Fish & Fish Ltd v Sea Shepherd UK and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice McCombe,Lord Justice Mummery |
| Judgment Date | 16 May 2013 |
| Neutral Citation | [2013] EWCA Civ 544 |
| Docket Number | Case No: A3/2012/1784 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 2013 |
and
and
[2013] EWCA Civ 544
Lord Justice Mummery
Lord Justice McCombe
and
Lord Justice Beatson
Case No: A3/2012/1784
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMIRALTY COURT
The Hon. Mr Justice Hamblen
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Davey (instructed by Hill Dickinson LLP) for the Appellant/Claimant
John Russell (instructed by Clyde & Co) for the Respondent/First Defendant
The Second and Third Defendants did not appear and were not represented
Hearing date: 19 March 2013
Further submissions: 2 and 3 May 2013
Approved Judgment
Introduction and background:
This is an appeal from the order, dated 25 June 2012, of Hamblen J following the trial of a preliminary issue. The immediate question is whether the respondent, Sea Shepherd UK (hereafter "SSUK") is liable as a joint tortfeasor for an attack which damaged the property of Fish & Fish Ltd (hereafter "the appellant") to prevent what SSUK and others regarded as illegal fishing for bluefin tuna.
SSUK is an English company limited by guarantee and a charity. It was the first defendant in these proceedings and was served within the jurisdiction. The second and third defendants, Sea Shepherd Conservation Society (hereafter "SSCS"), and Paul Watson, were served out of the jurisdiction pursuant to the permission of the court on the ground that they are necessary or proper parties to the claim against SSUK. As that was the only jurisdictional gateway to service out of the jurisdiction against them, if there is no claim against SSUK, there is no jurisdiction for the proceedings against them. Accordingly, while the immediate question is the one I have set out at [1], there is also an underlying question as to the jurisdiction of the courts in this country over SSCS and Mr Watson. That question does not fall for decision in these proceedings in which neither took any part.
The International Conference for the Conservation of Atlantic Tuna (hereafter "ICCAT") and Council Regulation (EC) No. 302/2009 regulate the fishing of Atlantic blue fin tuna. Fishing is only permitted during a limited period each year and a quota system restricts catches.
The appellant operates a fish farm situated offshore of Malta which is authorised by ICCAT. It claims €760,148 in damages for trespass to and/or conversion to its property. On 17 June 2010 two of its vessels were towing cages containing live bluefin tuna from Libya to its fish farm, when, as part of "Operation Blue Rage", a campaign by SSCS, one of them was rammed by another vessel, the "STEVE IRWIN". A cage was damaged and some 33 tonnes of the total catch of 64 tonnes of fish were released into the sea by divers from the "STEVE IRWIN".
SSUK is one of a number of Sea Shepherd charities in a number of countries. It is the registered owner of the "STEVE IRWIN". The vessel was sold pursuant to a sale agreement dated 24 October 2006 between Babcock Support Services Ltd, as sellers, and SSUK, as buyers. There is also a bill of sale between the Scottish Ministers as transferors and SSUK as transferee. The purchase price of £825,000 was met by SSCS using its funds and a loan made to it and to SSUK which SSCS subsequently paid off. The vessel remained a UK registered vessel until 22 October 2008, when it was registered in the Netherlands. The Netherlands certificate of registry names SSUK as the owner.
SSCS is a conservation charity based in the United States of America. It was founded in 1977 following a split from Greenpeace. It is an Oregon corporation, and is now based in Washington State. In 2010 it launched "Operation Blue Rage", a campaign aimed at preventing fishing of Atlantic blue fin tuna contrary to the ICCAT's Regulations and Council Regulation (EC) No. 302/2009. A posting on SSCS's website dated 23 January 2010 announced the campaign. It stated that "the objective will be to intercept and oppose the illegal operations of blue fin tuna poachers" and that "Sea Shepherd intends to confront the poachers and will not back down to threats and violence from the fishermen".
The third defendant, Paul Watson, is the founder and organisational head of SSCS. He is a director, but not an employee, of SSUK. On 17 June 2010, Mr Watson was the Master of the "STEVE IRWIN". In email notices dated 9 and 10 June sent to SSCS recipients he stated "the time has come … for Sea Shepherd to legally intervene against any blue fin tuna fishing activity we can encounter" and "Sea Shepherd's objective is to free [illegally fished] blue fin tuna from the nets and cages and we can do this with the poachers. We anticipate a violent defence by the poachers but that is a violence we can defend ourselves from…".
The main focus of the appellant's case in the pleadings and before the judge concerned the capacity in which Mr Watson acted. It was submitted that on 17 June Mr Watson directed the attack on its vessels and cages and the release of the fish on behalf of both SSUK and SSCS. Accordingly, SSUK and SSCS are both legally responsible for his actions. In view of the judge's findings of fact, as to which see [15] – [17], Mr Davey, on behalf of the appellant, while not abandoning this point, concentrated on the appellant's alternative case. This was that the actions against the appellant's property were taken pursuant to a common design between the three defendants to commit such acts. SSUK was a joint tortfeasor because it acted in furtherance of the common design by making the vessel available to the "Blue Rage" campaign and inter alia paying the crew and processing and remitting donations received for the "Blue Rage" campaign to SSCS. The appellant relied inter alia on a document (hereafter "the mailshot") which solicited funds for the campaign and SSUK's processing of contributions. It also relied, particularly in the oral submissions, on SSUK's Trustees' Report for the year ending on 30 June 2010, which formed part of its financial statements.
The mailshot is headed "Blue Rage". Its headline stated: "We intend to seize, cut, confiscate and destroy every illegal tuna fish net we find". At the bottom of the page SSUK's address was set out. The evidence of Mr Collis, the sole employee of SSUK at the time, was that copies of the mailshot to recipients in the UK were posted in the UK, although probably by an intermediary (acting for SSCS) rather than by SSUK. SSUK received and processed the responses to the mailshot which it received and remitted £1,730 to SSCS for use in the "Blue Rage" campaign.
SSUK's Trustees' Report for the year ending on 30 June 2010 was signed off by Mr Roest, then a director and a trustee of SSUK, on 7 December 20It contained sections on "objective, mission and principal activity" and "public benefit". The former stated inter alia that SSUK's objectives are "to conserve and protect the world's marine wilderness ecosystems and marine wildlife species" and endeavours to do so "through public education, investigation, documentation and, where appropriate and where legal authority exists under international law or under agreement of national governments, enforcement of violations of the international treaties, laws and conventions designed to protect the oceans" (emphasis added).
The section on public benefit stated that the Trustees "consider how planned activities will contribute to the aims and objectives they have set". It also stated that SSUK "work[s] towards the goal of marine conservation and saving marine species and habitats from extinction", "Sea Shepherd saved 528 whales in the protected Southern Ocean sanctuary during Operation No Compromise…., and that [t]here were several new international campaigns in 2010, including a campaign in the Mediterranean to protect the critically endangered Bluefin tuna…" (emphasis added).
The preliminary issue:
Although Mr Watson gave evidence, SSCS and Mr Watson took no part in these proceedings as parties. They challenged jurisdiction principally on the ground that, as the appellant had no real claim against SSUK, there was no claim to which they could be necessary or proper parties. The jurisdiction challenge was stood over pending the outcome of the preliminary issue trial. The preliminary issue before Hamblen J therefore sought to address SSUK's responsibility. It was formulated thus:
"Whether the incident on 17 June 2010 was directed and/or authorised and/or carried out by the first defendant, SSUK, its servants or agents, as alleged in paragraph 9 of the particulars of claim and as further particularised in paragraph 6 of the reply and accordingly whether SSUK is liable, directly or vicariously, for any alleged damage to the tuna fish cage and/or the release of the fish."
The judge's order answered it in the negative.
The judgment below:
I have referred (see [8]) to the two issues before the judge. It was common ground (see judgment, [19]) that the first, "the capacity issue", depended on whether, as a matter of fact, Mr Watson was acting on behalf of SSUK while directing the attack on 17 June 2010. The second question was, in the light of the classic statement from Clerk & Lindsell on Torts adopted by Scrutton LJ in The Koursk [1924] P 140 termed "the common design issue". In that case Scrutton LJ stated (at 156) that "persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in...
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