John Koon Acquiesces to Bill Trenkle’s Reports.

John responded quickly to our request for him to reconsider his report based on new evidence. He appeared to be genuinely willing to re-evaluate. Al was anxious to send him the files. Jill still didn’t trust him. His reports were too flawed and abusive for us to suddenly think he was a good guy. We had been advised by two attorney’s it wasn’t a good idea to “show him your hand”

However the more we discussed it, we determined that we didn’t really have anything to lose. If ProSight had wanted his opinion, they could have provided all the info to him. If he came back with negative input we didn’t have to share it. If he shared a negative opinion with ProSight, we’d proceed with a third “experts” review.

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So we compiled the reports from Bill Trenkle, the Load Test, and maintenance information (money spent and specific rigging purchases) and a picture of Al on the mast 10 days prior to the dismasting inspecting the diamond rigging.

We followed up with him a few times. His politely responded that there was a lot to consider and would talk with us soon. We didn’t think he was aware that the boat was left in the condition he saw in was because of Jill’s recent breast cancer diagnosis, which took them quickly away from the boat. He acknowledged and “empathized” the information.

We scheduled a couple phone calls, but he put us off. However, on Feb 7, he sent us the following email.

Hello Al,  Bill Trenkle is cced. 

I have reviewed the reports you sent in detail. 
You will note that I have attached my response to your rebuttal points on the original survey. I wonder if this was shared with Bill Trenkle in addition to the survey? This, in many ways, is more important reading than the original survey report. 
Reason being; No where in my report or response to rebuttal have I mentioned “un-seaworthy” 
 
It should also be noted that every theory I proposed was presented as just that, (theory). 
Also note, I was careful not to draw any specific conclusions as to the cause of your dismasting. I relied on terms as such, indications are, possibilities, probability, likely-hood, etc.
Nowhere in the report do I propose that I disagree with your description of the physical cause of the dismasting. Nowhere in the report do I state “actual cause” of the dismasting. I was careful to list, with explanations, the number of anomalies noted at the time Larry and I surveyed the vessel in Kona. Any of which could have contributed to the cause of the dismasting. Important note; it was stated in one of the documents that “Larry indicated that I did not access the anchor lockers” (incorrect) I crawled through the entire vessel. 
My impressions at the time of the survey were partially based on the apparent general condition of the vessel and the odd collection of hardware found on board. 
You have made a sincere effort Al, in explaining the “condition” we found the vessel in and I empathize with the situation you were in upon arrival in Hawaii. 
My quote in the survey, that “it was like conducting an autopsy with the body at the bottom of the ocean 900 miles away” was meant to clarify the reality of the impossibility of inconclusively determining the actual cause of the dismasting. 
It is noted on page 2 of Mr. Trenkle’s excellent report that “John Koon badly mischaracterized the condition of the vessel” In fairness, he attended the vessel 8 months after the dismasting ?!
In summary; 
I adhere to the “observations and presumptions” made at the time of my survey. And repeat, in no case was the term unseaworthy used in my report or the document attached to this email. 
I did carefully limit stating any opinion of the actual cause of the dismasting to listing the anomalies noted at the time of the survey and noted how anyone of them “may have” contributed to the actual cause! 
My observations of general condition were not “baseless” and were shared by Larry Montgomery and Gary Hoover (Kona based professional rigger) at the time of the survey. 
In defense of the insured, I will say that (providing the “Main Beam Load Test” in December of 2017 was accurately conducted and documented as stated in the un-authored report), I would be compelled to state that my “observations and theorized potential” of the main beam failing the rig could rightfully be proven incorrect. We could not conduct any such testing (which I am very familiar with) in May of 2016 in Kona. 
Other potential causes of dismasting proposed in my report can be empirically proven or dis-proven either way! 
Unfortunately, I do feel that a number of my observations and comments were taken out of context and in some cases I was misquoted in the defense of the insured’s case. More disheartening are some of the comments made challenging my integrity and professional experience in this realm. I don’t take this personally (part of the game I suppose) but feel it is fair to note in this context. 
respectfully “

 

We couldn’t believe it! John Koon was acquiescing to Bill Trenkle. He emphasized that he did not identify Dragonfly as unseaworthy, everything in his report were just theories and he did not disagree with Al’s description of the cause of the dismasting.

It was clearly obvious that a third party to “resolve the differences between the two experts” was not needed. They had no differences.

How could the claim be denied if both experts agree with Al’s description of the fortuitous event and that the vessel was seaworthy?

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Olive Branch – Seeking Shared Truth

Olive Branch - Seeking Shared TruthWe contacted Larry on Jan 14, 2017 and invited him to come on board to review the findings of Bill Trenkle with us and take the theft and damage claims. We were extending an olive branch to work together to determine what was the truth.

On Jan 16, Wayne Scott authorized him to come on board and told him to  “investigate and report to underwriters on all matters listed please.”

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Inspection of Areas and Items in Dispute

Larry came on board on Jan 17. He inspected, verbally confirmed and took pictures of the following and other areas:

  • Main beam – No stress cracks in the anchor lockers or in the berths where attached to the main beam. He admitted they did not get into the anchor locker during the June survey since there were lines and fenders in the lockers.
  • Forward beam – No movement of the forward beam brackets evident on the outside or inside. Larry acknowledged that the forward beam design allowed it to twist on the bracket when under load from the anchor.
  • Minor mast surround leak – was due to the salon roof flexing, not the main beam flexing.
  • Minor water leaks around the front windows was due to the curved designed of the surface, resulting in it being difficult to get a good seal. It had nothing to do with the beam flexing.
  • The remaining turnbuckles, were not stripped, in good condition and functional.

Larry wrote up the claims for the damage and theft which Al signed and told us that he would send all of this information to Wayne Scott.

Vindication!

We felt vindicated. Larry openly admitted that John Koon’s report, which he was involved with, was incorrect. He agreed one-by-one that each of major flaws portrayed in the report did NOT exist.

We thought this mess would soon be over. Finally, the truth would be shared.

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A Legitimate Survey

Bill Trenkle conducts a legitimate surveyBill Trenkle,  is a Accredited Marine Surveyor, with the Society of Accredited Marine Surveyors (SAMS); a Certified Marine Investigator (CMI), with the International Association of Marine Investigators (IAMI); and holds a Bachelor of Engineering degree in marine engineering, As a Marine Surveyor, a Marine Engineer and active offshore and America’s Cup sailing crew and project manager, Bill has personally been involved in the design, construction and maintenance of dozens of masts from 1976 to the present. Bill has raced in and won the Americas’ Cup in 1987 and 1988 and competed in 6 other America’s Cup campaigns and two Around the World Race campaigns, in management and technical roles, as well as sailing crew roles.

We felt confident that a legitimate report from an individual with his qualifications would convince ProSight, LJJ and Hill Dickinson that John Koon report was incorrect in his assertions and suppositions.

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Survey

Bill arrived to survey Dragonfly on January 11, 2017. Bill spent the day going over Dragonfly, testing and taking numerous pictures. He stated multiple times that Dragonfly showed no evidence of structural or rigging deficiencies which would have caused the dismasting.  Bill expressed his shock at the inaccuracies and baseless suppositions in the John Koon Report

Some of Bill’s statements in the survey are::

  • Mr. Koon’s conclusion that the mast step may have been deflecting “Yielding-failure of main beam in way of mast-compression path” causing the vessel to be compromised, causing the mast to fail was quickly observed by the undersigned be a completely unsupported statement.
  • There is no structural movement of the entire main crossbeam including where the mast step transfers load to the aft vertical shear web of the main crossbeam.
  • The vessel main crossbeam has a safety factor of 21:1. In other words, it is 21 times stronger than it needs to be to prevent failure, this is quite evident when you inspect the vessel. The size of the mast bulkhead, which is the aft shear web of the main crossbeam, is massive. The statement that this beam was deflecting and causing the mast step to deflect downward is not supported in any way from an engineering, boatbuilding, mast design, rigging or any other perspective.
  • Mr. Koon mistakenly interprets cracks in the mast surround and seating area as being related to structural movement of the main beam and mast step. These are only lightweight closeout structures that take no structural load, they are inherently flexible and tend to crack at the joints. This is what Mr. Koon saw and misinterpreted as structural movement.
  • In Mr Koon’s report he reports that the vessel was “in marginal condition in terms of general maintenance”. The majority of his observations are either cosmetic or are directly related to the loss. He has not taken to get into consideration the fact that the vessel had to motor 400 miles after already completing a significant journey. He does not take into account the damage to the vessel from the incident and mitigation efforts made by the vessel owners to get the vessel safely back to harbor, or the fact that clean up on the vessel has been halted until resolution of the claim so that no disruption of evidence can be claimed.
  • Mr. Koon questions the age of the rigging however the oldest rigging were the diamond stays which replaced in 2008. Seven and half years prior to the loss. The industry stand is 5-10 years. It should be noted that this vessel was laid up for 1⁄2 the year in Florida until 2013 and when used was not pushed hard and the actual miles are minimal.
  • Mr Koon’s comment that the operators had a lack of concern or understanding is not supported by anything in his report and in the opinion of the undersigned is a misrepresentation of the owner’s knowledge and concern regarding the rigging. Mr Wigginton is a University trained and highly experienced mechanical engineer who appears to the undersigned to have a better understanding of the engineering of the mast and structure of this vessel than Mr. Koon based on the comments in his report.
  • Rigging components, which had not been jettisoned at the time of this dismasting, were observed to be in good condition. Rigging age was well within industry replacement cycle standards based on the usage history of the vessel.

Dismasting

Over his career, Bill has personally experienced 13 dismastings, because his career has been in the racing industry. Based on his legitimate experience he agreed that only reason for the mast to have failed as it did was a rogue wave on the opposing side to the wind hitting the vessel. He states:

  • Disregarding all of Mr Koon’s unfounded remarks it is important to note that if the mast suffered a lower diamond failure the mast would have broken at the lower spreaders. If the upper diamond broke the mast would have broken at the upper spreaders. There is no evidence indicating that a rigging failure was the mode of failure.
  • Any dismasting caused by a rigging failure would have been completely different in nature; therefore a rigging failure can be completely dismissed as a cause of the loss.
  • It is the professional conclusion of the undersigned that the cause of loss is that the vessel suffered a large wave impact at the port bow. The momentum of the mast and force on the sails, when the boat was essentially stopped by the wave at full speed, overloaded the mast section at the lower tangs causing it to buckle and fail. This is not an unusual failure mode.

Well said!

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Go Nuclear to Prove our Justifiable Claim

Shooting missile.pngWe felt that we needed to get serious and pull together credible sources and information, which would force them to see that we had a justifiable claim. We needed to do the following as quickly as possible, realizing that during the holiday time would probably slow things down.

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To demonstrate a justifiable claim we needed to:

  • Clearly understand the different companies involved and their roles
  • Find an attorney or UK solicitor. Our policy states “in the UK and under English Law”. But needed to determine if someone was experienced in the US with cases like these. Qualifications needed to be:
    • English law
    • Marine knowledge
    • Lloyd’s of London experience
  • Find our own surveyor who would out shine John Koon and Larry Montgomery in knowledge.
  • Locate an individual who could confirm the reality of rogue waves against the opposing wind.
  • Provide proof that would demonstrate the strength of the beam and it’s inability to flex
  • Gather maintenance history
  • Acquire statements from the crew
  • Find a way show to a lay person, the forces on the mast for each of the theories thereby proving the rogue wave scenario and disproving John Koon’s theories.

Over the next two months we:

  • Got a loose understanding of a convoluted Lloyd’s insurance system. We bought a policy from a broker (Blue Water), who acquired a policy from LJJ Associates, who are brokers in the UK, who got ProSight 1011, a Lloyd’s of London syndicate, to underwriter the policy. ProSight’s underwriters were making the decisions.
  • Hired a UK Solicitor Daniel Crockford. He specialized in marine cases and had sailing experience, so understood the situation.
  • Bill Trenkle a NAMS surveyor and international marine investigator. He also worked for Dennis Connor on the America’s cup and had in-depth knowledge of catamarans. We scheduled him to come onboard Dragonfly Jan 11 to survey her and address the supposed structural problems.
  • Contracted with Mike Lenneman, an oceanographer, catamaran and mast builder to explain the rogue waves and his personal experience with a similar dismasting.
  • Met with Jay Butler an America’s cup rigger to inspect the remaining rigging and attest to its good and functional condition.
  • Requested Kurt Hughes, the designer of Dragonfly and the mast to address the beam flexing, mast compression and tri-pod rig.
  • Compiled annual expense reports demonstrating the more than adequate maintenance done annual.
  • Acquired statements via questionnaires from each of the crew
  • Proved that the age of the rigging fell within all guidelines specified including ones that John Koon was involved in developing for the Coast Guard.
  • Acquired the Coast Guard logs and explained how a Mayday is not appropriate unless life is at risk.
  • Compiled the trip log to the extent that we could from our navigation software.
  • Made drawings showing the forces of the different scenarios.
  • Responded to the accusations and theories made by the solicitor from Hill Dickinson

The data we developed, accumulated and organized filled a 3″ binder. Daniel Crockford, our UK solicitor it reviewed and submitted it to Hill Dickinson.

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