Ferryways NV v Associated British Ports

JurisdictionEngland & Wales
JudgeMr. Justice Teare
Judgment Date14 February 2008
Neutral Citation[2008] EWHC 225 (Comm)
Docket NumberCase No: 2006 FOLIO 1092
CourtQueen's Bench Division (Commercial Court)
Date14 February 2008

[2008] EWHC 225 (Comm)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr. Justice Teare

Case No: 2006 FOLIO 1092

Between:
Ferryways NV
Claimant
and
Associated British Ports
Defendan

Nigel Cooper (instructed by Mills and Co.) for the Claimant

Grahame Aldous (instructed by Hill Dickinson LLP) for the Defendant

Hearing dates: 30–31 January 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

MR.JUSTICE TEARE

Mr. Justice Teare
1

This is the judgment of the Court on six preliminary issues arising out of a claim brought by the Claimant, a Belgian ship owner or operator (now in receivership), against the Defendant, an English port owner or operator. The claim arises out of the death on 26 October 2005 at Immingham of Oleksiy Prutskoy, a Ukrainian, who was chief officer on board the vessel HUMBER WAY. He was supervising the loading and unloading operations when he was hit by a tugmaster vehicle driven by an employee of a sub-contractor of the Defendant. Sums were paid by the North of England P & I Club (in which the vessel was entered) in respect of his death and of the cost of repatriating his body. The Claimant, who was the demise charterer of the vessel and a member of the Club, seeks to recover those sums from the Defendant. The Defendant denies that the Claimant is entitled to recover those sums.

2

The sums were paid on the basis that the Claimant was the employer of the chief officer. The Defendant denies that the Claimant was the employer and avers that the employer was Ambra Shipmanagement Ltd. of Cyprus (“Ambra”). The Defendant therefore says that Claimant has not suffered any loss and cannot recover the sums paid. In addition it was said that the Defendant was protected by the terms of its stevedoring contract with the Claimant. Thus it is necessary to begin by referring to the essential terms of the relevant contracts.

The crew management agreement

3

The Claimant and Ambra entered into a Crew Management Agreement (“the CMA”) dated 2 June 200The CMA was on the standard form of the BIMCO crew management agreement known as “Crewman A Cost Plus Fee”. The Claimant was described as the Owner and Ambra was described as the Crew Manager. The CMA commenced on 30 June 200No termination date was specified.

4

“Vessel” and “crew” were defined. “Vessel” meant the vessel or vessels set out in Annex A and “crew” meant the master officers and ratings of the numbers rank and nationality specified in Annex B.

5

Annex A named the vessel as BEATRIXHAVEN. Annex B referred to the name of the vessel as BEATRIXHAVEN tbn [to be named] HUMBER WAY. It is common ground, or at any rate not disputed, that the vessel covered by the CMA was the vessel on which the chief officer suffered his accident, HUMBER WAY.

6

The flag of the vessel was stated in Part 1 box 7 of the CMA to be “Malta to be reflagged to Panama”. By Part I box 12 and Part II clause 19.1 the CMA was governed by English law.

7

“Crew Management Services” were defined as the services agreed to be carried out by the Crew Managers in accordance with clause 3.1.

8

Part II Clause 3 of the CMA provided that:

“……..the Crew Managers shall carry out the Crew Management Services in respect of the Vessel as agents for and on behalf of the Owners.”

9

Clause 3.1 provided as follows:

“The Crew Managers shall provide suitably qualified Crew for the Vessel as required by the Owners in accordance with the STCW 95 requirements, provision of which includes but is not limited to the following functions:

“(i) selecting and engaging the Vessel's Crew……….”

(v) instructing the Crew to obey all reasonable orders of the Owners and/or the Company, including, but not limited to orders in connection with safety and navigation, avoidance of pollution and protection of the environment.”

10

The “Company” referred to in clause 3.1(v) was defined as

“the Owner of the vessel or any other organisation or person who has assumed the responsibility for the operation of the vessel from the Owner and who, on assuming such responsibility, has agreed to take over all duties and responsibilities imposed by the ISM Code”.

11

The Owner was obliged by clause 8 to provide funds to the Crew Manager so that it could pay Crew Costs (which would include such items as wages) and clause 8.5 provided:

“8.5 Unless otherwise agreed, all discounts and commissions obtained by the Crew Managers in the course of the Crew Management of the Vessel shall be credited to the Owners.”

12

Clause 12.4 provided that:

“Indemnity. Except to the extent and solely for the amount therein set out that the Crew Managers would be liable under sub-clause 12.2 the Owners hereby undertake to keep the Crew Managers and their employees, agents and sub-contractors Indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them arising out of or in connection with the performance of the Agreement, and against and in respect of all costs, loss, damages and expenses (including legal costs and expenses on a full indemnity basis) which the Crew Managers may suffer or incur (either directly or indirectly) in the course of the performance of this Agreement.”

13

There was an Addendum to the CMA which extended the CMA to the period 1 August 2004 until 31 January 2006.

The contract of employment

14

Ambra engaged crew on the terms of a document described as a Voyage Contract. Ambra did so with the assistance of a manning agency in the Ukraine known as Staff Centre, Odessa-Ukraine. The Chief Officer was first employed to serve on HUMBER WAY pursuant to such a contract dated 11 September 2003. The tour of duty was 2 months and so there were subsequent contracts dated 26 March 2004, 22 July 2004, 17 September 2004, 29 January 2005 and 17 June 2005. They were all in the same terms and identified the vessel on which he was to serve as HUMBER WAY.

15

It appears that the contract in force at the time of the incident on 26 October 2005 was dated 5 October 2005. Like its predecessors it is described as

“a contract of employment between Ambra Shipmanagement Ltd., ………… as the Employer (hereinafter called the Company) and Prutskoy Oleksiy as the seafarer (hereinafter called the Employee)”.

16

The contract was to be governed by and construed in all respects in accordance with the laws of the vessel's flag state.

17

The contract was signed for the Company by Staff Centre as agents only.

18

Prior to the date of this final contract of employment the chief officer had served on HUMBERWAY for in excess of 14 months between September 2003 and August 2005. However, the vessel on which the chief officer was to serve was named in the final contract as mv HOBURGEN.

19

The reason that the contract dated 5 October 2005 referred to mv HOBURGEN and not to mv HUMBER WAY appears from an e-mail dated 29 September 2005 from Bill Davidson, the Claimant's fleet manager. HOBURGEN, which had been chartered by the Claimant and served as one of the “Ferryways ships”, lacked a master with a pilotage exemption certificate (“PEC”) for Immingham. Chief Officer Prutskoy had such a PEC and so he was placed temporarily on board that vessel. He served on HOBURGEN from 6 October 2005 until 15 October 2005 when, it would appear, the master returned having obtained the requisite PEC. Thereafter Chief Officer Prutskoy served on HUMBER WAY. Wages statements prepared by Ambra record his service on both vessels.

20

The contract of employment provided details of the employee's monthly wages and bonus payments. By clause 1 of the terms and conditions “the Company” was liable for payment of all wages. By clauses 15.2 and 15.2.1 “the Company” was liable to pay compensation “in the event that the Employee dies” and to “bear in full the cost of ………….return of the body to place or residence by the next-of-kin.” The following clauses must also be noted:

“12. GRIEVANCE PROCEDURE

12.1 If the Employee has a grievance, he should make use of the following grievance procedure: The aim of the grievance procedure is to settle the grievance quickly and fairly, and as near to the point of origin as possible.

12.1.1. The matter is first raised with the Employee's Superior Officer.

12.1.2. If the grievance is not resolved within 48 hours, the matter will be referred to the Master by your Superior Officer who should furnish the Master an agreed note explaining how the matter has been processed so far.

12.1.3. If the grievance is not settled between the Employee and the Master onboard, the Master will present the facts in writing to the Employer. The Company's decision will be final.

14. CODE OF CONDUCT

Introduction

Disciplinary procedures onboard a vessel are designed to uphold the standards as laid down in the Rules and Regulations of the Company.

16. COMPANY POLICY

Safety and Environmental Protection Policy.

The Company works on the basis of a structured and documented Safety Management System to contribute to a safe transport of goods and passengers at sea and to the protection of the maritime environment. The Safety Management System (SMS) is based on the requirements of the International Safety Management Code (ISM-Code IMO Resolution A.741(18)).

Our Safety and Environmental Protection Management System is based on the following principles:

The primary objectives of our business activities are the prevention of human injury or loss of life and property, personal safety protection of the men and passengers at sea, the protection of the maritime environment and the avoidance of damage or loss of the ship, its cargo and other goods.

...

To continue reading

Request your trial
9 cases
  • Georgi Velichkov Barbudev v (1) Eurocom Cable Management Bulgaria Eood
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • Invalid date
  • Yuanda (UK) Ltd v WW Gear Construction Ltd
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 13 April 2010
    ...a matter of degree whether one contracting party is or is not dealing on its written standard terms: see, for example, Ferryways NV v Associated British Ports [2008] 1 Lloyd's Rep 639 (a decision of Teare J, approving the approach of HH Judge Seymour QC in Hadley Design). 23 However, that p......
  • Filatona Trading Ltd v Navigator Equities Ltd
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 7 February 2019
    ...which should lead the agent to realise that the other party was not so willing. 298 I considered this area of the law in Ferryways NV v Associated British Ports [2008] EWHC 225 (Comm) at paragraphs 48–55. I described the nature of the enquiry upon which the court is engaged in these terms ......
  • Seadrill Management Services Ltd v OAO Gazprom Operator (The Ekha)
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 1 July 2009
    ...present state of the authorities (the effect of which are usefully summarised in paragraph 83 of the judgment of Teare J in Ferryways NV v Associated British Ports [2008] 1 Lloyd's Rep 639 at 649–650), the exclusion of “special, indirect, or consequential damages resulting from or arising o......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • United Kingdom
    • Construction Law. Volume I - Third Edition
    • 13 April 2020
    ...pty Ltd (No.2) [2015] QSC 220 III.26.169 Ferris v plaister (1994) 34 NSWLr 474 III.25.53 Ferryways NV v associated British ports [2008] EWhC 225 (Comm) II.13.206, II.13.214, II.13.219 Ferson Contractors Ltd v Levolux aT Ltd [2003] BLr 118 II.6.418, III.24.80, III.24.92, III.24.91, III.24.12......
  • Damages
    • United Kingdom
    • Construction Law. Volume II - Third Edition
    • 13 April 2020
    ...and tort” in LLoyd (ed), he Liability of Contractors (Longman, 1986) page 12. See also Ferryways NV v Associated British Ports [2008] EWhC 225 (Comm) at [92]–[93], per Teare J. 630 Pegler Ltd v Wang (UK) Ltd [2000] BLr 218 at 228 [63]–230 [73], per hhJ Bowsher QC; Commercial Management (Inv......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT