Amoco (UK) Exploration Company v Frame
| Jurisdiction | Scotland |
| Judgment Date | 16 September 2008 |
| Neutral Citation | [2008] HCJAC 49 |
| Date | 16 September 2008 |
| Docket Number | No 8 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Osborne, Lord Carloway, Temporary Judge CGB Nicholson CBE, QC
Justiciary - Statutory offence - Spillage of diesel from offshore installation - Whether necessary to prove causal connection between specified operation and spillage - Whether statutory defence of reasonable care established - Prevention of Oil Pollution Act 1971 (cap 60), secs 3(1), 6(1)
Statutory interpretation - Construction of Prevention of Oil Pollution Act 1971 (cap 60), secs 3(1), 6(1)
Section 3(1) of the Prevention of Oil Pollution Act 1971 makes it an offence for oil to be discharged from a pipeline or "as the result of any operation for the exploration of the sea-bed and subsoil or the exploitation of their natural resources" (sec 3(1)(b)). Section 6(1) provides a defence for the operator or owner to prove that "neither the escape nor any delay in discovering it was due to any want of reasonable care and that as soon as practicable after it was discovered all reasonable steps were taken for stopping or reducing it."
The appellant company was the operator of an offshore installation. The installation had two tanks for storing diesel, which was used to run various generators and other equipment. In normal operation, one tank would be in use whilst the other served as a reserve. At the material time, the reserve tank ("the south tank") was being filled from an off-shore supply vessel whilst the other ("the north tank") was in use. Due to an inexplicable error on the part of an employee of a sub-contractor of the appellant, a valve had been opened during the filling of the south tank, which resulted in an overflow of diesel into the sea. In submissions before the sheriff and again before the High Court of Justiciary, the appellant argued that: (1) the terms of sec 3(1)(b) required proof of a causal connection between any discharge and a specified operation for the exploration of the sea bed. It was submitted that the Crown had neither established the specified operation set out in the complaint, namely "searching and boring for petroleum," nor any causal connection to the discharge; and (2) the statutory defence being one which could be established on the balance of probabilities and requiring a duty to take reasonable care in respect of risks which were reasonably foreseeable, the appellant had put in place all reasonable precautions and that the inexplicable error on the part of an employee had not been reasonably foreseeable. In response, the Crown argued that: (1) sec 3(1)(b) did not require proof of a causal connection between any discharge and a specified operation. Rather, it was submitted, the section created an absolute liability in the event of a discharge whenever operations for the exploration of the sea bed etc were being carried on, as had been established here; and (2) accepting that the statutory defence was one which could be established on the balance of probabilities and requiring a duty to take reasonable care in respect of risks which were reasonably foreseeable, it had nonetheless been open to the sheriff to conclude that the statutory defence had not been made out.
Held that: (1) the interpretation of sec 3(1)(b) advanced by the Crown was to be preferred (para 23); all that was necessary for the commission of the offence, in the event of a discharge, was that an operator should have been shown to have fallen within the opening words of sec 3(1)(b) (para 24); (2) the sheriff had misdirected himself in concluding that the appellant had failed to establish the statutory defence (para 32) and appeal allowed and conviction quashed.
Observed that the duty of care in sec 6(1) was imposed solely on the operator (or owner) of the installation and did not extend to individual members of the crew; no question of vicarious liability arose (para 26).
Amoco (UK) Exploration Company was charged on summary complaint in the sheriffdom of Grampian, Highland and Islands, at the instance of Catherine Riddle Frame, procurator fiscal there, with a contravention of the Prevention of Oil Pollution Act 1971. The appellant went to trial before the sheriff (AS Jessop) in the sheriff court at Aberdeen on 10 June 2005. Evidence was led on that day and on a further six days throughout 2005, and the appellant was convicted on 2 December 2005. The sheriff imposed a fine of £25,000. The appellant appealed to the High Court of Justiciary by stated case. The cause called before the High Court of Justiciary, comprising Lord Osborne, Lord Johnston and Temporary Judge CGB Nicholson CBE, QC, for a hearing on 18 and 19 October 2007. The court having heard submissions in part, the cause was continued to dates to be afterwards fixed. 8 and 9 July 2008 were subsequently assigned. Prior to that hearing, the death of Lord Johnston intervened and the appeal was reheard by a bench comprising Lord Osborne, Lady Paton and Temporary Judge CGB Nicholson CBE, QC, on the dates previously assigned.
Cases referred to:
P&O Scottish Ferries Ltd v Braer Corporation and orsUNKUNK 1999 SCLR 540; [1999] 2 Lloyd's Rep 535
Ross v Lord AdvocateSCWLRUNK 1986 SC (HL) 70; 1986 SLT 602; [1986] 1 WLR 1077; [1986] 3 All ER 79
The appeal called before the High Court of Justiciary, comprising Lord Osborne, Lady Paton and Temporary Judge CGB Nicholson CBE, QC, for a hearing on 8 and 9 July 2008.
At advising, on 16 September 2008, the opinion of the Court was delivered by Temporary Judge CGB Nicholson CBE, QC-
Opinion of the Court-
[1] This is an appeal by stated case against both conviction and sentence. Early in 2005 the appellants were charged at the instance of the respondent in the following terms:
'On July 1st 2004, on the Lomond offshore installation located [in a designated area of the North Sea], and being the person carrying on operations for the exploration of the sea bed and subsoil and the exploitation of their natural resources, namely searching and boring for petroleum from the said Lomond offshore installation, you … did whilst circulating diesel fuel for the operation of plant on the installation allow said fuel to over fill a storage tank and did thus discharge a mixture containing oil from said installation into the sea. CONTRARY to Section 3(1)(b) and (3) of the Prevention of Oil Pollution Act 1971.'
[2] The appellants pled not guilty to that charge and, in due course, the case went to trial before a sheriff at Aberdeen on 10 June 2005. Evidence was led on that day and on six further (mostly non-consecutive) days, and the trial eventually concluded on 2 December 2005. On that day the sheriff found the appellants guilty as libelled, and he imposed a fine of £25,000 (the statutory maximum on summary conviction being £50,000). On 9 December 2005 the appellants applied for a stated case, and that was duly issued on 21 March 2006. For reasons which are not apparent the appeal did not call before this court until Thursday 18 October 2007. On that occasion the Bench comprised Lord Osborne, Lord Johnston and Temporary Judge Nicholson. In accordance with the appellants' prediction as to the amount of time which would be required for the hearing, a half-day had been set aside for the disposal of the appeal. However, it turned out that the appellants' prediction had been woefully inadequate, and in the result, and after adjournment of all of the court's business for the following day, the hearing was continued to Friday, 19 October 2007. That, however, proved to be just enough to enable counsel for the appellants to complete his submissions and for the Advocate-depute to give a brief summary of the submissions which he proposed to advance in response. In the circumstances this court had no alternative but to continue the appeal further to a date to be fixed.
[3] That, of course, was not easy to arrange since it involved the clerk of court having to try to find up to two days when the same Bench, the same counsel for the appellants, and the same Advocate-depute could all be available. Eventually, two days in July 2008 were identified as suitable, namely 8 and 9 July. Sadly, however, only a few weeks before those dates Lord Johnston unexpectedly died. That, of course, meant that the appeal hearing had to be recommenced from the beginning with at least one new member on the Bench. In the circumstances it proved to be possible to arrange for Lady Paton to become a member of the Bench, and for the whole of the week beginning on 8 July to be made available for a fresh hearing of the appeal. For the purposes of that hearing counsel for the appellants prepared, and lodged, a brief, but nonetheless comprehensive, written summary of his submissions. His purpose in doing so was to enable Lady Paton to obtain a flavour of those submissions in advance of the hearing, and at the same time to remind the other two members of the Bench of what had been submitted some nine months earlier. We are most grateful to counsel for having taken this course which we found to be extremely helpful.
[4] On 1 July 2004 the supply vessel, Maersk Fighter, arrived at the appellants' Lomond installation in a designated area of the North Sea to offload supplies which were required by that installation. After unloading other supplies it was asked to bunker diesel fuel. On the installation there are two diesel storage tanks, one called the north tank and the other the south tank. In normal operations diesel oil is circulated from one of the tanks to the various points on the installation where it is required for the operation of generators and other pieces of equipment, and it is then returned to the same tank. The other tank is kept in reserve. On 1 July 2004 the north tank was in use for the circulation of diesel fuel round the installation, and accordingly it...
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