would have had to go to Rarotonga, so one notional witness's Auckland-Rarotonga travelling expenses can be allowed. The Registrar is to fix costs accordingly. If there is any difficulty the matter can be referred back to me.

High Court of the Cook Islands

South Pacific Import Network Company Ltd v National Insurance Company of New Zealand Ltd [1985] CKHC 12; Plaint 20.1981 (18 June 1985)