Port Nicholson of the Port Line Ltd

Below is the entire deposition of the UK DFT, the ones that are fighting so hard to get the wreck of the Port Nicholson away from us. Read it for yourself, then ask yourself this question: If there’s nothing on this wreck why fight so hard? They have never litigated before on a freighter so why now? Why not just let us go out and prove it one way or the other?

There are many more things in this case that the people do not know about but will learn soon enough. Like, why the UK attorneys have the press writing stories that try to put us as the bad guys, trying to get the Maine SEC after us, destroying evidence, back door deals, sabotage and so much more! Follow us as we furnish facts that are not known to the public. More to follow soon!

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
PORTLAND DIVISION
IN ADMIRALTY
CASE NO.:08-cv-00272-GZS
SEA HUNTERS, LP, )
Plaintiff, ))
V. ))
S.S. PORT NICHOLSON, ))
Defendant. )

VIDEO DEPOSITION of THE SECRETARY of
STATE OF TRANSPORT of the UNITED KINGDOM
(“UK DfT”), by ROBERT T. COUSINS, taken pursuant
to notice dated January 13, 2014, commencing on
January 23, 2014, at 10:28 A.M., and continuing on
January 24, 2014, at 8:28 A.M.
Court Reporter: Maureen Lockhart-Wagner, RPR-CM
Reporting at the Offices of Preti Flaherty,
One City Center, Portland, Maine, USA
APPEARANCES:
At the Offices of Preti Flaherty,
One City Center, Portland, Maine, USA:
For Sea Hunters, LP:
MARSHALL J. TINKLE, ESQ.
For the United Kingdom Department for
Transport (UK DfT):
TIMOTHY P. SHUSTA, ESQ.
MICHAEL KAPLAN, ESQ.
For Mission Recovery:
SETH S. HOLBROOK, ESQ.

At the Offices of the Secretary of State of
Transport of the United Kingdom, Great Minster
House, 33 Horseferry Road, London, England:
ROBERT T. COUSINS, Deponent
CAROLINE BOONE, Esq.
Marine, Environment and Planning Division
Department for Transport
January 23, 2014
ROBERT CAUNE, Esq.
Marine, Environment and Planning Division
Department for Transport
January, 24, 2014
INDEX
Deponent: ROBERT T. COUSINS
Examination by: Page
Mr. Tinkle 6, 173
Mr. Holbrook 147
EXHIBITS
Number Description Page
63 Rule 30(b)(6)Deposition of 9
Secretary of State of Transport
of the United Kingdom – 1/13/14
64 Newspaper article – “Closer 51
Control of Shipping – 1/5/40
65 Liner Requisition Scheme – 28
1/30/40
66 Charter Party – 1/9/40 33
67 Charter Party 33
68 Liner Requisition Scheme – 38
1/26/40
69 Agreement Between the Liverpool 49
and London War Risks Insurance
Association Limited and the
Minister of Shipping on Behalf
of his Majesty – 5/6/40
70 Memorandum on War-Time 55
Financial Arrangements Between
His Majesty’s Government and
British Shipowners – August
1940
71 Service List – September 1, 26
1946 – British and Foreign
Merchant Ships
72 Commonwealth & Dominion Line 56
Limited Minute Book
73 Weekly Casualty Reports 71
Friday, June 19, to Thursday,
June 25, 1942
74 Photocopy of Lloyd’s index card 72
with handwritten notes of
Port Nicholson information
75 Agreement between Liverpool and 74
London War Risks Insurance
Association Limited and the
Minister of War Transport –
1/20/42
76 Agreement Between the Board of 79
Trade and The Liverpool and
London War Risks Insurance
Association, Limited, for
Re-insurance of British Ships
Against King’s Enemy Risks –
9/22/39
77 Photocopies of pages of ledger 82
book of Schedules of Claims
Passed for Payment
78 Photocopies of index cards 94
prepared by the Ministry of War
Transport re Port Nicholson war
risk insurance claims
79 Lloyd’s War Losses 101
The Second World War
3 September 1939 – 14 August 1945
80 Port Nicholson vessel movement 105
Index cards
81 Navy Department Intelligence 107
Report – Enemy Attack of
Merchant Ship 6-15-42
82 Document re Port Nicholson 110
sinking
83 United States District Court 125
District of Maine
Sea Hunters, LP v. The Unidentified,
Wrecked and Abandoned Vessel,
In rem
Verified Statement of Right or
Interest – August 2009
84 Mission Recovery, LLC 127
Secretary of State for Transport of
the United Kingdom
7/2/13 Meeting Agenda
85 (Not referred to) 135
86 Letter – M. Kaplan, Esq., to Hon.
John H. Rich, III – 12/26/13
87 Draft – Note of a Meeting on 113
Insurance of Cargoes from USA to
Russia Held at the Ministry of
War Transport on 11th October,
1943
88 Photocopy of Navy Department 163
Intelligence Report Enemy Attack
On Merchant Ships – 6/14/42
89 Commonwealth & Dominion Line 169
Limited Minute Book
90 Photocopies of Schedule of Claims 167
Passed for Payment ledger book
pages and handwritten notes
91 Photocopies of index cards 162
ROBERT T. COUSINS, having been duly sworn by the
Notary Public, was examined and deposed
as follows:
EXAMINATION
BY MR. TINKLE:
Q. Mr. Cousins, my name is Marshall Tinkle. I
represent the plaintiff in the — the case that’s
been filed in the United States District Court —
District Court for the District of Maine, Sea
Hunters, LP versus SS Port Nicholson.
Just to get a couple of preliminaries out of
the way, the parties have agreed to conduct this
deposition by video link. We’re all sitting in
the offices of your local counsel, Preti,
Flaherty, in Portland, Maine. And I understand
you’re in London, England; is that correct?
A. That’s right.
Q. And are you in your — your regular office?
A. This is the Department for Transport. Yes, this
is our office now.
Q. And we’ve also agreed that you will be sworn in
and were just sworn in by a court reporter in
Portland; and that will have the same effect as —
as if you were sworn in in London. Do you
understand that?
A. I understand, yes.
Q. And we’ve also agreed that due to the time
difference we have, we’re starting this deposition
at approximately 10:30 Eastern Standard Time, and
I understand that it’s 3:30 where you are; is that
correct?
A. It is, yes.
Q. So we’re going to — we’re going to have this
deposition go until 6 P.M. your time or 1800 hours
your time, and then do the rest of the deposition
tomorrow.
A. Yes, that’s correct.
Q. Now, there is someone else with you, I understand.
Is that — Ms. Boone is her name?
MR. SHUSTA: Mr. Tinkle, Ms. Boone is an
in-house lawyer for the Department for Transport.
Q. Okay. So she is acting as your counsel in London
today; is that correct?
A. Yes, that is correct.
MR. TINKLE: And I’m sorry that you have a
bad cough.
MS. BOONE: Thank you.
Q. Could you please state your full name for the
record?
A. Robert Thomas Cousins.
Q. And do you generally go by Rob or Bob?
A. I’m sorry. Could you repeat that, please?
Q. Do you usually go by Rob or Bob?
A. Rob is fine, thanks.
Q. And you don’t mind if I call you Bob?
MR. SHUSTA: Rob.
A. Yes, that’s fine, yeah.
Q. What is your position with the Department for
Transport?
A. I’m a contingency planner in the Defense and Civil
Contingency Planning Branch of the Transport
Security Strategy Division.
Q. And how long have you held that position of
contingency planner?
A. Roundabout 20 years now.
Q. So you’ve had that position continuously for the
last 20 years?
A. Yes.
Q. And throughout this litigation obviously?
A. Yes.
Q. And have you ever had your deposition taken
before?
A. No.
Q. I just want to go through a couple of the ground
rules. It may be different in England; but you
need to respond to all of my questions in words
verbally. If you nod your head or say “uh-huh,”
the court reporter can’t take that down. You also
need to wait until I finish my question before you
start your response because if we’re talking over
each other, then again the court reporter can’t —
can’t transcribe that. The third ground rule is
that if I ask you a question, it doesn’t
necessarily mean that you know the answer. I
don’t expect you to guess. Will you let me know
if you don’t know the answer?
A. Of course.
Q. And finally, if you don’t understand my question,
will you let me know that so I can rephrase it?
A. Yes, I will.
Q. Are you on any medications today that would affect
your ability to answer questions accurately?
A. No, I’m not.
Q. Copies of the exhibits for this deposition have
been premarked, and I understand that you have
copies; is that correct?
A. Yes, that’s right.
Q. Could you turn to Exhibit 63? And I should say as
an aside that the reason why we’re starting at 63
is that we agreed that all depositions in this
case would be numbered sequentially. So we’re now
up to 63. Do you have that exhibit?
A. I do, yes.
Q. And you understand that this is the Notice of
Deposition of Secretary of State of Transport of
the United Kingdom?
A. Yes.
Q. And there are a series of items on Page 2 and Page
3 in which your department has been asked to
designate someone who can speak to these various
topics. Are you the person who has been
designated for all 17 of these topics?
A. Yes, I am.
Q. What did you do tot prepare for today’s
deposition?
A. I’ve looked through the papers that we’ve received
and refreshed my memory on what points have gone
before and what’s been raised in the past and
looked at the papers that we have developed over
the last period that the case has been going on
for.
Q. Can you tell me specifically what documents you
reviewed?
A. I’ve looked at the responses that we’ve made to
the requests previously.
Q. And does that include all of the documents that
were produced by the UK?
A. It does, yes.
Q. And does it include any documents that weren’t
produced by the UK?
A. No.
Q. Do you have any documents with you today other
than the exhibits that have been premarked?
A. No.
Q. Did you talk to anyone about this deposition other
than your counsel?
A. No.
Q. So nobody else in your branch or your department?
A. No.
Q. What’s your date of birth?
A. 8th of July, 1954.
Q. And how long have you worked for the Department
for Transport?
A. I believe since 1976.
Q. And you said that the last 20 years you’ve been
the contingency planner?
A. With this branch, yes.
Q. With that branch. Before that what was your
position?
A. Before that I was assistant private secretary to
the Minister of Transport.
Q. And how long were you the assistant private
secretary for the Minister of Transport?
A. For four years.
Q. And what did you do for the department before
that?
A. I was part of a prosecutions team in respect of
motor offenses.
Q. Did you have a title?
A. I don’t remember if I actually had a title. I
think it was just executive officer or clerical
officer, something like that.
Q. Are you an attorney?
A. No.
Q. So what did you do as part of the prosecution
team?
A. We transcribed documents for the court and issued
summonses.
Q. And how long did you have that position?
A. Three or four years.
Q. Did you have any other position with the
Department for Transport prior to that?
A. No.
Q. So when you began in 1976, you were part of the
prosecution’s team?
A. That’s — that’s right, yes.
Q. Could you tell me briefly about your educational
background?
A. I attended primary, secondary schools. I achieved
what we call O and A levels, part of the
certificates of education. That’s it really.
Q. So nothing after secondary school?
A. No.
Q. And secondary school I take it is the equivalent
of our high school; is that right, or does it go
beyond that?
A. I think it may go a little beyond that. I’m not
sure.
Q. What was the name of the secondary school you
attended?
A. St. Bonaventure’s Roman Catholic Grammar School.
Q. And was that a private school?
A. No, no, it wasn’t.
Q. It was a public school?
A. It was, yes.
Q. What year did you graduate secondary school?
A. I’m not sure I can remember actually. It would
have been sometime in the early ’70’s.
Q. What did you do for work after you graduated?
A. I took a job with a firm of tobacco buyers, and I
went with them to India for a couple of years.
Q. And what did you do after that?
A. I did various things, mostly manual labor, until I
joined the department.
Q. Okay. So you’ve never worked in the insurance
industry; is that correct?
A. That’s correct, yes.
Q. Who is the Secretary of Transport?
A. The Secretary of State is the Right Honorable
Patrick McLoughlin, MP.
Q. And he is the person that’s in charge of the
department as a whole, I take it.
A. That’s correct, yes.
Q. And then the department is divided into divisions?
A. Yes, essentially, yes.
Q. And what division are you in?
A. Transport Security Strategy.
Q. And what’s the name of your branch?
A. Defense and Civil Emergency — sorry, Defense and
Civil Contingency Planning.
Q. What are the responsibilities of the Defense and
Civil Contingency Planning branch?
A. We work to mitigate the effects of crises, various
emergencies, whether natural or man-made,
particularly, of course, as it affects
the transport sectors, so road, route, maritime,
aviation, across the whole transport spectre.
Q. So if a bridge collapses, that would be under your
branch?
A. We would be involved, yes.
Q. And who is the head of your branch?
A. That would be Stephen Rowen.
Q. And how many people in your branch have the same
title that you do as contingency planner?
A. One other.
Q. What are your specific duties as contingency
planner?
A. I’m responsible for the preparation of certain
plans and procedures that would be put into effect
in the event of an emergency.
Q. So you deal mainly with — with safety and
emergency issues; is that correct?
A. Not safety, no, but with emergencies, yes,
wherever they may occur, either in the UK or
abroad.
Q. So in the UK or territories that are under the
control of the UK?
A. No, any — anywhere in the world where it could
affect British interests.
Q. So, in other words, if there is an earthquake in
China and there are British citizens there,
your — your branch would deal with that?
A. We would be involved in the emergency plans and
preparations, yes.
Q. And who is your immediate supervisor?
A. That would be Stephen Rowen again.
Q. Tell me why it is that a vessel sunk during World
War II would come under your branch.
A. My branch of the department is responsible for war
risk insurance for both the maritime and aviation
sectors. We have responsibility for the
British-registered ships sunk during World War I
and II where the government repaid the insurers.
Q. And are you the person that has responsibility for
the SS Port Nicholson at this point?
A. Yes.
Q. And who assigned you that responsibility?
A. It came with the post.
Q. You don’t mean that when you assumed this — your
position 20 years ago there was any specific
mention of the Port Nicholson, was there?
A. No. Responsibility is for all British-registered
ships lost during World War I and II.
Q. So were you the person that made the determination
that the Port Nicholson came under your
jurisdiction?
A. No, that wasn’t my decision. The Port Nicholson
was lost by enemy action and as such was covered
by the War Risk Insurance Act relevant at the
time.
Q. Okay. I guess what I’m getting at is I believe it
was in 2009 the Secretary of State for Transport
intervened in this lawsuit.
MR. SHUSTA: Object to the form of the
question. We didn’t intervene in the lawsuit.
Q. Okay. You filed something — you filed papers in
this case, correct?
A. Yes, that’s correct.
Q. And at what point did you determine that you
should take that step?
A. When it became apparent that a salvage attempt was
being made that was unauthorized by this
department on a British-registered ship that had
been lost during World War II and as such is the
property of the Department for Transport.
Q. Did your branch first conduct an investigation to
determine if, in fact, the — the Port Nicholson
was — was property of the British government; or
did you simply assume that fact?
A. No. I searched our records and found evidence to
suggest that the Port Nicholson had been insured
under the government’s scheme at that time.
Q. And were those records the ones that had been
produced in this lawsuit?
A. Yes.
Q. Were there any other records that you produced —
that you looked at that haven’t been produced?
A. No.
Q. How was it brought to your attention that salvage
efforts were being proposed for the Port
Nicholson?
A. Originally we received notification via a
newspaper article which actually referred to a
ship called the Blue Baron. At that time we had
no record of any ship or any British ship being
sunk in the location that was given. It only
subsequently came to light that this vessel was in
fact the Port Nicholson and had been located off
the coast of Maine and not Guyana as was said in
the article.
Q. How did you find out that the vessel was the Port
Nicholson?
A. Because there was a subsequent article which
referred to it by name.
Q. And where was that article?
A. I believe it was in one of the Portland papers.
Q. And how was that Portland, Maine article called to
your attention?
A. I did a check on — an internet check on wrecks
and recovery and any recent discoveries that had
been made, and this one came to light.
Q. Was there an initial memorandum that you or
anybody else prepared about the ownership of the
Port Nicholson?
A. No, I don’t believe so.
Q. Did you personally do the research on the Port
Nicholson, or did somebody else in your branch do
that?
A. No, I checked.
Q. And what — what sources of information did you
check?
A. We have a list of vessels that were sunk during
World War II. The Port Nicholson occurred on
there. I also checked with the Admiralty List
which was prepared just after the war, and the
Port Nicholson appeared there as well.
Q. Who prepared the Admiralty List?
A. That was prepared in 1946 by I believe then the
Ministry of Transport in conjunction with the
Admiralty.
Q. And was that a document that your branch has in
its files, or did you have to go somewhere else to
get that document?
A. No. I had copies of that.
Q. So is it fair to say that you assumed at that
point, based on the fact that the Port Nicholson
was — was on the list of sunken vessels, that the
UK owned it?
A. It was a British-registered merchant ship sunk
during wartime by enemy action, and was,
therefore, covered by the War Risk Insurance Acts
that were relevant at that time.
Q. But there isn’t a statute that says that every
British-registered ship that — that sinks becomes
property of the UK. Doesn’t the UK have to pay
for the vessel?
A. I’m sorry. I don’t quite understand the question.
Q. Let me break it up.
Do you contend that there is a statute in
place that provides that every British-registered
ship that sinks during wartime automatically
becomes property of the British government?
A. British-registered ships sunk during wartime were
entered with the war risk insurance clubs at the
time and were reinsured through the War Risk
Insurance Act.
Q. So it’s only true though that — that they would
have to be reinsured by the — by the British
government in order to become property of the —
of the British government, correct?
A. Yes, that’s correct.
Q. And in fact, they would only become property of
the British government if the British government
paid the reinsurance, correct?
A. Yes, that’s correct.
Q. Do you know when it was that you determined that
this vessel that was the subject of proposed
salvage efforts was the Port Nicholson?
A. That was as a result of the claims made by — made
in the press regarding the identity of the vessel.
Q. But do you recall when that was? Was it in 2008,
2009?
A. It would have been after the original article
which appeared in the Daily Telegraph which
claimed the vessel was the Blue Baron, and that
was subsequent to that. I can’t recall the actual
date, I’m afraid.
Q. And do you recall the date of the British
Telegraph article?
A. 2008, 2009.
Q. And how soon after you determined that — that the
Port Nicholson was involved did you have — did
you retain counsel to — to file papers in the
District of Maine lawsuit?
A. I can’t recall the exact date, but I know it was
fairly soon afterwards that we consulted with our
in-house legal team and then consulted with our US
attorneys.
Q. Other than the Port Nicholson, what other vessels
sunk during World War II have you assumed
responsibility for?
A. The department is responsible for all of the
vessels sunk by enemy action during World War I
and II. It’s a total of around 4,000.
Q. Let me try to rephrase that question.
How many other vessels sunk during World War
II have — have you instructed counsel to — to go
to court on salvage issues?
MR. SHUSTA: Object to the form of the
question.
Q. You can answer if you understand the question. If
not, I’ll rephrase it.
A. Could you rephrase it, please?
MR. SHUSTA: And maybe to clarify, Marshall,
you’re talking about US cases? Because the way
these vessels would be treated in the UK is much
different than the way that it would be treated in
the United States. So if you’re talking about how
many times has he instructed counsel for salvage
cases in the US, that might make it a lot easier.
MR. TINKLE: Okay. Thank you, Tim. I’ll ask
that question.
Q. How many cases involving — let me start over.
How many cases brought in the United States
involving British ships sunk during World War II
have you been involved with?
A. None.
Q. Except the Port Nicholson?
A. Except for the Port Nicholson.
Q. How many cases in the UK involving vessels sunk
during World War II have you been involved with?
A. I’m sorry. Do you mean legal cases?
Q. Yes.
A. None.
Q. So is it fair to say that the Port Nicholson is
the — the first vessel in which you have asserted
an ownership interest on behalf of your department
in court?
A. Yes.
MR. SHUSTA: You’re confining that to World
War II vessels?
Q. Well, I’ll ask it in a broader way. Any sunken
vessels.
A. That have involved legal action or court action
you mean?
Q. Yes.
A. None.
Q. When a vessel was placed in government service
during World War II, what paperwork would be
generated?
A. I’m sorry. I can’t really answer that. All I can
do is perhaps illustrate that ships entered with
the war risk insurance clubs would have been
subject to the normal requirements, regulations,
that were applicable at that time.
Q. But you don’t know what those applicable
regulations would be?
A. That would be under the relevant War Risk
Insurance Act and the commercial practices of the
P & I clubs that would have been in use at that
time.
Q. Is it your contention that the Port Nicholson was
placed in government service before it sank?
A. Yes, it was.
Q. And what do you base that on?
A. On the fact that we have evidence to show that it
was entered with the — under the Liner
Requisition Scheme and a was on government service
until it was sunk.
Q. What is the document that indicates that it was
entered in the Liner Requisition Scheme?
A. That would be the Admiralty List that I referred
to earlier.
Q. But I thought the Admiralty List listed all
British-registered vessels that sank.
A. Yes.
Q. So are you saying that all British-registered
vessels have been entered into government service?
A. I can’t say all; but as far as I understand, by
far the majority were. There were very few
exceptions.
Q. Okay. So your understanding is that the majority
of vessels were — were registered — were in
government service but not all of them; is that
correct?
A. Yes.
Q. On what do you base your understanding that the
majority of British vessels were in government
service?
A. Because during wartime shipping operated under
government control. For the ships to operate,
they required war risk insurance.
Q. Was that a statute that said that all vessels had
to have war risk insurance?
A. There is the War Risk Insurance Act of 1939.
Q. But that act doesn’t say that all vessels have to
have war risk insurance, does it?
A. No.
Q. And, in fact, what the act says is that it gives
the Board of Trade permission to reinsure vessels.
Isn’t that correct?
A. That’s correct, yes.
Q. And it leaves that decision up to the Board of
Trade, doesn’t it?
A. I think it’s a little more complicated than that
because there would have been requirements by the
government of the day to maintain commercial links
as well as obviously wartime operations also
required shipping. And as such at that time ships
owners and operators would have been required to
take war risk insurance.
Q. What document says that — that they were required
to take war risk insurance?
A. I don’t believe there is a specific document.
Q. Could you turn to Exhibit 71? I’ll represent that
this is a document that your counsel produced. It
starts with the numbers UK DfT-00068. Can you
identify that document?
A. Yes.
Q. What is it?
A. That’s the Service List I referred to previously
as the Admiralty List of the vessels that were
entered into government service at any time since
the 3rd of September, 1939.
Q. And from what file did you obtain this Service
List?
A. It’s a document that we’ve had presumably from
the — the end of the war.
Q. When did you first view this document?
A. When I took on the responsibility for
administration of the war acts.
Q. 20 years ago?
A. Yes, that’s correct.
Q. And is it fair to say that you presumed that the
department had this — this document for many
years before that, but you don’t really know?
A. Yes, that’s right.
Q. And this is a list of merchant ships in general
service at any time since 3 September, 1939; is
that correct?
A. Yes.
Q. So that would include vessels that at some point
had been in government service and subsequently
were not in government service. Is that fair to
say?
A. It includes all of those vessels, yes.
Q. And you don’t know how this document was compiled,
do you?
A. No.
Q. I think you mentioned the Liner Requisition
Scheme. What was that?
A. That was the means by which certain ships were
requisitioned by the British government during
wartime.
Q. Do you know what was the date of the commencement
of the Liner Requisition Scheme?
A. Not without looking at the — not without looking
at the scheme itself.
Q. Just please try to keep your voice up for the
court reporter.
Other than Exhibit 71, are there any other
documents that you rely on for the notion that the
Port Nicholson was requisitioned?
A. No, I don’t believe so.
Q. Please turn to Exhibit 65. Is this a complete
copy of the Liner Requisition Scheme?
A. Yes.
Q. And where did you obtain this document?
A. We obtained that document from the National
Archives in the UK.
Q. And where is the National Archives?
A. They’re located in Kew in London.
Q. And did you personally go to the National Archives
to retrieve this document?
A. Yes, I did.
Q. And when did you do that?
A. I believe that would have been 2012 or 2013,
probably 2012.
Q. And is this your only copy of the document? I ask
that because it’s — it’s not very clear. Do you
have any clearer copy?
MR. KAPLAN: Well, I think he is looking at
something that we sent to you and you sent to him.
So what I’m saying is what he is looking at may
not even be what you’re looking at exactly.
Q. Well, let me ask you this. Do you have more than
one copy of the Liner Requisition Scheme?
A. I’m sorry. I’m afraid we seem to have developed a
technical fault.
Q. Can you hear me now?
A. I — I can hear you; but we seem to have lost the
picture.
MR. SHUSTA: Well, we can still see you.
Hang on a second.
MS. BOONE: Excuse me. Okay. Got you back.
Is it possible to take a break, please?
Q. My last question was do you —
A. Excuse me. Would it be possible to take a short
break?
MR. SHUSTA: Yes.
Q. Yes.
MS. BOONE: Thank you.
(A short recess was taken.)
BY MR. TINKLE:
Q. Mr. Cousins, did you make more than one copy of
this document that’s called Liner Requisition
Scheme, Exhibit 65?
A. No. I believe that’s the only — we only made one
copy.
Q. And how did you make the copy? Was it
photocopied? Did you take an actual photograph?
A. It was a photograph of the original which was
transferred onto an electronic system.
Q. And this document starts out by having a heading
with the Ministry of Shipping on it, and then it
says “Gentlemen.” But it appears to be a form of
a document that was to be sent to the different
ship owners. Is that fair to say?
A. Owners or operators, yes, that’s right.
Q. Have you seen any of the actual letters to owners
and operators?
A. I saw the original that is in the National
Archives, yes.
Q. You saw the original of a form letter. It’s not
addressed to anybody in particular; is that
correct?
A. Oh, sorry, no. I misunderstood your question. I
didn’t see a — you mean a blank copy?
Q. Right. This is essentially a blank form that was
to be used to send out to certain owners and
operators. Is that correct?
A. I believe it was a standard item, yes.
Q. And do you know who owned the Port Nicholson?
A. It was owned by the Port Line.
Q. Does the Port Line still exist?
A. No, it doesn’t.
Q. Do you know when it ceased to exist?
A. I believe it was sometime in the 1950’s or 1970’s.
I can’t be specific, I’m afraid.
Q. So you don’t have a letter in the form of Exhibit
65 addressed to the Port Line, do you?
A. I don’t recall if we have a specific document
related to that, no.
Q. If you had such a document, you would have turned
it over, wouldn’t you?
A. I believe so.
Q. On Page 2 of Exhibit 65, you don’t have to read it
out loud, but can you take a look at Paragraph 6
in the middle of the page?
A. Yes.
Q. Isn’t this paragraph basically saying that the
ship owner can carry on its normal business with
its ships except to the extent that the ministry
may require otherwise?
A. That’s what it says, yes.
Q. And toward the bottom of the page you see
Paragraph 8?
A. Yes.
Q. This asks for assurances of cooperation from the
company; is that correct?
A. Yes.
Q. Have you ever seen any written assurance from the
Port Line?
A. No.
Q. At the very bottom of the page you see Paragraph
9?
A. Yes.
Q. And that’s asking the owner to afford a schedule
of the ships affected?
A. Yes.
Q. Have you seen a schedule of ships from the Port
Line?
A. No.
Q. Have you ever seen a charter party for the Port
Nicholson between your government and the Port
Line?
A. No.
Q. Can you please look at the Exhibit 66, a document
that begins with UK No. 00023. It’s labeled
Charter Party. Do you see that?
A. Yes.
Q. And what do you understand this document to be?
A. This is the standard charter party for — between
government and the ship owners.
Q. And there were a couple of different forms of
this, weren’t there? Because if you look at
Exhibit 67, this is another standard charter
party, correct?
A. Yes.
Q. Where did you obtain this form of charter party?
A. They were obtained from the National Archives in
Kew.
Q. And you specifically recall getting this document
from the National Archives?
A. Yes.
Q. Do you recall when?
A. It would have been at the same time we
recovered — recovered the other documents. I
don’t recall the specific date, no.
Q. Do you have a certificate of authentication for
this document?
A. No.
Q. So this No. 66 is a form of charter party used by
the Ministry of Shipping during World War II?
A. Yes.
Q. Were you able to find a copy of this form of
agreement that specifically identifies the Port
Nicholson as a chartered vessel?
A. No.
Q. Could you please identify Exhibit 69 — I’m
sorry — 67?
A. It’s another form of charter party.
Q. What do you understand the difference to be
between the two forms of charter parties, Exhibit
66 and 67?
A. As I understand, it applied to different types of
vessel.
Q. Do you know which of these would have applied to a
vessel such as the Port Nicholson?
A. Not specifically, no.
Q. Could you find a copy of the form of agreement
that’s Exhibit 67 that specifically identifies the
Port Nicholson as a chartered vessel?
A. No.
Q. Under the charter parties and the Liner
Requisition Scheme, did the government pay for
the — pay the owner for the use of a vessel?
A. I’m not personally aware of how the payments were
made. I understand there was a system in place at
the time whereby the government repaid the ship
owners for their vessels when they were
requisitioned for government use.
Q. Have you seen any records at all showing payment
for the use of the Port Nicholson?
A. No.
Q. Did you look for such documents?
A. Yes.
Q. But you couldn’t find any?
A. No.
Q. Can you turn back to Exhibit 65, the Liner
Requisition Scheme document?
A. Yes.
Q. Looking at Paragraph 2, that paragraph lists
effective dates for requisition; does it not?
A. Yes.
Q. And could you turn now to Exhibit 71, the Service
List that we talked about?
A. Yes.
Q. It appears that it’s the last page of that
document that lists the Port Nicholson; is that
correct?
A. Yes, that’s right.
Q. And what does it say for the — the date of
service for the Port Nicholson, the date of
requisition?
A. That would be under column heading 8.
Q. And what’s the date?
A. It looks like 30 of the 3rd, 1940.
Q. Is that the 30th of March?
A. Yes, it would seem to be.
Q. And then going back to Paragraph 2 in Exhibit 65,
that’s not a date that is listed here for dates of
requisition, is it?
A. No. The 30th of March is not listed there.
Q. So would you agree that either Exhibit 65 doesn’t
apply to the Port Nicholson or Exhibit 71 is
inaccurate?
MR. SHUSTA: Object to the form of the
question. I think the documents speak for
themselves.
Q. You can answer.
A. No. I couldn’t agree with that, I’m afraid.
MR. SHUSTA: And —
Q. Well, this exhibit —
MR. SHUSTA: And I think you’re being
misleading, Mr. Tinkle, because the document says
ships will be — it applies to ships after 31
January, 1940. That’s all. There are no dates
listed in that document for requisition of
specific ships.
Q. What’s your understanding of what Paragraph 2
says?
A. I believe it says that they will take into effect
from a specific date. It doesn’t list a specific
date for each ship being requisitioned.
Q. So how would an owner know when his ship was
requisitioned?
A. I don’t know.
Q. Now, this document, Exhibit 65, doesn’t purport to
take title to any privately owned vessel, does it?
A. No.
Q. So other than these two documents, Exhibit 65 and
71, do you have any other documents that you rely
on for the proposition that the Port Nicholson was
in government service when it sank?
A. There are records of the Port & Dominion Line
which would show that payments were made for the
loss of the hull of the Port Nicholson.
Q. So you said the records of the what and Dominion
Line?
A. Port Line.
Q. So have you seen any records of Port Line that say
that the Port Nicholson was in government service
when it sank?
A. No.
Q. Could you please turn your attention to Exhibit
68? It begins with UK DfT document No. 00031.
It’s headed Liner Requisition Scheme Heads of
Arrangement. Would you agree that this document
is a draft?
A. No. Whether it says Drafts Heads of Arrangement,
I cannot confirm whether it is a draft or not.
Q. Okay. What’s your understanding of what heads of
arrangement means?
A. It’s not a term I’m familiar with.
Q. Has anybody ever told you that that refers to a
nonbinding document?
A. No.
Q. Do you have an understanding of whether this
Exhibit 68 was superseded by No. 65?
A. No. Document 65 is dated later than Document 68.
Q. Right. So I’m asking you if Document 65, Exhibit
65, supersedes Exhibit 68, if you know?
A. I — I don’t know.
Q. In Clause 1 of Exhibit 68, the top of the first
page, there is a blank where the — where the
owner’s name would be; is that correct?
A. It appears to be, yes.
Q. Have you ever found a document in the form of
Exhibit 68 for the Port Nicholson?
A. No.
Q. Or for the Port Line in general?
A. No.
Q. When a vessel was requisitioned under the Liner
Requisition Scheme, is it your understanding that
a charter party would be entered into?
A. I believe that would have been the case, yes.
Q. And you haven’t found a charter party for the Port
Nicholson, have you?
A. No.
Q. And I take it you looked for one.
A. We looked for any documents that might be relevant
to this case, yes.
Q. And you weren’t able to locate records of any
payments to Port Line for the use of the Port
Nicholson?
A. No.
Q. For any year; is that right?
A. Yes.
Q. What other research did you personally undertake
to determine whether the Department for Transport
owned the Port Nicholson and her cargo?
A. I looked at records at the National Archives in
Kew. We also looked at our own files.
Q. Any other sources of information?
A. Only negatives.
MR. KAPLAN: When you ask — can you clarify
what you meant by him or by the department because
your earlier question was him personally.
Q. Okay. I’m starting out with just personally.
What other sources of information did you
personally go to in researching this issue? You
said the National Archives and —
A. National Archives, the Bank of England.
Q. And then your own files?
A. And in our own files, yes.
Q. Any other places that you looked?
A. Personally?
Q. You personally.
A. No.
Q. In the National Archives you indicated that both
the — in the document that’s marked Exhibit 65
and in the — I’m guessing Exhibit 66 and 67 came
from the National Archives; is that correct?
A. Yes, that’s correct. Those documents came from
the National Archives.
Q. What other documents did you find relevant to this
issue in the National Archives?
A. I think everything that we found has been
presented.
Q. I understand that, but I’m just asking to break
down that information from documents that came
from the National Archives and documents that may
have come from some other source. So are there
any other documents that came from the National
Archives that you made copies of?
A. I’m sorry. I can’t recall specifically which
items came from the National Archives without
checking through all of the papers.
Q. Well, can you check at least the exhibits and let
me know what other exhibits came from the National
Archives?
A. Exhibit 80 and I believe you already referred to
Exhibits 65, 68 and 67.
Q. Yes.
A. They all came from the National Archives.
Q. When did you go to the Bank of England?
A. I can’t recall the specific dates. I believe it
was last year.
Q. Did anybody else look for documents on your
behalf?
A. Yes.
Q. And who was that?
A. That would be Ms. Caroline Boone.
Q. Caroline — what was the last name?
MR. SHUSTA: Boone.
A. Boone.
Q. Oh, who is sitting next to you?
A. Yes.
Q. And what’s your understanding of what documents
she found?
A. Documents from the House of Commons Library.
Q. Any other sources of information?
A. No. I did check with various other — other
bodies such as the Salvage Association. I also
checked with the HSBC archives, but they had no
information on the Port Nicholson.
Q. Were any documents relating to the Port Nicholson
found in the House of Commons Library?
A. Nothing specifically relating to the Port
Nicholson, no.
Q. Other than Ms. Boone, did anybody else try to
locate documents concerning the Port Nicholson on
your behalf?
A. No. Oh, I’m sorry. Did you mean anywhere?
Q. Yes.
A. In that case, yes, there was a researcher
appointed by our attorney; and that would be Mr.
Constandi.
Q. Could you spell his name?
A. No. I’m sorry.
MR. SHUSTA: C O N S T A N D I.
Q. Do you know his first name?
A. I don’t recall.
MR. SHUSTA: Michael.
Q. Do you know what archives or other sources of
information he looked at?
A. I understand he looked in the US Archives.
Q. Anywhere else?
A. I don’t recall.
Q. Did you yourself ever receive any training in
archival research?
A. No.
Q. Have you done any archival research on other ships
besides the Port Nicholson?
A. Yes, I have.
Q. What ships?
A. Various vessels.
Q. For what purpose?
A. For research, for determination of salvage
agreements.
Q. Do you mean that you researched whether there were
salvage agreements in place for a particular
vessel?
A. No. Referring to DfT-owned vessels where we had
requests to undertake salvage, in which case we
research the history of the vessel, whether it was
owned by DfT, and what the cargo is, its location,
any of the background history that may be relevant
to issuing a salvage agreement.
Q. Can you identify any of the other vessels that you
have researched?
A. It’s been research of numerous vessels.
Q. Can you name one?
A. The SS Alpharat.
Q. And what was the SS Alpharat?
A. It was a British-registered merchant vessel that
was sunk during World War II.
Q. And was there somebody that was looking to do
salvage work on the Alpharat?
A. Yes, that’s correct.
Q. And who was that?
A. A company that no longer exists.
Q. And how long ago did you do the research on the
Alpharat?
A. That would probably have been around ’95 — 1995.
Q. And there wasn’t any litigation involving the
Alpharat, was there?
A. No.
Q. Can you name any other vessels that you
researched?
A. I’m sorry. The list is extensive. I’ve research
a lot of vessels over the last 20 years.
MR. SHUSTA: And also, I would like to know
what the purpose of this line of questioning is.
The subject of this discovery period is ownership
of the Port Nicholson. So what does research on
other — I mean, you can ask him has he ever done
this before. But trying to get him to list a long
list of other vessels I don’t understand.
MR. TINKLE: Well, he has been identified as
an expert; and I’m just trying to —
MR. SHUSTA: No. He has not been identified
as an expert.
MR. TINKLE: Well, you’ve listed him in your
expert designation, I believe.
MR. SHUSTA: I don’t think so.
MR. TINKLE: I’ll check.
Q. Okay. Just briefly, as you sit here today, what
are the other vessels that you researched?
A. Again, I’ve researched many, many vessels over the
last few years.
Q. Besides looking at documents for the Port
Nicholson, did you do anything else as part of
your investigation?
A. I believe I’ve already said that I approached
other bodies, such as The Bank of England and the
National Archives. In addition, I spoke with the
Admiralty Library and checked their archives.
Q. Did the Admiralty Library have any documents that
were relevant to the Port Nicholson?
A. They have ledgers that we located several years
ago which related to all cargo claims made during
World War II, and the Port Nicholson was mentioned
there.
Q. In what connection was the Port Nicholson
mentioned?
A. In listing the claims made under the War Risk
Insurance Act for the loss of items that were on
the Port Nicholson at the time it was sunk,
including personal effects of crew.
Q. Did you talk with anybody else about the Port
Nicholson?
A. I discussed it obviously with counsel and with
management and with anyone connected with the
research who I tried to obtain information from.
Q. You weren’t able to find anybody who was still
alive that had any knowledge of the Port
Nicholson, were you?
A. No.
Q. Were there any other steps to your investigation
besides what we’ve talked about?
A. I can’t recall any.
Q. Has your investigation been completed, or is it
ongoing?
A. It’s ongoing.
Q. What other information are you seeking at this
point?
A. At the moment we’re not actively seeking any
information.
Q. Have you prepared any reports or memoranda
summarizing your investigation?
A. Yes, I have.
Q. And to whom was that presented?
A. It was the Secretary of State for Transport.
Q. And does your department still have a copy of
that?
A. I believe so.
Q. What did you conclude in that report?
A. That a claim had been made that the Port Nicholson
was carrying a valuable cargo, whereas our records
show that it was carrying automobile parts and war
stores.
Q. Will you produce a copy of that memorandum?
A. I will have to check with my counsel for that.
Q. Getting back to the —
MR. SHUSTA: Before you go on, I just want to
note that the report Mr. Cousins has just referred
to I believe would either be internal work product
or attorney-client privilege; and we would look at
it before we would produce it, as he said.
MR. TINKLE: Okay. Well, we can discuss that
later.
Q. Getting back to the War Risk Insurance Act, did
the Board of Trade, to your knowledge, issue any
rules or regulations under act?
A. I’m not aware of any.
Q. Are you aware of any rules and regulations under
the act by any other governmental body?
A. There were agreements subsequent to the act with
individual P & I clubs which related to the
provisions of the act.
Q. Are there any interpretive memoranda or guidelines
prepared by any government body that you’re aware
of concerning the War Risk Insurance Act?
A. I’m not aware of any.
Q. Could you please turn to Exhibit 69?
A. Yes.
Q. Do you recognize that document?
A. Yes.
Q. Could you please identify it?
A. Under the War Risk Insurance Act of 1939, it’s an
agreement between the Liverpool and London War
Risks Insurance Association Ltd., and the Minister
of Shipping on behalf of His Majesty.
Q. What was the Liverpool and London War Risks
Association Ltd.?
A. It was one of a number of protection indemnity
societies that reinsure shipping.
Q. Does it still exist?
A. No.
Q. Do you know when it ceased operations?
A. I believe it was 2000 or thereabouts.
Q. And as you say, this was just one of several
insurers that provided war risk insurance; is that
correct?
A. Yes.
Q. And there were at least eight others operating in
the UK, weren’t there?
A. I believe that’s probably about right, yes.
Q. Were you able to find agreements with any of the
other war risk insurers?
A. We weren’t looking for any others.
Q. Why were you looking in particular with — for an
agreement with Liverpool and London?
A. Because the Port Nicholson was entered with the
Liverpool and London club.
Q. And what proof do you have that Port Nicholson was
insured by Liverpool and London?
A. We have references to it.
Q. In which document?
A. I can’t recall.
Q. Did you find any actual insurance policy for the
Port Nicholson in effect in 1942?
A. No.
Q. You may have already answered this; but there
wasn’t any statute requiring that private vessels
carry war risk insurance in 1942, was there?
A. I don’t believe so.
Q. Let’s go back to Exhibit 64. Are you able to
identify this document?
A. It’s a press clipping from the Times from the 5th
of January, 1940.
Q. And who located this press clipping?
A. I believe it was a member of our legal team.
Q. And do you know which one?
A. It’s not listed there.
Q. Do you know where this document was found?
A. I believe it was in some of our general papers on
war risk insurance during World War II.
Q. The third paragraph of the article refers to
requisitioning cargoes of cereal. Do you see
that?
A. Yes.
Q. And also oil seeds?
A. Yes.
Q. And sugar?
A. Yes.
Q. And then it says iron ore?
A. Yes.
Q. And then it says certain other metal cargoes. Do
you know which metals?
A. From knowledge of cargoes that were carried at the
time, it could have been anything from copper,
lead, tin, or any other metal that would have been
used in production during wartime.
Q. The Port Nicholson wasn’t carrying cereal, was it,
in — at the time of the sinking?
A. No, it wasn’t.
Q. And it wasn’t carrying oil seeds or sugar or iron
ore, was it?
A. No.
Q. Do you think it was carrying other metals?
A. Our records show that the Port Nicholson was
carrying automobile parts and war stores. It
doesn’t specify what those war stores were.
Q. Do you have any documents indicating that such
cargoes were in fact requisitioned?
MR. SHUSTA: I’m going to object to the form
of the question because it misstates what the
document says. What this document is talking
about is requisitioning ships to carry cargo, I
believe. They’re not requisitioning cargoes.
They’re requisitioning vessels for full cargo
loads of various commodities.
Q. Do you believe that when the Port Nicholson sank,
it was carrying any of the items listed in the
third paragraph of this article, in Exhibit 64?
A. As I said, our records indicate that the Port
Nicholson was carrying automobile parts and war
stores.
Q. But that’s not included in any of the items
listed, is it?
A. No.
Q. Going back to Exhibit 69, when did you obtain this
document?
A. I’m sorry. Could you repeat the question?
Q. Where did you obtain a copy of Exhibit 69?
A. That was obtained from the House of Commons
Library.
Q. So was that a document obtained by Ms. Boone?
A. Yes, it was.
Q. Is there any certificate of authentication
accompanying this document?
A. No.
Q. And you believe this document is relevant because
you believe that there is a — there was an
insurance policy in effect between
A Liverpool and London and the Port Lines on the
Port Nicholson?
MR. SHUSTA: Object to the form of the
question.
A. Yes.
Q. But you’ve never seen such a policy; is that
correct?
A. That’s correct.
Q. So what is the basis for your belief that there
was such a policy?
A. We believe that all of the Port Line ships were
reinsured via the Liverpool and London P & I Club.
Q. And what’s the basis for that belief?
A. I can’t recall.
Q. You produced this document, Exhibit 69, which
starts with UK DfT No. 00037 in response to Sea
Hunters’ request for documents between the Port
Line and the United Kingdom; is that correct?
A. I believe so.
Q. Is Exhibit 69 a document between the Government of
the UK and the Port Line?
A. No. It’s between the Liverpool and London P & I
Club and the Minister of Shipping.
Q. And how does this document relate to the claim of
title or ownership to the Port Nicholson?
A. As I said, we believe that the ships of the Port
Line were reinsured by the Liverpool and London
P & I Club.
Q. Exhibit 69 refers to — on Page 00038, the second
page, to a “Minister of Shipping (Transfer of
Functions) Order 1939.” Do you see that?
A. Yes.
Q. Are you familiar with that order?
A. No.
Q. And do you have a copy of that order?
A. I don’t know.
Q. Do you know who issued that order?
A. No.
Q. Would you agree that Exhibit 69 does not mention
the Port Nicholson?
A. No, it does not mention the Port Nicholson.
Q. And it doesn’t even mention Port Line, does it?
A. No.
Q. Could you look at Exhibit 70? This is titled
Ministry of Shipping Memorandum on Wartime
Financial Arrangements Between His Majesty’s
Government and British Shipowners.
A. Yes.
Q. Have you reviewed this document?
A. I’ve looked at it, yes.
Q. Where was this document obtained?
A. This was also obtained from the House of Commons
Library.
Q. And have you seen or have you obtained a
certificate of authentication —
A. No.
Q. — for this document?
A. No.
Q. Do you know anything about the chain of custody of
this document?
A. I’m sorry. I’m not familiar with the term.
Q. Do you know where this document was before it got
put into the House of Commons Library?
A. It was a document that would have been issued by
the Government; and, therefore, a copy would be
held in the House of Commons Library from the day
of the publication.
Q. Do you know who prepared this document?
A. No.
Q. Do you know what the Commonwealth & Dominion Line
Limited is?
A. It was a shipping line.
Q. Look at Exhibit 72, please. Do you recognize this
document?
A. Yes.
Q. And could you identify it?
A. It’s a copy of the Commonwealth & Dominion Line
Minute Book.
Q. Is it the whole minute book or just selected
pages?
A. I believe it’s an extract.
Q. Who obtained these pages?
A. I believe these were obtained from the University
of Liverpool Library, and we requested them from
the librarian.
Q. Do you know how this document found its way to the
University of Liverpool Library?
A. I understand that the Port Line was taken up by a
larger shipping company, Cunard; and all their
records were donated to the Liverpool University
Library.
Q. And what’s the basis of that understanding?
A. What I was told by the archivist at the library
and from research online.
Q. And who was the archivist? Do you remember the
name?
A. No, I’m afraid not.
Q. When did you speak with the archivist?
A. Sometime in 2012, I believe. It may have been
later.
Q. And do you know when these documents were donated
to the University of Liverpool Library?
A. No.
Q. What’s the relationship of Commonwealth & Dominion
Line Limited to the Port Line?
A. I believe they had various names.
Q. So your understanding is that this was another
name for Port Line?
A. I believe so.
Q. Was there an official name change?
A. I don’t know.
Q. So is it your belief that any of these documents
that are part of Exhibit 72 are actually referring
to the Port Line?
A. Yes, they do.
Q. And do you have any documents that — that show
that, that Commonwealth & Dominion Line Limited
and Port Line are one and the same?
A. We have a book on the history of the Port Line.
Q. And who wrote that book?
A. I believe it was a former employee of the Port
Line and an enthusiast who put together a history
of the Port Line.
Q. And where did you get that book?
A. Amazon, I think.
Q. Are you aware that there has been more than one
vessel that’s been called the Port Nicholson?
A. I believe I have heard that, yes.
Q. What’s your understanding of what — what the
minute book shows that’s relevant to Port
Nicholson?
A. On the front page — after the Minute Book title
on the first page, there is a reference to the
Nicholson. Thereafter on Page 00077 there is
reference to a receipt of the foreign credit
certificates being the increased values linked to
the credit of the company under the government
tonnage replacement scheme, referring to the Port
Montreal and to the Port Nicholson. On the
following page, 00078, there is a further
reference to the receipt reported of the first
installments of war risk insurance of the
following vessels, the Port Montreal, the Port
Nicholson and the Port Hunter.
MR. HOLBROOK: What exhibit is that?
MR. TINKLE: This is 72.
A. And on Page 00079, it is reported that the second
installment of war risk insurance for SS Port
Nicholson had been received. And on Page 000880
reference to the receipt was reported in the third
and final installments of war risk insurances on
the account of Port Montreal and Port Nicholson.
Q. Who actually made copies of these pages?
A. Copies were made by the archivist at the
University of Liverpool.
Q. And who instructed the archivist to make the
copies?
A. I did.
Q. And specifically, what were your instructions?
A. To copy any documents relevant to the Port
Nicholson that were contained in the minute book.
Q. And then these copies were sent to you?
A. Yes.
Q. In what format?
A. Both paper and electronically, and I have a copy
of the letter of certification.
Q. Will you produce that?
MR. SHUSTA: Yes, we will.
Q. Did you receive just one copy of the — of these
pages, although in two separate formats?
A. Yes.
Q. The reason I ask that is that a number of these
pages, you know, starting with 00073, are largely
illegible. But you don’t have cleaner copies; is
that correct?
A. The copies I have are quite legible.
Q. On Page 00073 in what connection is the Port
Nicholson mentioned?
A. I’m sorry. That’s the front page, the — the
first page?
Q. Yes.
A. The Nicholson is mentioned along with a whole list
of other vessels.
Q. Do you know what it says after Nicholson on that
line?
A. There are various numbers.
Q. And do you know what those numbers signify?
A. No.
Q. Turning to Page 00077, do you have any information
on who prepared this page?
A. I’m sorry. Do you mean in the original format?
Q. Yes. Who wrote this information, or who typed
this information?
A. That would be whoever took the minutes of the Port
Line meeting.
Q. And do you have any information on how long after
the meeting this was prepared?
A. I don’t know.
Q. The one sentence referring to the Port Nicholson
says that, “Receipt was reported on the following
credit certificates being the, ‘Increased values’
placed to the credit of the company under the
Government Tonnage Replacement Scheme.” And then
it lists SS Port Nicholson $41,000. Is that
correct?
A. No. It’s 41,000 pounds.
Q. I’m sorry, pounds. Do you know what the
Government Tonnage Replacement scheme was?
A. I believe it was a scheme under which the
Government undertook to repay the ship owners for
vessels lost during the war, but I’m not familiar
with the specifics of the scheme.
Q. Is it your understanding that to the extent there
was an increase in value of the vessel after the
war broke out, that the owner was given a credit
for that increase?
A. I understand that there were certain difficulties
in building or replacing ships lost during
wartime, so that part of the scheme was so that
companies were able to replace their losses after
the war. But as I say, I’m not that familiar with
the scheme.
Q. Okay. But is it your understanding that this
refers to a credit not a payment?
A. I can only repeat what it says in the minute book.
Q. Are you aware that if an owner doesn’t replace the
vessel, then the owner never gets payment?
A. As I said, I’m not familiar with the scheme.
Q. So you don’t know how the increase in value was
determined?
A. No.
Q. And you don’t know how the 41,000 pounds was
arrived at, do you?
A. How many of the payments made, the payments for
the loss of the Port Line under the terms of the
agreements and the War Risk Insurance Act relevant
at the time.
Q. And this document doesn’t say who provided the
credit certificate, does it?
A. It says underneath, “It was reported that the
Ministry of War Transport and the Marine
Underwriters had agreed to share equally in the
payments to the company,” which relates to the
Port Napier. It may well be that the same is true
of the Port Nicholson or any other ship under the
Port Line that was replaced under the government
scheme.
Q. But that would be speculative, wouldn’t it?
A. It would, indeed.
Q. Do you know what date the war started for purposes
of the government tonnage replacement scheme?
A. I’m sorry. Do you mean what — what date the war
started?
Q. Yes.
A. I believe it was June 1939; but I’m not really —
sorry. I’m not — not familiar with the actual
date.
Q. Do you have any information about the value of the
Port Nicholson on that date, June 1939?
A. No.
Q. Do you have any information at all about the value
of the Port Nicholson just before it was
torpedoed?
A. No.
Q. Did you ever see any notice of claim filed on
behalf of the Port Nicholson?
A. No.
Q. Or have you seen any other document relating to
the Port Nicholson itemizing the amount of the
loss and requesting reimbursement?
A. No.
Q. Have you seen any appraisal for the Port
Nicholson?
A. No.
Q. Have you seen any document itemizing the loss of
cargo on the Port Nicholson and requesting
insurance payment for that?
A. Only for the items that were reinsured by the —
that were insured by the War Risk Insurance
Office.
Q. And for those have you seen a document requesting
insurance payments?
A. No.
Q. We’ll just go a couple more minutes and then
continue tomorrow.
Let me just show you where — if you can
find — strike that. If you turn the page to Page
78 — 00078, is it fair to say again that you
don’t know who prepared this document?
A. That’s correct.
Q. Or when it was prepared?
A. Yes.
Q. And according to this document, 56,333 pounds of
war risk insurance was received. Is that correct?
A. Yes, that’s correct.
Q. And this document doesn’t say from whom that
payment was received, does it?
A. For that specific item, no.
Q. And it doesn’t say when it was received.
A. No.
Q. And turning to the — the next page, 79, you
indicated that referred to a second installment.
And again, you don’t know who or when this was —
by whom or when this document was prepared,
correct?
A. Correct.
Q. And there is a handwritten notation on the top
that says “April 1943.”
A. Yes.
Q. Do you know who prepared that or who wrote that
in?
A. No.
Q. And would you agree that this document doesn’t say
from whom the payment was received?
A. And it doesn’t specifically mention for each
payment where it was received from.
Q. And it doesn’t even generally mention from whom it
was received, does it?
A. There are numerous references to the Ministry of
war transport making payments.
Q. But not with reference to the Port Nicholson?
A. With reference to the Port Nicholson.
Q. I’m sorry. Say that again?
A. There doesn’t appear to be any specific reference
to the Port Nicholson.
Q. And the next page, Page 80, same questions. You
do not know who prepared this document; is that
correct?
A. That’s correct.
Q. And you don’t know when it was prepared?
A. No.
Q. And you can’t tell from this document from whom
this payment to — on behalf of the Port Nicholson
was — was received?
A. No.
Q. On Page 81 is — is there any mention of Port
Nicholson on — on this page?
A. No. Nor is there any mention of other Port Line
ships.
Q. What do you understand to be the relevance of this
page?
A. I know that it was part of the original Minute
Book.
MS. BOONE: Gentlemen, it’s gone 6 o’clock.
Are we going to go on for much longer?
MR. TINKLE: I was just going to finish going
through this one document, but we can stop right
now. I understand that it’s getting late where
you are.
MS. BOONE: Yes, please, I think.
MR. HOLBROOK: What time are we resuming?
MR. TINKLE: We’ll resume at 8:30 our time,
which will be 1:30 your time.
THE DEPONENT: That’s right, yes.
MR. TINKLE: Well, good. Thank you. I
appreciate your time today. Look forward to
seeing you tomorrow.
(The deposition was recessed at 1:02 P.M.
EST, on January 23, 2014, and resumed at
8:30 A.M. EST on January 24, 2014.)
– – – – – –
BY MR. TINKLE:
Q. Good morning, Mr. Cousins. We’re continuing the
deposition from yesterday. It’s now 8:30 on
Friday, the 24th of January, 2014. You understand
that you’re still under oath?
A. Yes.
Q. And before I take up where I left off, I note that
I was just handed a document by your Portland,
Maine counsel titled Privilege Log. I don’t think
I need to mark this document, but I just want to
ask you, this refers to an undated memo of Rob
Cousins to Mike Penning. Could you tell me who
Mike Penning is?
A. He was the Minister of State for Transport at that
time.
Q. Okay. So he was — he was the person in charge of
your whole department; is that correct?
A. He was one of the ministers under the Secretary of
the State of Transport.
Q. Okay. I see. He wasn’t counsel to the
department, was he?
A. No.
Q. And is he an attorney?
A. I don’t believe so, but I can’t say for sure.
Q. Did this memorandum concern anything about the
Port Nicholson other than litigation options?
A. Only what’s contained in the minute.
Q. What do you mean what’s contained in the minute?
A. I’m sorry. I don’t understand the question.
Q. What was discussed in this memorandum from you to
Mike Penning?
MR. SHUSTA: Well, I’m going to object to the
question. We had filed a privilege log regarding
the contents of the memo, so we’re not going to
have the witness testify as to the contents of the
memo. If you — if you think — if you believe
it’s not privileged, then there are procedures for
you to seek from the Court review by the Court,
but you don’t file a privilege log and then ask
the witness to describe what was in the memo.
We’re saying that it’s a privileged internal
communication regarding this litigation.
MR. TINKLE: And my question is I just want
to find out whether this was about litigation or
if it was about other things.
MR. SHUSTA: Well, we’ve said it was about —
I think it says Options for US Litigation
Concerning the Port Nicholson. I think that tells
you all you need to know.
Q. Okay. Let me ask you this. Have you written
other memoranda besides this memoranda —
memorandum to Mike Penning concerning options for
US litigation?
A. No.
Q. I think you referred yesterday to a memorandum you
had written concerning your conclusions about
ownership. Did I misunderstand that?
A. That’s the memo.
Q. Okay. I’m going to get back to Exhibit 72. Do
you still have that in front of you?
A. Yes, I do.
Q. And could you turn to Page 00082?
Is there any mention on this page of the Port
Nicholson?
A. No, I can’t see any.
Q. What, if anything, do you understand to be the
relevance of Page 82 to the Secretary’s claims?
A. It was simply part of the minute book.
Q. Let me ask you the same question about Page 83
which I find difficult to read, but maybe you can
tell me if you recall seeing anything on this page
concerning the Port Nicholson.
A. No. There’s nothing about the Port Nicholson.
Q. And is it your understanding that this is just
here because it’s part of the minute book?
A. Yes.
Q. And the same question on Page 84.
A. There’s no reference to the Port Nicholson there.
Q. And there isn’t anything else on this page that is
relevant to the Secretary’s claims?
A. It forms part of the minute book of the Port Line.
Q. And on Page 85, is there anything on this page
concerning the Port Nicholson?
A. There’s no reference there to the Port Nicholson.
Q. So this is included simply because it forms part
of the minute book of the Port Line?
A. I believe so.
Q. Okay. That takes care of Exhibit 72.
Turning to Exhibit 73, it’s a document
captioned Weekly Casualty Reports. Do you see
that?
A. Yes.
Q. Can you identify this document?
A. Yes. It’s a copy of the Weekly Casualty Reports
from December 26, 1941 to the 25th of June, 1942.
Q. And where did this document come from?
A. The document came from the Guildhall Library in
the City of London.
Q. Did you say Guildhall?
A. Guildhall, yes.
Q. And do you know who prepared this document?
A. It was part of a publication that was issued
during wartime.
Q. Is it a government publication or a private
publication?
A. I believe it was a — a live publication.
Q. Let’s go to Exhibit 74. Do you have that
document?
A. I do, yes.
Q. Okay. Do you recognize it?
A. Yes.
Q. Can you identify it?
A. Yes. It’s an index card listing the details of
the Port Nicholson and details of the last voyage,
where it was sunk, and details of the cargo it was
carrying.
Q. And where did this document come from?
A. It also came from the Guildhall Library.
Q. And who obtained it from the Guildhall Library?
A. I did.
Q. And did you go there yourself, or did you ask a
librarian to —
A. I went there myself.
Q. And from what document did you copy these pages?
A. From the Lloyd’s index cards that were made at the
time.
Q. And do you know how this document found its way to
the Guildhall Library?
A. The library are the repository for all
documentation from the Lloyd’s association. They
now hold their wartime records.
Q. Do you have a certificate of authentication for
this document?
MR. SHUSTA: Yes, we do, and we’ll agree to
produce it.
MR. TINKLE: I would ask for that.
Q. So this document indicates that the Port Nicholson
was torpedoed at 4:15 A.M.; is that correct?
A. I believe it says 2:15 A.M.
Q. I’m sorry. I was looking at a different — below
that it says something about “Fleet says torpedoed
at 4:15 A.M. GMT.”
A. Yes, it does, yes.
Q. I don’t know if that makes any difference. Is it
fair to say that this document simply indicates
that the Port Nicholson sunk — sank rather?
A. Yes.
Q. Beyond that does it have any relevance to the
Secretary’s claim?
A. It refers to the ship being owned by the Port Line
Ltd.
Q. Anything else?
A. No.
Q. Let’s move to Exhibit 75. Do you recognize this
document?
A. Yes. It refers to the agreements between the
Minister for War Transport and the Liverpool and
London War Risks Association.
Q. Where did this document come from?
A. I believe it came from the House of Commons
Library.
Q. You believe that. What is the basis for that
belief?
A. It has the agreement that was placed before the
House of Commons.
Q. So you were inferring from that that it came from
the House of Commons Library?
A. Yes.
Q. And do you know who obtained this document?
A. I believe that would have been Caroline Boone.
Q. Do you have a certificate of authentication for
this?
A. No.
Q. What do you understand to be the relevance of this
document to the Secretary’s claim?
A. It describes the agreement between the Minister
for War Transport and the Liverpool and London War
Risks Insurance Association Limited, the
reinsurance of British ships against King’s Enemy
Risks.
Q. For the reinsurance of British ships that were
insured by Liverpool and London War Risks
Insurance Association?
A. Yes, that’s correct.
Q. You produced this document in response to a
request from Sea Hunters for documents between the
United Kingdom and the owners of the Port
Nicholson. Will you agree that this is not an
agreement between the UK and Port Line?
A. It is not.
Q. And there never was an agreement between the
United Kingdom and Port Line, was there?
A. I don’t know.
MR. SHUSTA: Are you talking about an
insurance agreement? What type of agreement are
you talking about?
MR. TINKLE: Any kind of an agreement.
MR. SHUSTA: Other than the charter party
that’s already been testified to?
MR. TINKLE: Well, it was testified to that
there was no charter party.
MR. SHUSTA: That he didn’t find a copy of
the charter party. But go ahead.
Q. Are you aware of any agreement between Port Line
and the United Kingdom?
A. Port Line ships were requisitioned for war service
by the Ministry of War Transport.
Q. Let me ask the question again. Are you aware of
any document embodying an agreement between Port
Line as the owner of the Port Nicholson and the
United Kingdom?
A. I have not seen any document.
Q. Exhibit 75 refers to “the Minister of Shipping
(Transfer of Functions) Order, 1939.” And I think
we discussed that. And then it refers to
“Ministers of the Crown (Minister of War
Transport) Order, 1941.” Are you familiar with
that order?
A. No.
Q. And you don’t have a copy of that order?
A. I don’t have one with me, no.
Q. Do you have a copy somewhere else?
A. I haven’t got a copy.
Q. And you don’t know what the order says, do you?
A. No.
Q. This isn’t the entire agreement, is it, between
the Minister of War Transport and Liverpool and
London War Risks Insurance Association?
A. Sorry. Are we still referring to —
Q. To Exhibit 75. It appears to be part of an
agreement but not the whole thing. Would you
agree with me?
A. I believe it to be the front sheet.
Q. And — well, the first page, and then there are —
there are three pages of text. And I guess my
question is simply is it your position —
MR. SHUSTA: I’m sorry. I —
Q. Is this the entire agreement?
A. I’m sorry. I didn’t have the full paper there.
Yes, I believe that would be the full agreement.
MR. SHUSTA: Mr. Tinkle, we will check. If
it turns out that some page got left out, we’ll be
happy to produce it.
MR. TINKLE: Thank you.
Q. Do you know if this agreement was signed?
A. I believe it’s signed on Page 136.
Q. Where do you see the signature?
A. Underneath “Minister of War Transport on Behalf of
His Majesty.”
Q. Well, there would be a place for a signature
there; but do you see a signature?
A. Not clearly, no.
Q. And do you see a signature on behalf of Liverpool
and London?
A. The copy I have isn’t legible enough to show that.
MR. SHUSTA: Why don’t I point out that there
is a signature on the page. It’s on the side of
the page.
MR. TINKLE: Well, there is something on the
side of the page.
Q. Is it your understanding, Mr. Cousins, that this
is a signature from somebody, or are these notes
that somebody wrote?
A. I can’t confirm that.
Q. And have you seen another version of this
agreement that has signatures on it?
A. No.
Q. Next I call your attention to Exhibit 76. Can you
identify this document?
A. This is an agreement between the Board of Trade
and the Liverpool and London War Risks Insurance
Association for the re-insurance of British ships
against King’s Enemy Risks under the War Risk
Insurance Act of 1939.
Q. And where was this document obtained?
A. It was obtained from the House of Commons Library.
Q. And do you know that, or are you just inferring it
from the nature of the agreement?
A. It was obtained from the House of Commons Library.
Q. Okay. Why do you say that?
A. Because Caroline Boone obtained this from the
House of Commons Library.
Q. She told you that?
A. Yes.
Q. And is this the — well, in Exhibit 69 and 75,
which are also agreements with the Liverpool and
London War Risks Insurance Association, or purport
to be agreements, those two agreements refer to an
early agreement dated September 22nd, 1939. And
is it fair to assume that this is the agreement
that they’re referencing?
A. I can’t confirm that.
Q. Okay. On Page 2 of the agreement UK docket No.
202, it refers to “vessels entered in the
Association.” Do you see that?
A. In the second paragraph?
Q. Yes.
A. Yes.
Q. And it’s your contention that the Port Nicholson
was entered into the association?
A. Yes.
Q. But you don’t have a document that shows that, do
you?
A. I do not have anything that specifically refers to
the Port Nicholson, no.
Q. And Exhibit 76 doesn’t mention the Port Nicholson,
does it?
A. No.
Q. And it doesn’t mention Port Line, does it?
A. No.
Q. And this agreement has some schedules attached to
it. Do you see that?
A. Yes.
Q. Have you seen an insurance policy on the Port
Nicholson in a form as set forth in any of the
schedules?
A. No.
Q. And in fact, you haven’t seen an insurance policy
on the Port Nicholson at all; isn’t that correct?
A. That’s correct.
Q. If we look on Page 208, it’s actually Page 8 of
the document. It’s UK document 208.
A. Yes.
Q. Would you agree with me that this isn’t a copy of
the actual signature page; it’s sort of a mock-up
of the signature page?
A. There are no actual signatures.
Q. And have you seen a copy of this agreement that
has actual signatures on it?
A. No.
Q. According to this document, do you know what
percent of the association’s liability the Board
of Trade would assume?
A. On Page 203, Subsection C, “The reinsurance by the
Board of Trade in either case shall cover 80
percent of the liability which would attach to the
Association as insurer.”
Q. Do you know whether any governmental agency agreed
to assume more than 80 percent of the liability?
A. No.
Q. Is it your understanding that the liability was
limited to 80 percent throughout the war?
A. I believe there were variations throughout the
war.
Q. Was it ever more than 80 percent?
A. It may have been, yes.
Q. And what do you base that on?
A. Personal experience.
Q. And by that you mean that you’ve seen some other
documents that indicate a higher percentage?
A. Other cases it may have been higher.
Q. Can you point me to any document that indicates a
higher percentage?
A. I’m afraid not. I can’t recall where I saw it.
Q. All right. Let’s look at Exhibit 77. Can you
identify this document?
A. They were ledgers that were compiled by the
Ministry of War Transport relating to the Schedule
of Claims Passed for Payment for losses during
World War II.
Q. And where did this document come from?
A. The documents are housed with the Admiralty
archives.
Q. And is that a public archive?
A. I don’t know. It’s a Ministry of Defense
establishment.
Q. And do you have a certificate of authentication
for this?
A. No. I don’t believe so.
Q. Who obtained this document from the Admiralty
archives?
A. I believe it was an archivist who was digitizing
the record.
Q. So was this an archivist who was an employee of
the Admiralty archives?
A. No.
Q. What was the name of the archivist?
A. His name was Roger Abbotts.
Q. The last name was Atlas did you say?
A. Abbotts.
MR. SHUSTA: Abbotts. I think there’s an
S on the end, Abbotts.
Q. And who employed Mr. Abbotts?
A. He’s not employed by anyone.
Q. So he is an independent archivist?
A. He is an independent archivist. He took
photographs of the entire set of ledgers for World
War II and passed a copy to us.
Q. Do you know when he made copies of the entire set
of — of ledgers?
A. I believe it was 2012.
Q. Did he make the copies at your direction, or did
he just do that independently?
A. It was not at our direction, no.
Q. But you found out that he had a copy, so you
contacted him? Is that what happened?
A. No. The archivist at the Admiralty Library asked
if he could have access to these ledgers as they
originally were part of our records. We agreed on
the provision that a copy was provided to us.
Q. So as of now, your only copy of these ledgers are
what you obtained from Mr. Abbotts?
A. Yes, that’s correct.
Q. And photocopies show somebody’s hand in the
picture. Do you know who that was?
A. I don’t know. I assume it’s Mr. Abbotts.
Q. Okay. So let me see if I can get this straight.
Originally you said that these ledgers were in,
quote, our, unquote, office. Do you mean — what
do you mean by our?
A. These originally were part of the records of the
Department for Transport.
Q. At what point did they go into the Admiralty
archives?
A. I can’t be precise, but I believe it was more than
10 years ago.
Q. Was it before you started in your current position
as contingency planner?
A. No, no, it wasn’t.
Q. Were you involved in any way in the transfer of
these ledgers to the Admiralty archives?
A. Yes, I was.
Q. Did you oversee the transfer of the ledgers?
A. Yes.
Q. Okay. So then sometime more than 10 years ago the
ledgers were transferred to the archives. And
around 2012 Mr. Abbotts asked to have — to take
the originals, and he provided you with a copy; is
that correct?
A. He didn’t take the originals.
Q. Okay. What —
A. He took copies — he took photographs of the
original ledgers in the Admiralty Library.
Q. Okay. So are the originals, as far as you know,
still in the Admiralty archives?
A. Yes, they are.
Q. But you’ve never seen them there; is that correct?
A. I have never seen them there, no.
Q. Do you know who is in charge of the Admiralty
archives?
A. It’s been some time since I’ve had any contact;
but yes, I believe I do.
Q. On the top of the pages — okay, I’m sorry.
Strike that.
What’s that person’s name, the person who
is — who is in charge of the Admiralty archives?
A. I believe it’s a Miss Jennifer Wraight.
Q. Have you ever discussed these particular ledgers
with her?
A. Only when they were being transferred and when Mr.
Abbotts asked for approval to photograph them.
Q. Has anybody else sought approval to — to
photograph these archives as far as you know?
A. Not as far as I know.
Q. Do you have any personal knowledge of where these
were photographed, whether they were taken out of
the archives or not?
A. I have no personal knowledge of that.
Q. On the top of these ledgers it says War Risk
Insurance Office. What is your understanding of
what the War Risk Insurance Office is or was?
A. The War Risk Insurance Office was a branch of the
Ministry of Transport, or War Transport, which
arranged for the reinsurance of British ships and
the insurance of cargo during World War I and II.
Q. Do you know when it was established?
A. I believe it was first established during World
War I.
Q. Did it operate continuously through World War II,
or did it cease to exist and then was
reestablished at the outbreak of the Second World
War?
A. I believe it was in a dormant status between the
wars.
Q. Has it closed down?
A. It’s again in a dormant status.
Q. How long has it been in a dormant status?
A. Since 1992.
Q. And in its dormant status it has no employees; is
that correct?
A. That’s correct. That is correct, yes.
Q. And it has no offices?
A. No.
Q. Have you ever talked to anyone who worked for the
War Risk Insurance Office?
A. No.
Q. Is it your understanding that every payment that
the — that the Ministry of War Transport made for
vessel insurance is reflected in these ledgers?
A. These ledgers refer to cargo, not to vessels.
Q. Okay. Are there other ledgers that refer to
vessels?
A. I have no knowledge of that.
Q. So you’ve never seen ledgers that refer to
payments for vessels?
A. I have never seen them, no.
Q. And you don’t know who prepared these ledgers, do
you?
A. They would have been prepared by the Ministry of
War Transport staff at the time.
Q. And you don’t know specifically who prepared them?
A. No.
Q. And to the extent that there are handwritten notes
on these, you don’t know who made these
handwritten notes, do you?
A. You mean the handwritten notes on the —
Q. On the ledgers, the actual ledgers.
A. The actual ledgers, no.
MR. HOLBROOK: What number is that Marshall?
MR. TINKLE: Exhibit 77.
Q. On the first page, 091, do you know what the date
is on this document?
A. No. I’m afraid the copy isn’t legible enough to
see that.
Q. And can you tell whether there is a line for the
Port Nicholson?
A. Again, the copy I have isn’t clear enough to show
that.
Q. Let’s go to Page 092, the next page. Do you know
who prepared this document?
A. Are you referring to the handwritten notations
there —
Q. Yes.
A. — or to the actual ledger?
The details were copied out from the original
photographs by Caroline Boone.
Q. And she did that because the — the copies that
you had weren’t legible?
A. They didn’t print out.
Q. And this refers on the top left-hand side to a
payment number, and then it says C63132. What
does that signify?
A. That’s how payments were recorded.
Q. Is that referring to a check number?
A. I don’t know.
Q. Do you know if the payments were made by check or
by some other method?
A. I have no — I have no knowledge about that.
Q. Did the War Risk Insurance Office keep copies of
canceled checks?
A. Not that I’m aware of.
Q. Do you know if they wrote checks from the
Department of the Exchequer, or was it from
another bank?
A. I don’t know that.
Q. You don’t know.
The next entry says Docket No. 95782. Do you
know what that refers to?
A. No.
Q. And that lists the payee as the Undersecretary of
State for War.
A. Yes.
Q. Do you know why the Undersecretary of State for
War was the payee?
A. No.
Q. And then for Amount, that seems to be blank; is
that correct?
A. Yes.
Q. Okay. And the next entry, it looks like Cheque
Issued For. Is that what that says?
A. Yes.
Q. So does that indicate that there was a check that
was written?
A. It does indicate that, yes.
Q. But you’ve never seen the check; is that right?
A. That’s right.
Q. And that check was for 200 pounds —
A. Yes.
Q. — according to this?
Okay. Going to 093 and 094, do these pages
go together?
A. It would seem so.
Q. And is it your understanding that Page 094 is
notes that somebody took based on the original of
093 because your department’s copy was illegible?
A. Yes, that’s correct.
Q. And was that person again Ms. Boone?
A. Yes, it was.
Q. And this on 094 this indicates a payment to the
National Bank of New Zealand Limited. Is that
correct?
A. Yes, that’s correct.
Q. And the check was for 1,726 pounds?
A. Yes.
Q. And that’s according to the notes that purported
to come from Page 093. Is that correct?
A. I believe so, yes.
Q. And again, you’ve never seen a copy of any check
to the National Bank of New Zealand Limited for
1,726 pounds?
A. No.
Q. And it’s your understanding that 095 and 096 go
together?
A. I believe so, yes.
Q. And that 096 is notes that were taken from a
version of 095 that’s legible?
A. Yes.
Q. And you personally haven’t seen the legible copy,
have you?
A. I have a copy of the original disc which was
legible.
Q. Can you produce that?
MR. SHUSTA: I don’t know. We’ll have to
see. I think we already produced it as a digital
file, but it might have been a scan from what was
printed. We’ll see if there is a way to produce a
digital file that would be clear, provided we get
some digital files from Sea Hunters pretty soon.
Q. Page 096 refers to a payment to Morice,
M O R I C E, Toser, T O S E R, and Beck,
B E C K, Limited, in the amount of 255 pounds; is
that correct?
A. Yes, that’s correct.
Q. And then there is an indication that — I’m
reading the — the next entry, Cheque Issued For,
to mean that the actual check that was issued was
for 3725 pounds, 14 shillings and 4 pence and that
that was for a number of other claims, including a
payment of 255 pounds relating to the Port
Nicholson. Is that — that your understanding?
A. Yes, it is.
Q. And again, you’ve never seen a canceled check for
that amount, have you?
A. No.
Q. Turning to Page 098, have you ever seen a check to
the Undersecretary of State for War in the amount
of 100 pounds?
A. No.
Q. And turning to 400100, have you ever seen a check
to the Undersecretary of State for War in the
amount of 200 pounds?
A. No.
Q. Would you agree that Exhibit 77 is the entire
universe of known documents that indicate some
kind of a payment by the — the War Risk Insurance
Office with respect to the Port Nicholson?
A. They relate to claims made under War Risk
Insurance Act relevant to the time by the War Risk
Insurance Office for claims.
Q. Right. But you’ve never seen any other ledgers
indicating a payment by the War Risk Insurance
Office for the vessel itself, have you?
A. No.
Q. Have you investigated why there aren’t ledgers for
that?
A. It hasn’t been possible to find any.
Q. And you’ve looked for those diligently?
A. Yes.
Q. So these are the only payments listed by the
WRIO for cargo claim payments; is that correct?
A. That’s correct.
Q. If there had been any other payments for any other
kind of cargo, they would have been listed on
these ledgers; is that correct?
A. I would assume so, yes.
Q. Please turn to Exhibit 78. This is a two-page
document that’s UK DfT numbers 00127 and 00128.
Can you identify this, please?
A. Yes. These are copies of the index cards that
relate to claims made under the War Risk Insurance
Act and related to the ledgers that we’ve just
described.
Q. Where did you obtain these index cards?
A. They’re held by my department.
Q. So your department has its own set of archives; is
that correct?
A. We have some archived material.
Q. And where are those materials kept physically?
A. They’re kept at the Department for Transport,
Great Minster House.
Q. The same building that you’re sitting in right
now?
A. That’s correct.
Q. So did you personally obtain copies of these index
cards?
A. Yes.
Q. And is there an archivist or librarian that’s in
charge of these index cards?
A. No.
Q. Who is in charge of these index cards? Who has
physical custody?
A. I do.
Q. Well, are they kept in your office?
A. No. They’re kept in a secure location in the
building.
Q. Who is the person who is in charge of making sure
that these documents are secure?
A. That would be any member of my team.
Q. When you got these index cards, did you go to the
specific room that they’re kept; or did somebody
in your team provide them to you?
A. No. I collected them.
Q. Do you know who prepared these index cards?
A. They would have been prepared by the War Risk
Insurance Office, the Ministry of War Transport
staff at the time of the sinking.
Q. Well, would it have been at the time of the
sinking, or would it have been when somebody made
a claim?
A. I can’t say for sure.
Q. The — do you know who prepared these index cards?
A. They would have been prepared by the Ministry of
War Transport staff.
Q. And you don’t know specifically which member of
the staff?
A. No.
Q. The index card on the side of the first page
indicating National Bank of New Zealand and then
a — some kind of a serial number that begins with
A, does that match with Page 094 in Exhibit 77?
A. Yes, it does.
Q. Have you ever seen a notice of claim from the
National Bank of New Zealand?
A. No.
Q. Do you know what that serial number underneath
National Bank of New Zealand which is A836490
signifies?
A. No.
Q. The next line down says, “Carbide of Calcium.”
A. Yes.
Q. What does that signify?
A. That’s the description of the items that were
lost.
Q. The index card on the right side, does that match
Page 096 of Exhibit 77?
A. Yes, it does.
Q. So that this card indicates that the — the
payment was for plywood. Is that your
understanding?
A. Yes.
Q. And the — according to this card it says 255.
What is your understanding of that?
A. It refers to the 255 pounds claim that was made.
Q. And below that there is an indication — it looks
like 65940. Do you know what that means?
A. Yes. That’s the payment number.
Q. And does that correlate with any check you’ve
seen?
A. No.
Q. The next page 00128 has three index cards; and
these all say, “Personal Effects.” Do you see
that?
A. Yes.
Q. Do you know what personal effects these were
referring to?
A. They would be personal effects of crew or
passengers on board the Port Nicholson at the time
it was sunk.
Q. And you don’t know what these personal effects
consisted of, do you?
A. No.
Q. And you don’t know how these figures in pounds,
200 pounds, 100 pounds and 200 pounds, were
arrived at?
A. No.
Q. And you would agree that personal effects aren’t
the same as cargo, correct?
A. They’re treated in the same way.
Q. So in other words, when you — when you told me
before that these ledgers were just for cargo, you
meant that they’re also for cargo and personal
effects?
A. Personal effects were covered by the War Risk
Insurance Office, yes.
Q. Okay. But you understand that just as a matter of
definition, cargo is what’s consigned to the ship
as goods in transit and would not be — would not
include personal effects of the crew or
passengers, correct?
A. I’m sorry. I don’t understand the question.
Q. I understand that the War Risk Insurance Office
was, according to you, willing to pay insurance
for personal effects, right?
A. The company indicated that, yes.
Q. But you would agree with me that personal effects
is not the same as cargo?
A. Yes. Cargo is carried by the ship, yes.
Q. So the only payments for cargo the government
claims to have made are those reflected on the
first page of Exhibit 78, these two payments for
carbide of calcium and plywood, correct?
A. Yes.
Q. Does your department claim — well, let’s back up.
Do you know whether these payments for
carbide of calcium and plywood represented payment
for the value of these items?
A. I can only say that that’s what the ledgers
suggest.
Q. Do the ledgers ever say that this is payment in
full?
A. I don’t know.
Q. Is it your department’s contention that it did, in
fact, make payments of 1,726 pounds for carbide of
calcium and a payment of 255 pounds for plywood?
A. That’s what the ledgers say, yes.
Q. And is your government claiming that as a result
of that it has an ownership interest in the lost
carbide of calcium and plywood?
A. If an insurance claim was paid, then yes.
Q. You claim an ownership right to any other cargo
besides these two items?
A. The Port Nicholson was also carrying noninsured
goods.
Q. And you would agree that you don’t have any
interest in those noninsured goods, correct?
A. No. They were government goods, part of the war
effort being sent to New Zealand. They were
government-owned cargoes and such would not have
been covered by the War Risk Insurance Office.
Q. Do you have proof that there was other cargo on
board the ship that was government owned?
A. The index cars refer to automobile parts and other
equipment and to government stores.
Q. Well, we’ll get to the index cards; but first
let’s look at Exhibit 79. Do you recognize this
document?
A. Yes. This is Lloyd’s War Losses for the Second
World War from the 3rd of September, 1939, to the
14th of August, 1945.
Q. Where did you obtain this document?
A. This is a volume of Lloyd’s War Losses that’s
prepared — was published by Lloyd’s.
Q. Do you know who at Lloyd’s compiled the
information contained in this book?
A. It was compiled by Lloyd’s.
Q. I’m asking you who at Lloyd’s compiled it.
A. No. I don’t know who compiled it.
Q. And do you know from what records they compiled
these — these pages?
A. They would have been compiled from Lloyd’s War
Loss records that were made at the time.
Q. Do you know anything about this — this volume,
Lloyd’s War Losses, other than what’s contained in
it?
A. No.
Q. So you don’t know from what information these
entries were — were made, do you?
MR. SHUSTA: I’m going to object to the form
of the question. The document speaks for itself,
and the document explains from what entries —
from whence the information came.
You can answer the question. You can answer.
A. As I understand, the volume was compiled from the
Lloyd’s index that was taken at the time. The
card that we referred to earlier which I obtained
from the Guildhall Library was an example of the
sort of information that was prepared at the time
of the loss. That would be part of what Lloyd’s
then used to compile this volume.
Q. Let’s look at the last page of this exhibit,
00108. There appears to be an entry for Port
Nicholson. Do you see that?
A. Yes.
Q. And could you read what it says about cargo?
A. Cargo is listed as 1,600 tons automobile parts and
4,000 tons of military stores.
Q. This doesn’t say anything about carbide of
calcium, does it?
A. No, it doesn’t.
Q. It doesn’t say anything about plywood, does it?
A. No.
Q. And you don’t know why those — those items were
omitted?
A. No, I don’t know.
Q. But you believe that carbide of calcium and
plywood were on the vessel?
A. Yes.
Q. So it’s your understanding that this isn’t a
complete list of the cargo?
A. It does not list the carbide of calcium or the
plywood.
Q. So it’s not a complete list?
A. No.
Q. Does it say anything about who owns the 1,600 tons
of automobile parts?
A. No.
Q. The British government didn’t own all of the
automobile parts in Great Britain, did it?
A. I don’t know.
Q. It doesn’t indicate who owned the 4,000 tons of
military stores.
A. No, it doesn’t.
Q. Could those have come from another country?
A. I don’t know.
Q. The War Risk Insurance Office never paid for any
automobile parts for the Port Nicholson, did it?
A. The War Risk Insurance Office did not cover
government-owned cargoes.
Q. But if the automobile parts weren’t government
owned, you would still agree that the War Risk
Insurance Office didn’t pay for it?
A. The War Risk Insurance Office didn’t pay for any
automobile parts.
Q. And it didn’t pay for any military stores?
A. Again, the War Risk Insurance Office would not
cover government-owned cargoes.
Q. Do you know what the military stores consisted of?
A. No.
Q. There is also a subsection of the Port Nicholson
under Remarks. Can you read that?
A. “Master of 3 of crew & 6 men from Corvette
reboarded vessel to attempt salvage. All but 4
from Corvette lost when vessel sank.”
Q. And do you believe that that’s an accurate
statement?
A. I have no reason to doubt otherwise.
Q. Do you have any understanding of what the — the
persons who reboarded the vessel were attempting
to salvage?
A. I would take that to refer to salvage the vessel.
Q. Could it be referring to salvage of cargo?
A. I don’t know.
Q. Isn’t it more likely that it’s referring to trying
to save some items that were on the vessel than
trying to save the ship that’s been torpedoed
twice?
A. I can’t speculate on that.
Q. Does this document indicate the owner of the Port
Nicholson?
A. No.
Q. Have you seen any other Lloyd’s records listing
Port Line as the owner of the Port Nicholson?
A. The Lloyd’s index card that we referred to
earlier.
Q. So the answer is yes?
A. Yes.
Q. And you haven’t seen any Lloyd’s documents listing
any governmental body as the owner of the Port
Nicholson?
A. No.
Q. Can you please turn to Exhibit 80? Can you please
identify this document?
A. These are vessel movement cards relating to the
Port Nicholson.
Q. And did these documents come from the National
Archives?
A. Yes, they did.
Q. Who obtained them?
A. Myself and Caroline Boone.
Q. And when did you obtain them?
A. Sometime during 2012 I believe.
Q. And did you personally get these documents with
Caroline Boone at the archives?
A. Yes.
Q. Under what file are these documents kept?
A. They were under Vessel Movement Cards for Ships
During World War II.
Q. Do you have a certificate of authentication for
this document?
A. No.
Q. Do you have any knowledge of who had these
documents before they went into the Archives?
A. I believe it would have been the Ministry of War
Transport.
Q. And what do you base that on?
A. The fact that they would have kept the records at
that time.
Q. Do you know who prepared these movement cards?
A. No.
Q. Do you know when they were prepared?
A. At or around the time of the various movements
recorded there.
Q. Was that just assumption on your part?
A. Yes.
Q. Okay. Let’s go to Exhibit 81. Can you identify
this document?
A. It relates to a report made by the — I believe it
was the US authorities at the time of the sinking.
Q. So you believe that this document was prepared by
somebody in the United States?
A. I believe so, yes.
Q. Where did this document come from?
A. I believe this came from one of the researchers
that investigated the US Archives.
Q. Was that the — I’m trying to remember the name of
the gentleman you referred to yesterday.
A. Mr. Constandi.
Q. Constandi. Is that who obtained this document?
A. I believe so.
Q. Have you ever talked to Mr. Constandi?
A. I don’t believe I have, no.
Q. Did he send this document to you directly?
A. I believe it was passed to our attorneys.
Q. Do you know where he obtained this document?
A. From the US National Archives.
Q. Do you know when he obtained it?
A. Not precisely, no.
Q. And do you know from what set of records in the
National Archives this document came from?
A. No.
Q. Do you know who prepared this document?
A. No.
Q. Does this document purport to contain information
about the Port Nicholson at the time of its
sinking?
A. It refers to the Port Nicholson, yes.
Q. What does this document say about cargo?
A. It lists the cargo as 1,600 tons automobile parts
from Halifax destined for Australia.
Q. So these — these automobile parts, according to
this document, were picked up in Halifax; is that
correct?
A. That’s what it says, yes.
Q. Do you have any reason to believe that the
information contained in this document is
accurate?
A. I really can’t say. It’s — it appears to be
correct, yes.
Q. And Halifax is in Canada, correct?
A. Correct, yes.
Q. Is it still your contention that these automobile
parts from Halifax were the property of the
British government?
A. Yes.
Q. And how did these British automobile parts wind up
in Halifax?
A. I didn’t say they were British automobile parts.
Q. You’re saying that the British government owned
the automobile parts?
A. Yes.
Q. And what do you base that on?
A. It was a cargo during wartime destined for New
Zealand and was part of the war effort.
Q. It says it was destined for Australia, correct?
A. It does say that, yes.
Q. Does it say that this was part of the war effort?
A. No.
Q. Have you seen any other documents that say
automobile parts for the war effort?
A. No.
Q. Would you agree that vessels such as the Port
Nicholson from time to time carried cargo that was
not for the war effort?
A. I don’t know.
Q. Would you agree that sometimes cargo might have
been — might have had some relation to the war
effort but still not been owned by a government?
A. I don’t know.
Q. Have you seen documents showing cargo from other
voyages of the Port Nicholson?
A. Yes.
Q. Would you agree that the Port Nicholson carried
cargo that was not government owned on other
voyages?
A. I don’t know. At the time it was sunk it was
carrying calcium of carbide and plywood that was
not government owned and was, therefore, reinsured
under the War Risk Insurance Office.
Q. Would you please look at Exhibit 82? Can you
identify this document?
A. It was a report prepared at the time of the loss.
Q. Do you know who prepared it?
A. No.
Q. Do you know where this document came from?
A. I believe this was another document obtained from
the US Archives.
Q. Why do you believe that?
A. Because it appears to be a US report of the
sinking.
Q. Where do you see on it that indicates that it’s a
US report?
A. Nothing specific.
Q. And this document also says for cargo 1,600 tons
cargo of automobile parts?
A. Yes, it does.
Q. And neither this document or the other document
mentions military parts, does it?
A. No.
Q. So do you have an understanding of whether there
were military parts on the vessel or not?
A. The Lloyd’s report lists 4,000 tons military
stores.
Q. Right. And then we have two other documents that
don’t list it. So do you have any explanation for
the discrepancy?
A. They were documents prepared at the time it was
sunk. The people who prepared them may not have
had full details of what the cargo was.
Q. You said the people who repaired them?
A. Prepared them.
Q. Oh, prepared them. Which documents?
A. Exhibit 81 and Exhibit 82.
Q. So is it your understanding that the book Lloyd’s
War Losses is more accurate than the documents
that you believe came from the US National
Archives?
A. Yes.
Q. And what’s the basis for that again?
A. The Lloyd’s War Losses records the actual cargo
that was lost.
Q. Based on what?
A. Based on reports of the cargo made at the time.
Q. Records from whom?
A. From the War Risk Insurance Office and the P & I
clubs, the Port Line Limited.
Q. And what’s your understanding of why — why do you
say that?
A. That would be my personal knowledge.
Q. And you haven’t seen a report from the Port Line
Limited indicating the cargo, have you?
A. No.
Q. And you haven’t seen a report from the War Risk
Insurance Office listing anything other than
carbide of calcium and plywood, have you?
A. No.
Q. Have you seen any other documents listing military
stores on the Port Nicholson?
A. The Lloyd’s War Losses and the Lloyd’s index
cards.
Q. Anything besides that?
A. I don’t recall anything.
Q. Did the War Risk Insurance Office decline to
insure Lend-Lease shipments in 1942?
A. I don’t know.
Q. Do you know if it declined to insure Lend-Lease
shipments prior to 1942?
A. I would have to check my records.
Q. Have you seen a record that indicates that the War
Risk Insurance Office notified Russia on the 13th
of February, 1942, that it wouldn’t insure
Lend-Lease payment — shipments rather?
A. I’ve seen some documents referring to various
agreements with other nations.
Q. Let me show you Exhibit 87. I’ll represent that
this came from your counsel. It’s UK DfT 00186.
Have you seen this document before?
A. Yes.
Q. Do you see in the middle of the page where it
says, “The history was that as soon as the War
Risk Insurance Office realized in early 1942 that
their cover was being used to cover United States
Lend Lease cargo shipped, a meeting was held at
the Treasury, and as a result of decisions then
taken, notice was given to the Russians on
February 13, 1942, that the War Risk Insurance
Office cover did not apply to United States Lend
Lease cargoes and would not do so on and from the
13th of February, 1942 but that as a special
concession the War Risk Insurance Office would not
challenge on this account insurance placed prior
to February 13th.”
Do you see that?
A. Yes.
Q. Do you have any reason to believe that that’s not
accurate?
A. No.
Q. Have you seen any claims — well, you haven’t seen
any insurance claims at all from the War Risk
Office relating to the Port Nicholson, have you?
A. Only for the items that were covered by the War
Risk Insurance Office.
Q. But those weren’t claims for insurance. They were
indications of payment, correct?
A. Correct, yes.
Q. You’ve never seen any claim for insurance that was
submitted to the War Risk Insurance Office, have
you?
A. No.
Q. You haven’t seen any request for payment?
A. No.
Q. Is the Ministry of War Transport still in
existence?
A. No.
Q. Do you know when that ceased to operate?
A. Precisely, no, but I believe it was very shortly
after the end of the war.
Q. Do you know what happened to any rights that the
Ministry of War Transport had after the end of the
war?
A. All rights would have passed to its successor, the
Ministry of Transport.
Q. And was that by an act of Parliament?
A. I don’t know.
Q. Have you seen any documents that specifically say
that the rights of the Ministry of War Transport
passed to the — the Department for Transport?
A. I have not seen anything personally, no.
MR. TINKLE: It’s been requested that we take
a break.
(A short recess was taken.)
BY MR. TINKLE:
Q. Mr. Cousins, do you know when the government
during World War II consigned military parts or
other equipment that it owned to a private shipper
what documents would be generated?
A. I could only assume that they would have been
consigned under the normal commercial practices
for shipping that were in practice at the time.
Q. If the — if the government had owned and lost
1,600 tons of automobile parts and 4,000 tons of
military stores, wouldn’t you expect there to be a
record of that?
A. Yes, I’m sure there was.
Q. And you haven’t seen any records of that, have
you?
A. No.
Q. Have you looked?
A. Yes.
Q. Do you know when the Department for Transport was
first established?
A. No. I’m sorry. I don’t. It’s had various names
over the years.
Q. Well, you indicated before that it’s the successor
to the — to the Ministry of War Transport?
A. Yes.
Q. So was it established after World War II?
A. As I said, there have been various changes of name
over the years since then. It’s been Ministry of
Transport, Department for Transport, Department
for Environment and Transport. It’s had several
different names.
Q. So do you know when it was first established?
A. I’m sorry. When what was first established?
Q. The Department for Transport under any name.
A. Originally, no, I’m afraid not. I’d have to check
on that.
Q. Do you know if the War Risk Insurance Office ever
received any documents transferring ownership of
the Port Nicholson?
A. I don’t know.
Q. Did the Ministry of War Transport receive any
document transferring ownership?
A. I don’t know.
Q. Did the Department for Transport?
A. No.
Q. Did the War Risk Insurance Office ever receive any
document transferring ownership of any cargo on
the Port Nicholson?
A. Transfer ownership? Only insofar as claims were
paid for certain items.
Q. So there was no document such as a bill of sale or
anything like that?
A. I don’t know.
Q. Did anyone from the government of the United
Kingdom ever ask for a document transferring
ownership?
A. I don’t know.
Q. What was the date that the Port Nicholson sank?
A. I believe it was the 16th of June, 1942.
Q. From the 16th of June, 1942 until the end of the
war, did the government make any attempt to
salvage the Port Nicholson?
A. I’m not aware of any.
Q. From the end of the war until 1960 did the
government make any attempt to salvage the Port
Nicholson?
A. I’m not aware of any attempts to salvage the Port
Nicholson.
Q. And that includes from 1960 through the present;
is that correct?
A. Other than that attempt by Sea Hunters, no.
Q. Right. The government has never made any attempt
to salvage the Port Nicholson, correct?
A. The government does not salvage vessels.
Q. Has the government undertaken salvage of any other
private vessels that were sunk during World War
II?
A. As I said, the government doesn’t undertake
salvage work.
Q. Has the government contracted with private
contractors to salvage any vessels?
A. Yes.
Q. Which ones?
MR. SHUSTA: I’m going to object to the
question to the extent that that’s outside the
scope of this discovery, which is the ownership of
the Port Nicholson. Salvage of other vessels has
nothing to do with this case.
MR. TINKLE: Well, it has to do with what the
protocols and procedures are.
Q. So I’m asking you which — which other vessels has
the government been involved with with salvage?
MR. SHUSTA: And that’s not part of your
designation in your Rule 30(b)6 notice either.
MR. TINKLE: Well, it doesn’t have to be part
of the — the notice.
Q. If you know, you can answer the question.
A. There have been many salvage attempts and
recoveries made over the years.
Q. Were the salvagers compensated by a share of the
value of the cargo in those instances?
MR. SHUSTA: I’m going to object again. This
has nothing to do with the ownership of the Port
Nicholson.
MR. TINKLE: It has to do with policies and
procedures for salvage of United Kingdom vessels
and/or cargoes. It’ something that you indicated
that this witness was going to testify about.
MR. SHUSTA: For — well, let me find my
notice here. Hang on a second.
Okay. As long as we’re not getting into
specific instances, go ahead.
Q. The question again was in these many instances
where the government has contracted with private
individuals for the salvage of vessels, were
these private salvors compensated by the
government?
A. The department awards salvage contracts or
agreements with private contractors at a
pre-agreed percentage of return under competitive
tendering or single tender.
Q. And does the government have a fixed percentage —
A. No.
Q. — or does that vary from —
So the answer is no?
A. Yes, that’s correct. The answer is no. I’m
sorry. The picture wasn’t too good there. I lost
the sound as well.
Q. Can you see and hear now?
A. Yes. It’s clear now.
Q. Okay. What has been the range of salvage
percentages?
A. The percentage is — can be anything between 10 or
25 percent.
Q. Have you reached agreements where it’s higher than
25 percent?
A. Personally, no.
Q. And is that 25 percent to the salvor or 25 percent
to the government?
A. 25 percent to the owners, in this case the
government.
Q. And sometimes it’s 10 percent to the owners?
A. That’s correct.
Q. So when a private entity wants to conduct salvage
of a government-owned vessel that has been sunk,
what are the procedures that the government wants
to see followed?
A. The salvor would approach us with a request to
salvage a particular vessel. We would then
ascertain whether the vessel was in fact owned by
the Department, whether there was a cargo of
salvable value on board. We would then ask if
there were any other interested parties. That
would depend on whether we go to competitive
tender or single tender action. After that it
would be for the salvor to present his case and to
offer a percentage return to the department.
Q. And so in each instance where a — a salvor or a
prospective salvor has come to your Department,
the Department first ascertains whether the
government in fact owns the vessel?
A. That’s correct.
Q. And have there been some instances where the
government determines that it doesn’t own the
vessel?
A. It may be that the vessel is foreign owned and
flagged and therefore —
(There was an interruption.)
Q. Go on. I think you started to say in which case.
A. In which case it would not be a UK-registered ship
that was covered by war risk insurance. There are
some cases where the foreign-flagged ship had
actually been taken into service by the UK
government at the time. An example would be the
ships from Norway and Denmark that were occupied
during World War II, and their merchant ships were
in essence reflagged under the British flag. And
therefore, the war risk insurance rules would
apply.
Q. So in instances where you determine that the
government is not the owner, do you simply tell
the salvor to contact the — the correct owner?
A. Yes, that’s right.
Q. Because it’s the government’s position that if it
doesn’t own the vessel, then it really has no
stake in what salvage operations happen to the
vessel; is that correct?
A. That’s correct, yes.
Q. And is there a written protocol dealing with
proposed salvage of vessels?
A. We have guidelines for prospective salvors, yes.
Q. And these are written guidelines?
A. Yes.
Q. And who prepared the written guidelines?
A. Various people over the years, myself included.
MR. TINKLE: Would you produce a copy of the
guidelines?
MR. SHUSTA: We will take it under
advisement. I don’t see any reason that they
are — in any way that they’re relevant to your —
your alleged lien for salvage; but if you want to
make a request for them, then we’ll take it up
with the Magistrate.
MR. TINKLE: We can discuss that.
MR. KAPLAN: I just have a question. Are you
segueing into an expert deposition of Rob rather
than a 30(b)(6) deposition of UK?
MR. TINKLE: I’m asking him what he knows
about.
MR. KAPLAN: Stuff that’s on his expert
witness designation.
MR. TINKLE: And what’s included in the
30(b)(6).
Q. When did you first learn that the Port Nicholson
was the subject of litigation in the United States
District Court in the District of Maine?
MR. SHUSTA: I’m going to object. You went
through this line of questioning yesterday.
But you can answer, Rob, if you want to go
through it again.
Q. Well, you indicated that there was a newspaper
article indicating that somebody had found the
vessel and that at some point it was determined
that the vessel was the Port Nicholson. When did
you learn that there was litigation over the Port
Nicholson?
A. I’m sorry. I don’t really understand the
question. I wasn’t aware there was previous
litigation.
Q. No. I’m talking about the current litigation,
that there was a lawsuit that was started or a
civil action that was started and that the Port
Nicholson was involved.
A. Well, that would be when I consulted with our US
legal representatives.
Q. Would you look at Exhibit 83? Do you recognize
this document?
A. Yes.
Q. Did you have any input in the preparation of this
document?
A. Only insofar as I administered the war risk
insurance vessels.
Q. This indicates that the United Kingdom has
reserved its rights in — in such vessels,
including the Port Nicholson. Do you see that?
A. In the first paragraph?
Q. It’s on Page 2, the first paragraph.
A. Yes.
Q. How did the government reserve its rights to the
Port Nicholson?
A. The Port Nicholson was lost by enemy action during
World War II; and as a result the legislation in
force at the time of its sinking, the vessel
became the property of the government, the UK.
And as such the government remains the owner.
Q. But my question is how did the government reserve
its rights?
A. I’m sorry. I don’t understand the question.
Q. Well, I’m just reading — if you don’t know the
answer, that’s fine; but it says that the — “All
sovereign rights and other rights in such vessels,
cargo, artifacts and other contents have been
reserved.” And I’m just asking if you know how
those rights were reserved.
A. No, I don’t.
Q. And it says at the beginning of Paragraph 2 that
“the UK DfT is the owner of the vessel, its
tackle,” et cetera, “cargo,” “by operation of law,
including War Risks Insurance Act 1939, Chapter
57.” And you would agree with me that the War
Risk Insurance Act doesn’t say anything about the
ownership of insured vessels, does it?
A. I don’t know.
Q. Do you know what other law would — would give the
UK ownership of the Port Nicholson and its cargo?
A. I’m not aware of anything, no.
Q. Have you had any communications with Mission
Recovery or Daniel Stochel regarding the Port
Nicholson?
A. I was part of a telephone conference that was held
last year.
Q. And who else was involved in that telephone
conference?
A. That would be our US legal representatives and
Caroline Boone.
Q. And Daniel Stochel?
A. Yes.
Q. Anybody else?
A. I don’t recall.
Q. And what was the purpose of that telephone
conference?
A. It was to discuss their entry into the case.
Q. Was this before or after they entered the case?
A. I don’t recall.
Q. I’ll show you Exhibit 84. Do you recognize that
document?
A. I believe it was the agenda for the phone
conversation.
Q. The first item is “Exchange of Background
Information.” Do you recall what background
information was exchanged?
A. No, I’m afraid I don’t. I didn’t actually take
part in the conversation.
Q. You were just listening?
A. Yes.
Q. Did Mission Recovery give some background
information?
A. I don’t recall.
Q. Do you recall what Mr. Stochel said about the
Mission Recovery salvage plan?
A. I believe some mention was made of hiring a
suitable vessel.
Q. Hiring what?
A. A suitable vessel.
Q. What was discussed concerning individual and
shared objectives?
A. I don’t recall.
Q. Do you recall anything about shared objectives
being discussed?
A. No.
Q. What was discussed about areas of cooperation
between you and Mission Recovery?
A. I really don’t recall.
Q. Did you take any notes of this telephone
conference?
A. No, I didn’t.
Q. Do you recall what was discussed about anticipated
timetables?
A. No.
Q. Do you recall what was discussed about action
items or next steps?
A. No, I don’t.
Q. Do you have any recollection at all about anything
that was discussed during this conversation?
A. As I say, I recall there was some mention of using
a vessel that I was familiar with, the Deep Sea
Worker.
Q. How are you familiar with that vessel?
A. I’ve seen it in port.
Q. In superior court did you say?
A. In port.
Q. Oh, in port.
Where is it — where is it moored?
A. I saw it when it visited the UK.
Q. Do you know who owns the Deep Sea Worker?
A. I believe it’s Swire Limited.
Q. Have you had any discussions with Swire about Deep
Sea Worker?
A. No.
Q. When the Deep Sea Worker was in port in the UK,
did you — did you go aboard?
A. Yes.
Q. Yes?
A. Yes.
Q. And you talked to crew or people who were on the
vessel?
A. I didn’t speak to the crew.
Q. Did you speak to the captain?
A. No.
Q. Did you speak to somebody on board the vessel?
A. Yes.
Q. Who was that?
A. I spoke with representatives of the company
conducting the salvage operation at the time.
Q. And what salvage operation were they conducting?
A. That would have been the salvage of the SS
Gairsoppa.
Q. Grasshopper?
MR. SHUSTA: Gairsoppa.
Q. And what was the Gairsoppa? What kind of a vessel
was that?
A. That was a merchant ship.
Q. And was that a vessel that was sunk during World
War II?
A. Yes, it was.
Q. And did the government claim ownership of it?
A. Yes.
Q. And did the government have some kind of an
agreement with Swire?
A. No.
Q. Did the government have an agreement with somebody
else about the salvage of the Gairsoppa?
A. Yes.
Q. Who is that?
A. That would be Odyssey Marine, Incorporated–
sorry, Odyssey Marine Exploration.
Q. And was it your understanding that Odyssey Marine
Exploration had engaged Swire to provide a vessel
for the salvage work?
A. Yes.
Q. And that vessel is the Deep Sea Worker?
A. Yes.
Q. And what was the result of that salvage operation?
A. It was a successful operation.
Q. And what cargo was obtained?
A. Silver bouillon.
Q. And what was the worth of the silver bouillon?
A. I don’t know the precise amount.
Q. Did the government get a share of the — the value
of the bouillon?
A. Yes.
Q. Do you know what that was?
A. Can I talk to my counsel, please?
MR. SHUSTA: Off the record, please.
(A short recess was taken.)
BY MR. TINKLE:
Q. I think the last question was what did the
government obtain — what percentage of the
recovery did the government get from the salvage
of silver bullion from the Gairsoppa?
A. It’s not our usual practice to disclose this
information because we regard it as being
confidential. However, to the extent that Odyssey
have reportedly — have reported the percentage
split in the press as 80/20 — that’s 20 percent
to the government — then I can’t disagree with
those figures.
Q. So getting back to — we got off on this issue
because in the discussion with — with Mr. Stochel
he indicated that — that he might be using the
Deep Sea Worker. Is that your understanding?
A. Yes.
Q. And was — was Mission Recovery asking for the
UK’s support?
A. I believe so, yes.
Q. And has the — the government provided any
support?
A. No.
Q. Have — has the government and Mission Recovery
reached any kind of an agreement?
A. No.
Q. Have there been any further discussions between
the government and Mission Recovery after this
phone conference that you mentioned?
A. Not that I’m aware of.
Q. Is it your understanding that there are
negotiations that are still ongoing?
A. No.
Q. Do you recall anything else that was discussed in
the phone conference?
A. No.
Q. Was there any discussion concerning Sea Hunters?
A. I don’t recall.
Q. Has your department had communications with
Godfrey Bradman concerning the Port Nicholson?
A. There was an inquiry.
Q. An inquiry from Mr. Bradman or an inquiry from
your government?
A. There was an inquiry from another department
regarding the Port Nicholson and Mr. Bradman.
Q. Which department was that?
A. I believe it was the Treasury Department.
Q. Have you talked to anybody in the Treasury
Department about this inquiry?
A. No.
Q. How did you hear about it?
A. Through our own departmental special advisers.
Q. And what did they tell you?
A. That they’d received an inquiry from a Mr. Bradman
regarding the Port Nicholson.
Q. And what was he inquiring about?
A. Whether the government would enter into a salvage
agreement regarding the Port Nicholson.
Q. A salvage agreement between the government and
whom?
A. I don’t think that was specified at the time.
Q. Have you learned later who he was representing?
A. No.
MR. KAPLAN: Who Mr. Bradman was
representing?
MR. TINKLE: Yes.
Q. Was it your understanding that he was acting on
his own behalf?
A. I believe so, yes.
Q. So was — is it your understanding that he was
making a proposal about salvaging the Port
Nicholson?
A. Yes.
Q. And what became of that inquiry?
A. I told them that there was an ongoing legal case
concerning the Port Nicholson and that we would
not consider entering into any salvage agreement
for a cargo that we believed was nonexistent.
Q. So who did you tell that to?
A. I told that to our departmental special advisers.
Q. And was it your understanding that they got back
to Mr. Bradman with that information?
A. I believe they would have passed that information
along, yes.
Q. And do you know if there were any follow-up
communications involving —
A. I never heard of any.
Q. So to the best of your knowledge, no deal was ever
reached involving Mr. Bradman?
A. To the best of my knowledge, no.
Q. Could you look at Exhibit 86? Have you seen this
document before?
A. Yes.
Q. And did you approve it before it went out?
MR. SHUSTA: Object to that in the sense that
it verges on the attorney-client privilege. You
don’t get to ask him what he approved that we
might have done or what we approved that he might
have done.
MR. TINKLE: I’ll withdraw the question.
Q. If you turn to Page 3, look at the third paragraph
on Page 3. Do you see the suggestion that Sea
Hunters lied about the existence of certain
documents?
A. Yes.
Q. Do you know what documents the UK is referring to?
MR. SHUSTA: I’m going to object to the form
of the question in that the letter was from
counsel regarding a discovery dispute.
Q. Do you know what documents the letter is referring
to?
MR. SHUSTA: You can answer, Rob, if you
know.
A. Not specifically, no.
Q. Are you aware of any evidence that Sea Hunters
lied about any documents?
A. Not specifically.
Q. Are you aware generally of evidence that Sea
Hunters lied about any documents?
A. I believe the documents that have been produced
have not been verified, and their origin cannot be
proven.
Q. It’s referring to — it’s Exhibit 19 which
probably doesn’t help you because you probably
don’t have that with you; but it’s a set of
documents that was attached to a joint status
report. It was filed with the Court in June of
2012. Is that what you’re referring to?
A. I don’t have any documents with me.
Q. Okay. Well, what — what documents are you
referring to that — where they can’t be verified?
A. I’m sorry. I don’t have those documents with me.
Q. Okay. So where do you derive at your
understanding that Sea Hunters has filed documents
that can’t be verified?
A. Documents that have been produced have not
appeared to be genuine.
Q. And why do you say that?
A. From my experience of wartime documents associated
with wrecks, there appear to be several
discrepancies in the documents that I’ve seen.
Q. Tell me about those discrepancies, please.
A. I don’t have the documents with me.
Q. Is one of them a document from the United States
Customs Service?
A. I’m sorry. I don’t have the document with me.
Q. Is one of them a United States Treasury Department
document?
A. I do not have the document in front of me.
Q. I understand that, but you’re —
A. I’m sorry. I will not comment on them unless I
can see them in front of me.
Q. Well, you have those documents in your file, don’t
you?
A. Yes, we would.
Q. Can you get them in the next couple of minutes?
A. No.
Q. Why not?
A. Because I’m not in my office.
Q. Okay. How long would it take you to get these
documents?
A. I’m afraid I can’t get the documents. My office
is under renovation at the moment, and I won’t be
able to get into it until Monday.
Q. Okay. So as you sit here today, you can’t tell me
what discrepancies there are in these documents;
is that correct?
A. That’s correct.
Q. Has the United Kingdom Department for Transport
ever been solicited in any way by Sea Hunters or
any of its affiliates?
A. I’m sorry. What do you mean by solicited?
Q. Asked for money.
A. No.
Q. And the United Kingdom hasn’t invested any money
in Sea Hunters or any of its affiliates, has it?
A. No.
Q. Has the United Kingdom communicated with any
investors other than Mr. Stochel?
A. No.
Q. Do you contend that the United Kingdom has been
misled in any way by Sea Hunters?
A. To the extent that we did not consider there was
any valuable cargo on board the Port Nicholson,
then yes.
Q. Did you ever believe that there was valuable cargo
on the Port Nicholson?
A. At one time we thought it may have been a
possibility, but further research has shown that
there is none.
Q. When was it that you thought that there was a
possibility that there was valuable cargo on the
ship?
A. That would be quite some time ago, in the early
days of the case.
Q. And was that based on — well, start over.
What was the basis for that thinking, that
there might be valuable cargo on the vessel?
A. I would have to say it was hearsay and the
possibility that after so long some records have
obviously gone missing. We are aware that some
valuables — some valuable cargoes were carried on
merchant ships during wartime; but we found
nothing to suggest that the Port Nicholson was one
of those vessels.
Q. But you’d agree that in general there were cargo
ships that carried valuables during World War II?
A. Yes.
Q. And sometimes the records relating to those
valuables went missing. Is that fair to say?
A. After such a long period of time, yes.
Q. So at this point you haven’t seen any documents
that satisfy you that there was valuable cargo on
the Port Nicholson. Is that fair to say?
A. Yes.
Q. And it may be that there were such documents, but
they’re missing now. Is that fair to say?
A. It’s a possibility.
Q. Did the UK ever rely on any documents produced by
Sea Hunters?
A. No.
Q. And you’d agree with me that the UK made the
decision to become involved in this litigation?
A. In order to preserve the government’s interest in
the Port Nicholson, yes.
Q. Nobody forced you to get involved in this case,
correct?
A. Correct.
Q. Has your department done any investigation
concerning the provenience of any documents
produced by Sea Hunters?
A. Yes.
Q. And what did that investigation consist of?
A. The investigation of the US Archives.
Q. And when was that?
A. That would have been during 2012.
Q. And was that investigation done by — I keep
forgetting his name — Comandi?
A. Mr. Constandi.
Q. Constandi. And did he file a report concerning
his investigation?
A. Yes. I believe he did.
Q. Have you seen that report?
A. I don’t recall it.
Q. What’s your understanding of what the report said?
A. That no comparable documents could be found
relating to the Port Nicholson.
Q. In the US National Archives?
A. I believe so, yes.
Q. Do you know whether he looked anywhere else?
A. I don’t recall.
Q. Did the government do anything else to investigate
authenticity of any documents?
A. I don’t know.
Q. Do you have any other correspondence pertaining to
research concerning the government’s payment for
the loss of the SS Port Nicholson?
A. I don’t recall any.
Q. Do you have any correspondence pertaining to
research into the department’s claim of ownership
of the cargo?
A. I have discussed the matter with archivists at
both the Bank of England and HSBC.
Q. And are there letters back and forth with —
between you and these archivists?
A. With HSBC archives, no. It was a phone
conversation. With the Bank of England I have an
e-mail from the chief archivist stating that they
have no information regarding the Port Nicholson.
Q. Do you have any other e-mails between you and any
other archivists or any other investigators?
A. No.
Q. What is the department’s goal in this litigation?
A. We’d like to see an end to the case.
Q. So your goal is just to make this case go away?
A. Perhaps I should rephrase that. We want to see
any claims against the Port Nicholson withdrawn.
Q. And why is THAT?
A. The vessel is owned by the UK government, and as
such we are responsible for it. We do not believe
any claims of valuable cargo being on board.
Therefore, we wish to stop any unauthorized
salvage operations.
Q. Does the UK have any plans at all for the salvage
of the vessel?
A. No.
Q. Or for salvage of the cargo?
A. There is no salvageable cargo there.
Q. And you’re basing that on your inability to find
documents relating to the cargo and the vessel
other than the documents that we discussed today?
A. We have not found any evidence to suggest that
there is a valuable cargo on board the Port
Nicholson at the time it was sunk.
Q. Has anybody told you that there isn’t valuable
cargo on the vessel?
A. I’m sorry. I don’t quite understand the question.
Q. Have you talked to anybody with knowledge of
whether there’s valuable cargo on the vessel?
A. There is no valuable cargo on the vessel. That’s
what we believe.
Q. No, I know. I’m asking you if you’ve talked to
anybody who has knowledge of whether there’s
valuable cargo on the vessel or not.
A. Everyone we’ve talked to is of the opinion
that there is no valuable cargo on board the
vessel.
Q. And who is everyone?
A. That would be the archivists of the Bank of
England and the HSBC and the archivists of the
Lloyd’s records of the Guildhall Library.
Q. Who is the archivist at the Bank of England that
you talked to?
A. That would be Sarah Millard.
Q. And did she specifically tell you that there’s no
valuable cargo on the Port Nicholson?
A. She told me they have no records to indicate
|that the Port Nicholson was carrying valuable
cargo.
Q. Did she have any records about the Port Nicholson
cargo at all?
A. No.
Q. And who is the archivist at HSBC?
A. I can’t recall.
Q. But you talked to that person?
A. Yes.
Q. And did that person tell you that they didn’t have
any records relating to the cargo of the Port
Nicholson?
A. They told me they had no records concerning the
Port Nicholson.
Q. And you say you talked to the archivist for the
Lloyd’s records?
A. Yes.
Q. And who is that?
A. I don’t recall.
Q. Was that somebody who worked for Lloyd’s?
A. No. It was somebody who worked for the Guildhall
Library.
Q. And what specifically did the librarian at
Guildhall tell you?
A. That the only records they had on the Port
Nicholson were those that we’ve already seen, the
index cards and the shipping losses.
Q. So isn’t it fair to say that at this point you
don’t have any records that — that confirm
whether there’s valuable cargo on the vessel;
and you don’t have any records that conclusively
prove that there wasn’t valuable cargo on the
vessel?
A. There would be no records to conclusively prove
there was no valuable cargo. There are records to
show that it was carrying 1,600 tons of automobile
parts and 4,000 tons of government stores. There
are also records to show that it was carrying
calcium of carbide and plywood.
Q. Isn’t the best way to find out whether there’s
valuable cargo on the vessel to actually go into
the ship?
A. I wouldn’t say that was the best way.
Q. Well, isn’t that the only way it can be
conclusively proven whether there’s valuable cargo
or not?
A. It would be one way, yes.
Q. What would the other way be?
A. Diligent research.
Q. Well, the diligent research is inconclusive, isn’t
it?
A. I don’t believe so.
Q. Okay. So it’s your contention that if there was
valuable cargo on the ship, you would have found
it?
A. No.
Q. So you’re saying that there may be valuable cargo,
but you just haven’t found it, correct?
A. No. I’m saying that nothing that we’ve found so
far suggests that there is a valuable cargo.
Q. Right. So so far you haven’t been able to
conclusively establish that there is or isn’t
valuable cargo on the vessel. Is that fair to
say?
A. It’s our opinion that there is no valuable cargo
on the vessel.
Q. That’s just your opinion, correct?
A. It’s the opinion of myself and our experts, yes.
MR. TINKLE: All right. Thank you. I don’t
have anything further.
EXAMINATION
BY MR. HOLBROOK:
Q. Sir, I’m Seth Holbrook. I represent Mission
Recovery, and I’m going to ask you some questions;
and they will sort of — I’m going to bounce
around a little bit to kind of cover some areas
that Mr. Tinkle previously asked you about. So
forgive me if I move around a little bit on my
topics, but I have some areas that I want to just
go over with you.
First of all, what is the name of the company
that — that you — your department uses primarily
for research?
A. I’m sorry. We have no company we use for
research.
Q. So when you want to look at — you want to look at
archives, is there one particular person or — or
operation that you go to?
A. No.
Q. How —
A. We —
Q. Go ahead.
A. Sorry. We carry out research ourselves.
Q. Okay. But I think there’s been some testimony
yesterday and today that you at some point hired
people to do some research for you.
A. Sorry. I thought you were speaking generally.
Q. Okay. Generally — okay. Generally you prefer to
do it yourself, but sometimes you hire somebody?
A. In this particular case, yes. We can’t
investigate archives in the US ourselves.
Q. All right. So other than this Constandi, did you
hire anyone — and by you, I’m saying you and your
department — did you hire anyone else besides him
for work in the United States?
A. No.
Q. All right. And in the — in England itself, did
you for the Port Nicholson hire anyone?
A. No.
Q. So what about a company named Westmoreland or
Westmoreland?
MR. SHUSTA: That’s Mr. Constandi.
Q. Is that Mr. Constandi’s company?
A. I don’t know.
MR. SHUSTA: I can tell you it is.
Q. All right. Well, your attorney — you heard Tim,
right?
A. That’s right.
Q. Okay. Did you ever instruct Mr. Constandi to stop
researching this issue?
MR. SHUSTA: Well, to be clear, Mr. Holbrook,
Mr. Constandi was retained by counsel. So Mr.
Cousins hasn’t given him any instructions, just so
you know.
MR. Holbrook: Okay. Well, I don’t know.
I’m not — I don’t know. That’s why I’m asking
about it.
MR. SHUSTA: He testified yesterday that Mr.
Constandi was retained by counsel on their behalf.
Q. All right. So he would — this guy, Constandi,
and his company is somebody that your counsel
retained?
A. That’s correct, yes.
Q. All right. And have you — have you worked with
Constandi directly on this; or has it only been
through counsel?
A. Only through counsel.
Q. All right. And have you seen any communications
from Constandi?
A. Again, only what’s been given by our counsel.
Q. So other than the information that’s been given by
counsel, do you have any other information about
instructions to Constandi one way or the other?
A. No.
Q. Do you know anyone else at his — at his office?
A. No.
Q. Are you aware of an individual named Kent who had
some kind of interest in this vessel?
A. Yes.
Q. And who is he?
A. Mr. Kent is an associate of Mr. Bradman.
Q. Okay. And did you have any communications with
Mr. Kent?
A. I was called on occasions by Mr. Kent, yes.
Q. Okay. And what were the nature of those
conversations?
A. Mr. Kent wanted to start negotiations regarding
the Port Nicholson. I refused to comment on it,
and I directed him and Mr. Bradman to confer with
our legal attorneys in the US and not to come to
me directly.
Q. Now, are you familiar with a term platinum matte,
M A T T E?
A. Yes, I am.
Q. And what is your understanding of that?
A. It’s a patent — sorry. It’s ore containing
platinum and other minerals and materials. It’s
an early stage of the refining process of
platinum. It’s basically — it looks like rocks.
It doesn’t look like platinum. It has to go
through a lot of smelting processes before it
actually becomes pure platinum.
Q. And that’s — so it is — effectively it’s
unrefined platinum?
A. Yes, very unrefined.
Q. Okay. Have you seen the term platinum matte in
any of the documents that you’ve reviewed or come
across regarding the Port Nicholson?
A. No.
Q. When did you — when have you seen this — this
term platinum matte referred to?
A. In other lists of cargo from vessels that we own.
Q. Other merchant ships?
A. Other merchant ships, yes.
Q. Okay. But not — you’ve seen nothing or heard
nothing about platinum matte on the — with
regards to the Port Nicholson. Is that correct?
A. That’s correct.
Q. Okay. And what about on prior voyages of the Port
Nicholson?
A. I don’t recall.
Q. So other than what we — just so I understand
correctly, you have no information about platinum
matte at all on the Port Nicholson, correct?
A. That’s correct.
Q. Okay. Would you agree with me, sir, that around
the time of the Second World War that New York
City, New York was a center for precious metal
trading?
A. I have heard something to that effect, yes.
Q. Do you have any information as to why the Port
Nicholson was going to New York?
A. No.
Q. Okay. So I think we’re in agreement that the
vessel was in Halifax and took on cargo in
Halifax, correct?
A. Yes.
Q. And that the destination of the vessel was —
ultimately was to New Zealand?
A. Yes.
Q. Have you obtained any information as to why the
vessel went — was going into New York as opposed
to continuing down the east coast?
A. No.
Q. Do you have any information about the vessel
originally planning to go into the Port of Boston?
A. No.
Q. Other than what you’ve told us today and
yesterday, do you have any information at all
about the vessel’s plans after it left Halifax?
A. No, only that its ultimate destination was New
Zealand.
Q. Do you have any information either from the
archives or your general familiarity with ships
operations as to why it was that the automobile or
truck parts were loaded at Halifax?
A. No, only that during the war Canada supplied a lot
of automobile parts for the British and
Commonwealth forces.
Q. Was there manufacturing of those kinds of parts in
Canada?
A. Yes, there was.
Q. And is your experience that Halifax was a loading
port for such parts?
A. Halifax was a major port at that time, yes.
Q. Did you come across any kind of archival records
or any kind of other records in your office — and
by your office I mean, you know, the Department
for Transport, not just Rob Cousins’ office —
about the reason for the ship going to New York?
A. No.
Q. Did Mr. Constandi ever provide any information to
you about platinum matte?
A. I don’t recall anything.
Q. Have you seen or reviewed any materials that refer
to mining companies that provided platinum matte?
A. I’ve seen documents in our files regarding
platinum matte that was carried on other vessels.
Q. But your testimony is you’ve seen nothing with
regards to that or heard nothing with regards to
that on the Port Nicholson, correct?
A. That’s correct.
Q. Now, if I understand your testimony from the
questions that Mr. Tinkle asked, you’ve seen
nothing that refers to any gold being carried on
the Port Nicholson; is that correct?
A. That’s correct.
Q. Is it fair to say that you’re the person at the
DfT that’s in charge of the Port Nicholson issue?
A. I’m responsible for administration of the — all
the DfT war records.
Q. And I think you said that you had another person
that worked with you that, had similar authority.
A. I believe that was in response to a question were
there any other contingency planners —
Q. All right.
A. — in my department.
Q. But he doesn’t — the other person, he or she,
they don’t have anything — that person doesn’t —
A. No.
Q. — have anything to do with wrecks?
A. No, that’s correct.
Q. Okay. So you’re the guy.
A. Essentially, yes.
Q. I mean, obviously you have superiors; and
obviously you have people that help you. But
you’re the — you’re the person in the DfT that
has the knowledge about the wrecks, right?
A. Yes.
Q. All right.
A. Sorry. My chairs aren’t as comfortable as yours.
Q. Have you directed any of the people in your
department or anybody working on behalf of your
department to — to stop researching this — this
question about the Port Nicholson?
A. To stop researching?
Q. Yes.
A. No.
Q. Generally in World War II if a ship was on
government — had been requisitioned by the
government for carrying government cargoes, would
that be stated on some document?
A. As a rule all British merchant ships sunk by enemy
action during World War I and II because of the
War Risk Insurance Acts, on their sinking, if the
government repaid the insurers, then the
government then became the owners of those
vessels. So we regard anything sunk by enemy
action as being the property of the UK government.
Q. Right. I understand that, but my question is a
little — is a little different. What I’m trying
to find out is generally in World War II if a ship
was — the term requisitioned has been used here.
And I understand that to mean that the ship is —
instead of being a private vessel has been
directed by the government of the UK to carry
cargo for the government — the benefit of the
government and the military. Can we agree on
that?
A. Yes.
Q. Okay. So my question is if a vessel has been
requisitioned during the World War II time frame,
is there some document that would — would state
that?
A. There probably was, yes.
Q. Do you have any information about what kind of
document that would be?
A. Well, there would have been the charter, as I
said, the T99 or 99A, which would have referred to
the actual vessel as being chartered.
Q. What does T99 or 99A mean?
A. I don’t know. That was just he reference number
for the document. I don’t know what it meant.
Q. Okay. Are you saying that the — that the
requisition would have been in the form of a — a
charter by the vessel owner to the UK government?
A. Essentially, yes.
Q. Is there — again what I’m trying to understand is
was it always a charter party; or were — was
there some kind of direct order from the
government about the ship having to carry
government cargo?
A. As I understand, normal commercial practices were
carried out as long as possible and as much as
possible during wartime. Therefore, although the
government effectively requisitioned the vessel,
it still operated by its owners under a charter
party which would have been either the same or
similar to the normal commercial documents and
charter.
Q. And — and you’re not aware of any particular —
seeing or knowing of the existence of any
particular charter party for this vessel, correct?
A. We’ve been unable to locate a copy of the actual
charter, yes.
Q. Have you been able to locate any bills of lading
or copies of bills of lading for the cargo on this
ship?
A. No.
Q. Okay. Have you tried to look for that?
A. Yes.
Q. What places have you tried to look for that?
A. In the National Archives in the UK.
Q. Is that where other bills of lading are kept?
A. Some of them, yes.
Q. For — for World War II freighters?
A. I believe so, but we never located any.
Q. For the Port Nicholson?
A. For the Port Nicholson.
Q. Okay. But if I went to the National Archives, I
could — with the assistance of somebody who could
point me in the right place, I could find bills of
lading for merchant ships in the World War II era?
A. Yes, I believe so.
Q. Is there a particular reason why they were kept
there?
A. It’s normal government practice after so many —
after a period to transfer records to the National
Archives.
Q. Have you done any — you or anyone on your behalf
done any research as to bills of lading that the
Port Line had for that period of time?
A. We asked for any documentation that the Liverpool
University Library held on the Port Line, if there
was anything relating to specific ships or
voyages, but they had none.
Q. You testified some — I think it was yesterday —
about the Liverpool and London P & I Club as being
the club that — the club that was for the Port
Nicholson? Do you remember that?
A. Yes, that’s correct.
Q. And that’s a protection and indemnity club,
correct?
A. Yes.
Q. Do I understand your testimony to be that they —
that that club set up a war risk cover?
A. They were one of the clubs involved, yes.
Q. But that’s for the protection and indemnity aspect
of the ship, correct?
A. No. It’s for war risks as well.
Q. Okay. But — all right. I’ll get to that.
Let me ask you first. Have you ever worked
in the marine insurance industry?
A. No.
Q. So we talked some yesterday about your education
and background. Have you gone back to any school
after your schooling that you talked about
yesterday?
A. Yes.
Q. What did you go back to school for?
A. For qualifications in politics and history.
Q. But along through your career, have you had any
kind of training, formal or informal, in the
marine insurance area?
A. No.
Q. What is your understanding of what the — the
kinds of cover that the war risk through the
Liverpool and London was for?
A. For all manner of war risks.
Q. Was it for the hull of the ship?
A. They would have covered hull and machinery.
Q. Through this war risk association? Do you
understand what I’m asking you?
A. Yes, I believe so. The protection and indemnity
societies, the war risk insurance clubs, provided
cover for all manner of war risks. That included
detention, other acts of social unrest, and actual
conflict.
Q. Okay. Well, what about the cargo on the — on the
ship? Do you know who handled the insurance for
the cargo owners on the vessel?
A. During wartime the P & I clubs handled — on
behalf of the Ministry of War Transport, they
dealt with the mechanics of the insurance. The
cargo insurance was slightly different in that the
War Risk Insurance Office dealt direct with the
claimants. The hull’s machinery, the ships
itself, would be reinsured through the P & I
clubs. Cargo would be directly insured by the War
Risk Insurance Office.
Q. Okay. So if somebody had a cargo policy for
something they were sending on the Port Nicholson,
that would have been during the time period we’re
talking about reinsured through this War Risk
Insurance Office?
A. Insured, not reinsured.
Q. Directly insured by that office then?
A. Yes.
Q. Okay. So is that why there are the payment
records showing what was paid out for the cargo?
A. That would have to be speculation on my part, I’m
afraid. I believe that the cargo records, the
claims were kept for the purposes of salvage after
the war.
Q. Do you know where those cargo records are?
A. Yes. I said that — I believe we’ve mentioned the
ledgers of the cargo claims are currently held by
the Admiralty archives.
Q. Okay. And that’s one of the documents that —
that Mr. Tinkle asked you about that refers to
the carbide of calcium and the plywood?
A. That’s —
Q. And I’ll show them. I’ve got — do you have the
exhibits that I — that we had sent over with
regards to what I provided yesterday?
A. Yes.
Q. And I think the one I’m referring to is 91, which
is the same —
MR. KAPLAN: His doesn’t have numbers on it.
Q. It’s a — it’s kind of like a ledger card that
it’s yellow and has Port Nicholson on the top.
A. Are you referring to the ones with 1942 on the top
right-hand corner?
Q. Yes.
A. Yes, I have those.
Q. Okay. So those are — those are records that
reflect payment as to cargo interests?
A. Well, the carbide of calcium, the plywood and the
personal effects, yes.
Q. And just so we’re clear, the — I have UK document
No. 127 and 128.
A. That’s correct, yes.
Q. Okay. There was some discussion I think yesterday
or maybe it was this morning about the
intelligence report on the sinking of the Port
Nicholson. Do you recall that?
A. Yes.
Q. All right. And can you look at that document?
I — I have it — the one that I had sent over
we referred to as No. 88; but I think that it
was marked yesterday when you were asked —
being asked questions by Mr. Tinkle. And I have
it as a — as a yellow document that’s one page,
and it has the UK number of 122 on it.
A. Yes, I have that.
Q. Okay. I just want to ask you some questions about
this.
Under Operations — okay, see the section
where it says Operations — excuse me — where it
says “Questions” down in the middle there?
A. Yes.
Q. Okay. And down in No. 2, it says the name of the
owners and the cargo. And to the right it says,
“Portline Lt’d.”
A. Yes.
Q. On the left side it says, “If on govt. service
the” — what is that word — “the fact” — is it
“the fact should be stated”?
A. Yes.
Q. Okay. But you would agree with me that on here it
doesn’t say that it was in government service,
correct?
A. That’s correct, yes.
Q. So that whoever filled this out, if it was on
government service, they should have put that in
there?
A. Yes. If they knew, they should have.
Q. Okay. And if it — so the fact that it’s not on
there, somebody reading this could reasonably
conclude that it wasn’t on government service,
correct?
A. If they weren’t aware of the facts, yes.
Q. Well, what other facts do you have beyond what’s
on this intelligence report?
A. We have the Service List which shows that the Port
Nicholson was on government service from the time
it was requisitioned until the time it sank.
Q. And that’s one of the —
A. It’s —
Q. Go ahead.
A. Sorry, please.
Q. Is that one of the documents that you’ve already
been asked about in this deposition?
A. Yes, it is.
Q. And as far as the cargo section that’s just
beneath that, what does it indicate is on there?
A. It says, “1600 tons of automobile parts (from
Halifax), and then handwritten underneath,
“(Destined for Australia).”
Q. Do you have any materials that would give basis to
a contention that — that these truck parts were
for the government of the United Kingdom?
A. I’m sorry. You mean for — destined for the
government of the United Kingdom?
Q. Right, or for the benefit of the United Kingdom.
A. They were automobile parts shipped during wartime.
I don’t believe there was any sort of commercial
automobile industry still working then.
Q. But other than your personal belief, do you have
any other information or documents about that?
A. I have done some research into it online to show
that there was no commercial automobile industry
operating during World War II and that the
automobile industry in Canada was working to
produce wartime equipment.
Q. So — and where it says on there Australia, I
think we can agree that that’s not correct, right?
A. That’s right, yes.
Q. Okay. And this — so where somebody handwrote
in there “(Destined for Australia)”, that’s an
error?
A. My belief is and the evidence we’ve seen is
that the voyage was actually due to end in New
Zealand.
MR. KAPLAN: Just out of curiosity, Seth, did
you mark these for the record?
MR. HOLBROOK: I will when we — I’m
referring to the numbers, and I’ll do that.
MR. KAPLAN: Oh, you’re referring to Bates
numbers?
MR. HOLBROOK: Yes.
MR. KAPLAN: Just so we’ll know what you’re
talking about.
MR. HOLBROOK: Yes, I will.
Q. I want to direct your attention to the — the
payment — the notes about the payments. And I
think that when Mr. Tinkle asked you about these,
these were the — from the ledger. I think that
your counsel that was with you yesterday,
Caroline, I think you said that she had gone and
interpreted those and written them on here. I
have it as my Exhibit 90 for today; but they show
the UK numbers of 092, 094, 096, 098 and 100. The
last page that’s got the UK number of 100 on it,
it shows a payment to the Undersecretary of State
of 200 pounds. I’m trying to understand how
that — do you know what that was for? Can you
tell what it’s for?
A. I believe I can, yes; but I don’t know what the
specific items were. But I believe that it would
be payment to a serviceman for personal effects
lost in the sinking of the Port Nicholson. That’s
why the payee would be the Undersecretary of State
for War, because the payment would be made from
the Ministry of War Transport to what was then the
Ministry for War, and they would have then repaid
the actual officer concerned.
Q. Okay. So that the payment — I think in one of
the records there was a reference to a — a
payment to the Commonwealth & Dominion Line of
168,000 pounds. Do you recall that?
A. Not specifically. If you mean the payments that
were listed in the Commonwealth & Dominion Line
Minute Book —
Q. Right, yes.
A. Yes.
Q. Okay. What is — do you have an understanding
what that was for?
A. That was payment — part-payment for the loss of
the Port Nicholson.
Q. For the vessel itself?
A. For the vessel itself.
Q. Going back to the — the payment cards for the
cargo, why is it that on — for instance, the
carbide of calcium, why was it that the payment
was made to the National Bank of New Zealand?
A. I don’t know. If you like, I could hazard a
guess; but again, it would be supposition on my
part.
Q. All right. Go ahead.
A. At that time it’s likely that many transactions
would be handled by the bank and that they would
have dealt with the owners of the calcium of
carbide who were bringing it into New Zealand; but
the bank would take on the responsibility of the
finance. In 1942 there may have been problems
regarding bank accounts and such like. Therefore,
the bank would have handled the transaction. But
again, that is supposition on my part based on
previous knowledge.
Q. All right. But you’d agree with me that the —
the documents that we’ve been talking about here
today, the payment — the payment cards
for — that show, for instance, the plywood that I
have as my Exhibit 91, the payments for what you
believe for the personal effects that are in my
Exhibit 90 and the — this Minute Book from the
Commonwealth & Dominion Line that’s my Exhibit 89,
none of them show any payments for the loss of
gold, correct?
A. Correct.
Q. And if — if there were — if there was cargo on
there that belonged to — well, for the benefit of
the British government, that would not be insured,
correct?
A. The government did not insure its own cargoes.
Q. I want to go back to the — to this Constandi
individual and his company, Westmoreland. Are
they — do you authorize them to give their
research to other people?
A. I’m sorry. We did not appoint them, and you would
have to discuss that with our counsel.
Q. So your — that Westmoreland Company is only
through your own attorneys?
A. Yes.
Q. Okay. And you — your office doesn’t provide that
research company with any instructions at all?
A. No.
Q. That’s correct?
A. That’s correct.
Q. There were some questions by Mr. Tinkle about when
your office enters into salvage agreements on
British — British ships sunk during the war. Are
you the person — generally speaking, is it your
department that handles that?
A. Yes, it is.
Q. Is it you that handles it?
A. Generally, yes.
Q. Okay. I mean, you — like we said before,
you have superiors, and you have assistants;
but you’re the person that is in charge of
that?
A. Yes.
Q. Okay. And so generally speaking, I think you used
the term protocol. There is some kind of system
or setup in place for when a salvor wants to
perform salvage on what’s believed to be a British
ship?
A. Yes. There’s an established procedure.
Q. Is that written down somewhere?
A. Yes.
Q. Where could I go to find that?
A. You could ask me.
Q. Okay. So where would I go find it?
A. Department for Transport at my address.
Q. All right. So I would write to you and ask for
the procedure?
A. Yes.
Q. I’m not — I don’t pretend to be familiar with how
the British government works; but if it was in the
United States, there would be some way that I
could go and look this up. Is there a way to go
and look this up for somebody that would like to
find out about it?
A. At the moment, no.
Q. Okay. So it’s not something that’s published or
written down for public knowledge?
A. It’s not something — I’m sorry. It’s not
something that’s online and available without
coming to us first.
Q. All right. Well, could I go to a library in the
UK and look it up and find out where it’s
published?
A. No.
Q. Okay. So it’s something that’s written out, but
it’s in your office?
A. Yes.
Q. Okay. So it’s —
A. Available on request.
Q. — available on request through your office. But
it’s not something that’s available for public
research or public inspection, say, at a library
or through some kind of government publication
service?
A. No.
Q. That’s correct what I just said?
A. That’s correct.
Q. Okay. And there was some reference to the — to
an arrangement — there was some testimony about
an arrangement with the vessel called the
Gairsoppa. And if I — would you agree with me
that — again as just an example, that there is
also an agreement about a ship called the
Mantola?
A. Yes, that’s correct.
Q. I just have to go over my notes. Do you want to
take a quick break to get a glass of water?
A. No, that’s okay.
Q. I’m almost done.
(Discussion off the record.)
MR. HOLBROOK: I don’t have anything else,
sir. Thank you.
MR. TINKLE: I just have four or five
follow-up questions.
EXAMINATION
BY MR. TINKLE:
Q. Would you agree that the historical record
concerning the Port Nicholson isn’t as complete as
you would like?
A. Yes.
Q. Among other things, you’re missing — or you
can’t find bills of lading, charter parties,
canceled checks, insurance policies, ledgers for
the payment of the actual vessel. Is that
correct?
A. We have the Commonwealth & Dominion Line Minute
Book showing payments were made for the loss of
the vessel.
Q. But you don’t have anything from the government
showing that, do you?
A. We believe that it shows that the government made
a payment in three stages for the loss of Port
Nicholson.
Q. But you would agree that there are records that
should be there but aren’t. Is that fair to
say?
A. Yes.
Q. And you indicated that the — the Gairsoppa, that
was a privately owned vessel?
A. Yes.
Q. And it was carrying silver bullion?
A. Yes.
Q. And that wasn’t unique, that a privately-owned
vessel would be carrying large amounts of silver
or gold bullion during the war, was it?
A. I don’t know. The Gairsoppa was on, again,
government service at the time it was sunk.
Q. And there were other vessels that were on
government service that were also carrying
bullion. Is that fair to say?
A. There may have been.
Q. And would it be reasonable that steps would
be taken to try to keep those — those shipments
of gold or silver bullion or platinum
confidential?
A. During wartime?
Q. During wartime.
A. Yes, I believe they would be.
Q. You wouldn’t want that information to get into the
hands of German spies, for example, would you?
A. No.
MR. TINKLE: Thank you. I don’t have any
other questions.
MR. SHUSTA: We don’t have any questions for
this witness. And if the deposition is
transcribed, we will read.
(The deposition was concluded at 12:55 P.M.)
– – – – – –
ROBERT T. COUSINS
Subscribed and sworn to before me
this day of 2014.
Notary Public