Club Cruise Entertainment & Travelling Services Europe v Department of Transport (The Van Gogh)
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE FLAUX,Mr Justice Flaux |
| Judgment Date | 18 November 2008 |
| Neutral Citation | [2008] EWHC 2794 (Comm) |
| Docket Number | Case No: 2007 FOLIO NO 177 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 18 November 2008 |
[2008] EWHC 2794 (Comm)
IN THE HIGH COURT OF JUSTICE
COMMERCIAL COURT
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Flaux
Case No: 2007 FOLIO NO 177
Richard Lord QC (instructed by Thomas Cooper) for the Claimant
David Goldstone QC and Ben Olbourne (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 11 November 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is the trial of preliminary issues as ordered by Aikens J on 27 June 2008. The Order provided that, subject to a list of agreed and/or assumed facts being agreed between the parties, the Court should proceed to the extent necessary on the basis that the facts alleged in the statements of case are true, save where the Court considers it inappropriate to do so.
The factual background
On the basis of the assumed facts or what is agreed between the parties, the background to the dispute can be stated relatively briefly as follows. The Claimant is the disponent owner of a cruise ship, the VAN GOGH. In 2006 the ship was chartered by the Claimant to Travelscope Cruises Limited, a cruise operator. In May 2006, the ship was scheduled to perform a series of short cruises, each of about 6 days duration from Harwich to various Norwegian ports then back to Harwich. The scheduled departure dates from Harwich were 16, 22 and 28 May 2006.
The first two cruises were performed. During those cruises, there were outbreaks on board of a gastrointestinal virus called norovirus, affecting significant numbers of passengers and crew. It is agreed that norovirus has the following characteristics: whilst unpleasant for those suffering from it, it is a relatively mild, well known and very common illness; it typically lasts 24 to 48 hours and has no long term effect and it affects between 600,000 and a million people in the UK each year, being particularly common in “semi-closed” environments like hospitals, schools and cruise ships. The Defendant would wish to qualify that by adding that it is temporarily disabling and can be fatal to the elderly or those in poor health.
On her return from the first cruise the ship was inspected at Harwich on 22 May 2006 by various public health officials. During that second cruise, the Claimant monitored the incidence of the illness on board and put into effect its detailed “Gastrointestinal Illness Response Plan”. On 27 May, before the ship's return to Harwich, a public health official was given information about the outbreak on board by the ship's doctor in a telephone call. Upon arrival at Harwich the following day, the ship's crew handed over a medical declaration to the ship's agent. It appears that of 744 people on board (225 of them crew) 93 had contracted the disease on that second cruise (80 passengers and 13 crew, only two of whom were deck crew).
After arrival at Harwich, an intensive process of cleaning and sanitation of the ship started on the morning of 28 May. That process was apparently still taking place when the ship was visited later in the day by various officials including Captain Andrew Rudge, a Principal Surveyor/Surveyor in Charge with the Maritime and Coastguard Agency (“MCA”), an agency of the Department of Transport, the Defendant. At about 19.00 hours, Captain Rudge issued a Detention Notice to the Master. This was on a form headed “Notice of the Detention of a Ship for failure to comply with Merchant Shipping Legislation”. This Notice is not on a statutory form but on one created by the MCA for such eventualities. The Notice then stated as follows:
“I, A Rudge, the detaining officer, in exercise of power contained in the legislation listed below hereby detain this ship because it fails to comply fully with statutory requirements. The ship is prohibited from going to sea or on a voyage until released by an officer of the [MCA]. If applicable, the Chief Officer of Customs will withhold clearance until he receives advice from me that the ship has been released. The relevant points are listed below.”
The box below that, headed “Statutory Requirement”, has the words inserted: “MS Shipping Legislation. MS Act 1995”. In the box “Ship does not comply because” is written “Outbreak of Norovirus on previous two cruises”. At the bottom of the Notice appears the following:
“THE MASTER IS HEREBY INFORMED THAT THERE IS A RIGHT OF APPEAL AGAINST THIS DETENTION NOTICE. Advice on the appeals procedure is contained in a leaflet entitled “Arbitration on Detention of Merchant Ships and Fishing Vessels” (MSF 1704) which is available from the Detaining Officer.”
For the purposes of the determination of the preliminary issues (and particularly Issue 3) the Court is to assume that at the time that he issued the Detention Notice (which I will refer to as “the first notice”) Captain Rudge was satisfied of the matters set out in Paragraph 17.1 to 17.6 of the Defence which can be summarised as follows:
i) The occurrence of norovirus on the two cruises meant that there was a very high risk that further infection and illness would occur amongst passengers and crew during the course of the proposed third cruise due to commence on 28 May 2006. In those circumstances, the environment for persons on board the ship posed a risk to health.
ii) The presence of the virus meant that the crew would be at risk of infection and/or re-infection and hence there was a real risk of crew members becoming incapacitated, so that they would be unable to respond properly to an emergency situation. The danger would be exacerbated by the presence of large numbers of sick passengers making evacuation slower and more difficult. In these circumstances, the environment for persons on board the ship was also unsafe.
iii) In the light of the fact that there had been outbreaks of the illness on the two previous cruises, the minimum reasonably practicable steps that were necessary to ensure that the environment on board would be safe and without risk to health were that the ship remain in port for 48 hours before the next cruise and any ill crew should be isolated, the crew monitored for any further outbreaks and the ship steam cleaned.
Captain Rudge has sworn a short Affidavit dated 30 July 2008 in compliance with the Order of Aikens J. It is agreed that the Court should assume that the facts contained in that Affidavit are true. In it Captain Rudge explains that after leaving the ship on the evening of 28 May, he continued to consider the detention and at home that evening prepared a second Detention Notice. This was not taken on board the ship or sent to anyone at that time.
The second notice is dated 28 May 2006. It is headed “Notice of the Detention of a Ship as Dangerously Unsafe”. The notice then states:
“I, A Rudge, having inspected the above ship, am of the opinion that it is unfit to proceed to sea or on a voyage without serious danger to human life having regard to the nature of service for which the vessel is intended. In exercise of the powers in section 95 of the Merchant Shipping Act 1995, the ship is hereby prohibited from going to sea or on a voyage until released by an officer of the [MCA]. If applicable, the Chief Officer of Customs will withhold clearance until he receives advice from me that the ship has been released. The grounds of detention are.”
Below this, the grounds stated are:
“Outbreak of norovirus on two previous cruises. Over 100 passengers and crew affected on last seven day cruise. Director of Public Health advised that the vessel should remain docked for 48 hours to monitor crew and vessel.”
The rubric at the bottom of the notice about arbitration was the same as on the first notice.
Captain Rudge returned to the vessel two days later at about 15.20 hours on 30 May 2006. According to his Affidavit, in the passenger lounge shortly after arriving on board, he handed the Master a copy of the second notice and also the leaflet “Arbitration on Detention of Merchant Ships and Fishing Vessels” and its associated leaflet “Notice of Reference”. Following his re-inspection of the ship and a review of the situation on board, he was satisfied that the detention could be lifted. He issued a Notice of Release to the Master and the ship's superintendent at about 19.45 hours and left the ship about twenty minutes later.
Notwithstanding receipt of the leaflets concerning arbitration which made it clear that any arbitration has to be commenced within 21 days of receipt of the Detention Notice, the Claimant did not commence arbitration within that period. It is apparent that by 7 July 2006, the claimant had instructed Thomas Cooper & Stibbard to act on its behalf, since they wrote to the MCA on that date. I have not seen that letter but was invited to look at the reply from the MCA dated 21 July 2006, which I did de bene esse. It is clear from that letter that the MCA was saying that the detention had been justified because Captain Rudge had concluded that the ship was dangerously unsafe within sections 94 and 95 of the Merchant Shipping Act 1995 (“the Act”). It was not suggested in that letter that the detention had also been under Regulation 28 of the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 (“the 1997 Regulations”). Indeed, the first time that the Defendant sought to justify the detention by reference to those Regulations was when the Defence was served on 29 March 2007.
The relevant legislation
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