While a dumb, unmanned barge was riding out a storm at Dover following delivery of its shipment of cargo and having been left there by its tug, its anchor damaged an underwater electricity cable. The owners of the cable (the second defendant) brought a claim for damages in the Danish courts against the barge’s registered owner (the first claimant), the barge’s charterer and operator (the second claimant), and a company that placed men on board with instructions to operate the barge’s machinery whilst it was at anchor off Dover (the fourth claimant). The first, second and fourth claimants brought, inter alia, a limitation action in which they sought to limit their liability to the second defendant. It was accepted that the first and second claimants were entitled to limit their liability pursuant to the Convention on Limitation of Liability for Maritime Claims 1976, scheduled to the Merchant Shipping Act 1995, respectively as “owner” and “operator” within article 1(2). A question arose as to whether the fourth claimant was within the class of persons entitled to limit its alleged liability pursuant to article 2(1)(a) of that Convention, and specifically whether it fell within the phrase “manager [or] operator of a seagoing ship” in article 1(2).
On the claim—
Held, claim allowed. The meaning of “manager … of a seagoing ship” in article 1(2) of the Convention on Limitation of Liability for Maritime Claims 1976 had to reflect the present role of manager, who was a person entrusted by the owner with the duty of devising and maintaining a safety management system to ensure the safe operation of the vessel and the prevention of pollution, crewing the vessel with appropriately qualified and trained personnel, maintaining the vessel, finding employment for her and preparing her for trading, be it one or more directors or senior personal, a separate company within the same corporate group as the owner, or an independent third party company offering a management service. A manager was responsible for those safety, manning, technical and commercial tasks contracted out by the owner to the manager. Accordingly, the “manager … of a seagoing ship” for the purposes of article 1(2) was the person entrusted by the owner with sufficient of the tasks involved in ensuring that a vessel was safely operated, properly manned, properly maintained and profitably employed to justify describing that person as the manager of the ship. The ordinary meaning of “operator of a seagoing ship” included the “manager”, and in some cases there might be little scope for “operator” to have any wider meaning than that of “manager”. However, whilst, by reason of the wording of article 1(4) of the Convention, it could not have been intended that the master and crew of a vessel be the operator within the meaning of article 1(2) and therefore “operator of a seagoing ship” could not have been intended to cover those on board the vessel physically operating the vessel’s machinery, those who caused an unmanned ship to be physically operated had some management and control over the ship and if, with the owner’s permission, they sent their employees on board the ship with instructions to operate the ship’s machinery in the ordinary course of the ship’s business, they could be said to be the operator of the ship even if they might not be its manager. Such a construction was also consistent with the object and purpose of the Convention, to encourage the provision of international trade by way of sea carriage. Furthermore, article 1(2) allowed for more than one operator. On the evidence, the second claimant had been the sole operator of the barge until it arrived under tow off Dover. However, during the time that the barge was at anchor off Dover, the second claimant had no real involvement with the barge. Only personnel of the fourth claimant were on board, and they performed activities to anchor and secure the barge for the benefit of the barge’s owner. Those activities amounted to operation of the barge, despite the absence of a formal contract between the fourth claimant and the first and/or second claimants, since they were part of the same group of companies and accustomed to working in that way and since the fourth claimant clearly acted as it did with the owner’s permission. It also did not matter that the fourth claimant’s role was limited both in time and in scope. The fourth claimant’s operation of the barge off Dover was such as to make it appropriate to describe it as the operator of the barge off Dover at the relevant, limited time and it was therefore entitled to limit its alleged liability (paras 61, 62–63, 64, 74, 79, 81–82, 83, 94, 99, 101, 109, 110, 113, 116, 118, 120, 121, 122).
John Passmore QC (instructed by Campbell Johnston Clark Ltd) for the claimants.
Chirag Karia QC (instructed by HFW llp) for the second defendant.