Comex Houlder Diving Ltd v Colne Fishing Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Fraser of Tullybelton,Lord Brandon of Oakbrook,Lord Ackner,Lord Goff of Chieveley |
| Judgment Date | 19 March 1987 |
| Judgment citation (vLex) | [1987] UKHL J0319-1 |
| Docket Number | No. 3. |
| Court | House of Lords |
| Date | 19 March 1987 |
[1987] UKHL J0319-1
Lord Keith of Kinkel
Lord Fraser of Tullybelton
Lord Brandon of Oakbrook
Lord Ackner
Lord Goff of Chieveley
House of Lords
My Lords,
The action with which these consolidated appeals are concerned arises out of a tragic episode which occurred in the Scottish sector of the North Sea on 24 December 1976. A diver named Michael Robert Moore made a dive, together with a companion, from an oil rig operated by Texaco North Sea U.K. Co. Ltd. ("Texaco") under instructions issued to him by the respondents Comex Houlder Diving Ltd. ("Comex"). Things went wrong. Moore became separated from his companion and was unable to get into the cage lowered from the oil rig to hoist him from the water. He drifted off, supported by an inflated life jacket. A safety vessel, the "Carbisdale," was standing by to deal with such emergencies. The vessel, which was provided by the first appellant under contract with Texaco, was owned by the second appellant and crewed by the third appellant. Those aboard the vessel made efforts to pick up Moore, but these were unsuccessful. He floated away and was drowned.
Moore's widow, on behalf of herself and her children, raised an action of damages in the United States District Court for the Eastern District of Pennsylvania against Texaco, Comex and other corporations associated with Comex. In consequence of jurisdictional pleas by the Comex companies, a similar action was raised in Texas. The defendants were advised to settle the actions, and this was brought about by a settlement of the Pennsylvanian action, under which the plaintiffs received a sum of U.S. $234,000, of which $50,000 was contributed by Texaco and $184,000 by the Comex corporations. According to the averments of Comex in the present action, the settlement was put before the court for approval, and the court, upon evidence from the plaintiff, found that the settlement was reasonable and well within the probable results of the litigation and approved it, and went on to give judgment against Texaco for $50,000 and against the Comex corporations for $184,000, each party being ordered to pay its own costs. The costs of Texaco and the Comex corporations amounted to a very considerable sum — about $75,000 in all to American legal advisers and £20,000 to British.
Comex obtained from Texaco and the other Comex corporations assignations of their respective claims against each of the appellants, and commenced the present action against them in the Court of Session. The conclusions of the summons are three in number, but these appeals are concerned only with the last of them, whereby Comex seeks declarator that it is entitled to contribution from the appellants under section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 in respect of the sums which Comex and its cedents paid by way of damages and their own costs in the Pennsylvania proceedings.
The appellants tabled a number of preliminary pleas and argued them on Procedure Bill before the Lord Ordinary (Lord Mackay of Clashfern) with varying success. For present purposes the only plea which is in point is a general plea to the relevancy of the respondent's case in so far as founded on a right to contribution under section 3 of the Act of 1940. As regards that matter the Lord Ordinary held that the respondent's averments did disclose a case capable of establishing a right to contribution and he allowed a proof before answer. Upon a reclaiming action by the appellants the First Division of the Inner House (Lord President Emslie, Lord Grieve and Lord McDonald) affirmed the Lord Ordinary. As the judgment was interlocutory, the appellants required and duly obtained leave of the First Division to appeal to your Lordships' House.
Section 3 of the Act of 1940 provides:
"(1) Where in any action of damages in respect of loss or damage arising from any wrongful acts or negligent acts or omissions two or more persons are, in pursuance of the verdict of a jury or the judgment of a court found jointly and severally liable in damages or expenses, they shall be liable inter se to contribute to such damages or expenses in such proportions as the jury or the court, as the case may be, may deem just: Provided that nothing in this subsection shall affect the right of the person to whom such damages or expenses have been awarded to obtain a joint and several decree therefor against the persons so found liable.
(2) Where any person has paid any damages or expenses in which he has been found liable in any such action as aforesaid, he shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded, such contribution, if any, as the court may deem just.
(3) Nothing in this section shall -
( a) apply to any action in respect of loss or damage suffered before the commencement of this Act; or
( b) affect any contractual or other right of relief or indemnity or render enforceable any agreement for indemnity which could not have been enforced if this section had not been enacted."
It is upon subsection (2) that the respondent relies, maintaining that by the judgment of the Pennsylvania court it and its cedents (to all of which I shall henceforward refer collectively as "Comex") have been found liable in an action of damages in respect of loss arising from negligent acts or omissions and have paid such damages, and further that the appellants are persons who, if sued, might also have been held liable, on grounds of their negligence, for the same loss. The appellants presented three principal arguments. In the first place they maintained that the words "found liable" in section 3(2) on a proper construction required that Comex should have had liability fixed upon it by judgment in a contested action. This had not happened in this case. What had happened was that Comex had voluntarily entered into a settlement of the plaintiff's claim in the Pennsylvania suit, and the judgment of the court had merely given effect to that settlement. It was argued secondly that subsection (2) had application only where the person claiming contribution had been found liable in damages in a Scottish court, so that no judgment of any foreign court could in law give rise to such a claim. The third argument was to the effect that in any event it was necessary that the party against whom contribution was sought should have been one who might have been successfully sued in the same court as that which found liable in damages the party claiming the contribution. That position did not exist in the present case because the appellants were admittedly not subject to the jurisdiction of the Pennsylvanian court.
Before examining the appellants' arguments in detail it will be helpful to consider briefly how the law relating to contribution among co-delinquents stood prior to the passing of the Act of 1940. In Palmer v. Wick and Pulteneytown Steam Shipping Co. Ltd. (1894) 21 R. (H.L.) 39 the widow of a man killed by the breakage of tackle being used to unload a ship obtained a joint and several decree for damages and expenses against the shipowners and a stevedore involved in the unloading. The widow charged the shipowners with the whole sum, and the latter thereupon paid it and took an assignation of the decree. They then sued the stevedore for half the sum, and were held entitled to recover it, both in the Inner House and in your Lordships' House. Much attention was given by Lord Watson to consideration of the rule against contribution among wrongdoers. He took the view, with the concurrence of Lord Halsbury and Lord Shand, that the rule did not apply to quasi-delicts involving no moral blame on the part of the delinquent, and he held that in any event the rule was inapplicable where contribution was sought upon the basis of a decree constituting a civil debt against both parties. It was also held to be no objection to the right of recovery that it was limited to a pro rata share of the liability, irrespective of the degree of fault which might be attributable to each of the parties....
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