THE
FACTS
The
Plaintiffs have made a claim against the Defendants in negligence and breach of
contract arising out of the preparation of the "Von Rocks" by the Defendants
for towage by the Plaintiffs from Sweden to Scotland in 1994. Under the terms
of the towage contract between the parties the High Court of Justice of England
and Wales has jurisdiction to hear and to determine the claims in question.
The
Plaintiffs' claim in it's action in this jurisdiction is for an order for the
arrest of the "Von Rocks", which is presently in Irish territorial waters,
under the Jurisdiction of Courts (Maritime Convention) Act, 1989 and/or the
Jurisdiction of Courts and Enforcement of Judgments Act, 1993. It is claimed
that the court ought to assume jurisdiction for that purpose pursuant to
Article 2 of the International Convention on the Arrest of Sea Going Ships
signed at Brussels on 10th May, 1952 and/or on foot of Article 24 of the Lugano
Convention, 1988.
Pursuant
to an application made ex-parte on behalf of the Plaintiffs, the court by order
made on 14 November, 1996 directed the Admiralty Marshal to arrest the "Von
Rocks" and keep it under safe arrest. The Marshal duly complied with the order
and the "Von Rocks" remains under arrest, though by subsequent order of the
court made on consent of all parties, it is permitted to continue working as a
dredger on contract in Malahide estuary, Co Dublin.
The
nature and purpose of the "Von Rocks" is not in dispute. It is a type of
maritime dredger, called a backhoe dredger which is primarily used in harbours,
channels or estuaries to deepen the waters at such locations. When not in
operation, it is a floating platform comprising ten individual pontoons bolted
together. When in use, it is held in position on the seabed by three spud legs
which are capable of being hydraulically lowered and raised. When the legs are
lowered to the seabed at the site of dredging the platform becomes a rigid
structure ie, it is jacked-up to form a rigid platform and will so remain until
the legs are withdrawn and the structure floats again.
An
excavator is bolted to one end of the platform and is used to excavate spoil
from the seabed which in turn is poured into an adjacent barge and taken away
from time to time. A backhoe dredger has no bow, no stern, no anchors, no
rudder or any means for steering, and no keel or skeg. It has no means of
self-propulsion, mechanical or otherwise, and it has no wheelhouse. One end is
rounded to facilitate the operation of the dredger. It has a lighting tower to
illuminate the deck and to warn passing vessels of it's presence. It has a
steel cabin fixed on the platform which contains an office and a toilet. It
does not have an ability to carry cargo, spoil or personnel other than those
engaged in the dredging operation. While at work it dredges within the radius
of the excavator arm. When all spoil within range of the dredger is removed,
the spud legs are raised and the dredger is towed forward for a few meters and
the legs are repositioned as before. The progress of the dredging operation
continues in that way. On completion of a contract, there are two methods
whereby a backhoe dredger may be moved to the site of it's next engagement. It
may be dismantled and transported by road or, alternatively, towed by sea.
Extensive preparations are required to make it seaworthy for towing for any
significant distance. When under tow from one contract site to another the
dredger is unmanned and plays no part in the performance of the operation. It
is merely an inert object being towed by a power-driven vessel. There are other
types of dredging barges in common use but they differ from a backhoe dredger
in that, although having no means of self-propulsion, they do have rudders and
wheelhouses. They carry spoil and usually require some crew on board when being
towed from place to place.
THE
ISSUE
The
Defendants, as owners of the craft, have challenged the validity of the arrest
of the "Von Rocks" on the ground, inter alia, that it is not a ship within the
meaning of relevant legislation. They have brought a motion seeking the
following reliefs
(i)
An order directing the release of the "Von Rocks" and
(ii)
an order setting aside the warrant of arrest.
The
issue before the court is, therefore, whether a backhoe dredger, such as the
"Von Rocks", is a "ship" for the purposes of
Section 13(2) of the
Jurisdiction
of Courts (Maritime Conventions) Act, 1989 (the 1989 Act) and, therefore,
amenable to arrest in respect of a maritime claim against it's owners.
THE
LAW
The
Plaintiffs, in obtaining a warrant for the arrest of the "Von Rocks", have
relied on the jurisdiction conferred on this court by the 1989 Act which gives
effect in Irish law to the 1952 Brussels Convention on the Arrest of Sea Going
Ships (the Arrest Convention).
Article
2 of the Arrest Convention provides that:-
"A
ship flying the flag of one of the Contracting States may be arrested in the
jurisdiction of any of the contracting states in respect of any maritime claim
. . ."
It
follows from that provision that the jurisdiction to arrest is confined to a
"ship". In
Section 13(2) of the 1989 Act that term is defined as follows:-
"'Ship'
includes every description of vessel used in navigation".
The
term "vessel" is defined in the same subsection as follows:-
"'Vessel'
includes any ship or boat, or any other description of vessel used in
navigation."
The
latter definition is similar to that found in
Section 742 of the
Merchant
Shipping Act, 1894, and in the Merchant Marine Act, 1955 save for the words
"not propelled by oars".
These
definitions, which have had continuous existence in admiralty law in this
jurisdiction from 1894, have two common features. First, the definitions of
"ship" and "vessel" are inclusive and non-exhaustive. The 1989 Act and it's
predecessors do not purport to lay down a universal definition of what
constitutes a ship or vessel. A person or body which makes a maritime claim
against a ship owner is, for practical reasons, provided in admiralty law with
a potentially far-reaching weapon, not found in other aspects of the common
law, against the alleged debtor ie the prima facie right to obtain an arrest
warrant detaining a ship and/or cargo belonging to the latter. The primary
objective of such a warrant is to provide the claimant of a maritime debt with
a form of security, being the value of the debtor's interest in the ship and/or
cargo (or a bond for the sum claimed), for the recovery of the amount of the
judgment which may be obtained in that regard and which otherwise might not be
recoverable from the ship owner. The arrest of the ship may have far-reaching
consequences for the alleged debtor through interference with his business by
immobilisation of his vessel after arrest. It follows that there is a strong
onus on the person seeking to exercise that remedy to establish that the craft
to be arrested is in fact a ship or vessel as defined in the 1989 Act and
Arrest Convention. Having regard to the implications of arrest for the ship
owner, the onus on the plaintiff is substantial and must be clearly discharged.
In short, where it is argued on behalf of a plaintiff that the parameters of
what is within the statutory concept of a ship should be extended, the court,
in the light of the potentially far-reaching consequences of arrest for the
ship-owner, should be cautious in extending the definition of what is a ship in
the context of the Jurisdiction of the Courts (Maritime Conventions) Act 1989
and the Arrest Convention. In modern times there have been many developments in
the area of maritime machinery, both on land and on water. Floating cranes and
the like used in or adjacent to ports, harbours, or anchorages are far removed
from the popular concept of ships and in defining such objects, not hither-to
the subject of judicial definition, I am of opinion that the court should be
satisfied by cogent, coercive evidence before deciding that they are ships
within the meaning of the relevant legislation.
The
second common bond in the legislative definitions of "ship" and "vessel" to
which I have referred is that the ship, boat or vessel must be "used in
navigation". The authorities make it clear that this does not imply that a
floating object to be a "ship" or "vessel", as envisaged in the 1989 Act and
earlier statutes, must be capable of self navigation. It is well established
that, for example, many types of barge, or similar vessels, though incapable of
self-propulsion are "ships" within the meaning of the foregoing statutes.
Whether a craft is a ship or vessel for statute depends on the facts of each
case. Most of the relevant judicial authorities are conveniently summarised in
the following passage from Halsbury's Laws of England, Vol 43, 4 edition, para
91:-
".
. . Whether a craft comes within the foregoing meaning of a ship depends on the
facts of each case; the statutory definitions are intended to enlarge the
meaning of 'ship'. To be a ship, a vessel must be used in navigable waters,
either inland or at sea, and although she must be constructed for navigation it
is not necessary to the definition that she should be able to navigate under
her own power. The presence of a rudder and the manning of the vessel by the
crew are important as showing that a vessel is a ship, but the absence of
either does not mean that a vessel is not a ship. The purpose for which a
vessel has been and is being used is also material when considering whether she
is used in navigation".
A
backhoe dredger is not "constructed for navigation" as postulated in Halsbury.
It's nature and construction when in operation is that of a rigid platform to
which dredging machinery is attached.
In
my view when considering whether a particular craft is a ship or vessel within
the meaning of the foregoing Acts, the court should look primarily to the basic
nature and purpose of the structure when in operation. A rigid dredging
platform secured to the seabed by substantial hydraulic legs approximately 22
meters high and 1.2 meters square (see paragraph 1(b) of the affidavit of Peter
Southern, marine surveyor, filed on behalf of the plaintiffs) has no capacity
for movement and is clearly not a ship or vessel when set up for work. In
course of it's operation it does become a floating object temporarily when the
legs are raised and it is towed a few meters forward after it has removed all
spoil from a given area within range of the dredging arm. I am satisfied that
negligible movements of that sort cannot reasonably be regarded as "used in
navigation". Likewise the towage of the craft by sea for substantial distances
from contract site to contract site does not constitute use of the craft in
navigation as postulated by the statutes. It is unmanned; has no capacity for
self-propulsion and has no rudder or any form of steering mechanism. An object
under tow which takes no part in the towing operation per se cannot reasonably
be regarded as being "used in navigation". In my view that phrase necessarily
implies some element of participation in the towing operation. In fact the
towing of a backhoe dredger would seem to be essentially similar to the towing
of a fixed oil rig to or from it's drilling station. Such rigs are not ships.
Navigation
has been defined by Sheen J in Steedman v Scofield & Anor [1992] 2 Lloyd's
Rep 163 at 166 as follows:-
"Navigation
is the nautical art or science of conducting a ship from one place to another.
The navigator must be able to
(1)
determine the ship's position and
(2)
determine the future course or courses to be steered to reach the intended
destination . . .
To
my mind the phrase 'used in navigation' conveys the concept of transporting
persons or property by water to an intended destination . . . 'Navigation' is
not synonymous with movement on water. Navigation is planned or ordered
movement from one place to another. A jet ski is capable of movement in water
at very high speed under it's own power but it's purpose is not to go from one
place to another."
I
accept the conclusion of Sheen J that transporting persons or property by water
to an intended destination is a concept inherent in navigation. Sheen J also
refers to the navigator being able to determine the ship's position and the
future course to be steered to it's intended destination. The "Von Rocks" is
not capable of any of these requirements.
I
also adopt the following observation of Atkinson J in Polpen Shipping Co
Limited v Commercial Union Assurance Company Limited [1943] 1 AER 162 at 163.
Having referred to the definitions of "ship" and "vessel" in
Section 742 of the
Merchant Shipping Act, 1894 he stated that:-
"It
seems to me that the dominant idea is something which is 'used in navigation'
and not merely capable of navigating for the moment".
He
held that a ship or vessel is intended to do it's real work upon the seas or
other waters, and to be capable of free and ordered movement from one place to
another, whereas a flying-boat's real work is to fly, and it's ability to float
and navigate short distances is merely incidental to it's real purpose.
Applying that reasoning to the instant case it follows that even if the "Von
Rocks" were deemed to be capable of navigation when being towed for minute
distances in course of dredging, or while being towed by sea from site to site,
use in navigation at sea is not the real work of a backhoe dredger but is
merely incidental to it's primary purpose of being a rigid platform for
dredging. See also Merchants Marine Insurance Company Limited v North of
England Protecting and Indemnity Association; Court of Appeal [1926] 26 Lloyd's
Rep 201.
Other
judgments to which I have been referred regarding the definitions of ship and
vessel differ on their facts from those in the present case and, therefore, are
of no great assistance in determining the nature of a backhoe dredger.
There
is one other matter to which I have had regard in deciding that the "Von Rocks"
is not within the definitions of ship or vessel in the Merchant Shipping Acts
and the 1989 Act. In recent legislation the terms "ship" and "vessel" have been
given a significantly wider definition than in the foregoing Acts. In
Section
3(1) of the
Sea Pollution Act, 1991 it is stated that "ship" means a vessel of
any type whatsoever operating in the marine environment and includes hydrofoil
boats, air-cushion vehicles, submersibles, floating craft and fixed or floating
platforms and includes fixtures, fittings and equipment.
The
definition of "vessel" in
Section 2(1) of the Merchant Shipping (Salvage and
Wreck) Act, 1993 is as follows:-
"'Vessel'
means any ship or any water born craft whether self-propelled or not, or any
structure capable of navigation and includes
(a)
hydrofoil boats, air-cushioned vehicles, submersibles, floating craft,
and
(b)
subject to s 16, fixed or floating platforms and mobile drilling units,
together with the fixtures, fittings and equipment of any such vessel."
It
seems to me that these extended statutory definitions, which appear to capture
a backhoe dredger, indicates that the earlier definitions were not wide enough
to do so.
Finally,
it has been argued on behalf of the plaintiffs that even if it is held by the
court that a backhoe dredger is not a ship or vessel "used in navigation", it
should in all the circumstances be regarded as a ship within the meaning of the
relevant legislation. Reliance for this proposition is placed upon the
following passage from the judgment of Lord Coleridge CJ in "THE MAC" [1882] CA
555 at 557:-
"I
think the definition in the
Merchant Shipping Act is not exclusive but
inclusive and that it may include a good deal more than a vessel used in
navigation . . ."
I
do not interpret the foregoing passage as authority for Mr McDonald's
proposition. It seems to me that Lord Coleridge recognises that "used in
navigation" is a crucial part of the statutory definition of "ship" or
"vessel", but he has also indicated that the characteristics of a craft in a
particular case may go well beyond that particular requirement.
I
am also urged to attach some importance to the views expressed in affidavits
sworn by Dominic Daly, an auctioneer who has experience of maritime dredging
equipment including backhoe dredgers, and Seamus McLoughlin, from the
Department of the Marine. Mr Daly expresses the view that such dredgers are
normally registered as ships. It must be appreciated, however, that there are
commercial advantages in so doing, some of which he has referred to in his
affidavit, but that is far from establishing that such craft are ships.
Mr
Seamus McLoughin is deputy chief surveyor in the Department of the Marine. He
has deposed that backhoe dredgers are regarded as ships in his Department. This
is not of much assistance in my task of deciding whether the "Von Rocks" is a
ship or vessel within the meaning of the 1989 Act. I apprehend that the
Department may proceed on the premise that any craft or object at sea which
could possibly be regarded as a ship should be so regarded and registration
should be insisted upon under the Merchant Marine Act, 1955. This gives the
Department a substantial advantage in regulating the use of the equipment and
other related matters which otherwise it would not have. It is also helpful in
adding to the number of "ships" on the Irish Register of Shipping. It is of
interest that the plaintiffs' witness, Mr Southern, a marine surveyor of long
experience, has expressed no view on whether the "Von Rocks" is a ship.
For
the reasons which I have specified, I am satisfied that the "Von Rocks" is not
a ship within the meaning of the 1989 Act and the Arrest Convention. I order
that it should be released forthwith from arrest.
