Fish & Fish Ltd v Sea Shepherd UK and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hamblen |
| Judgment Date | 25 June 2012 |
| Neutral Citation | [2012] EWHC 1717 (Admlty) |
| Docket Number | Case No: 2011 FOLIO 461 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 25 June 2012 |
[2012] EWHC 1717 (Admlty)
Mr Justice Hamblen
Case No: 2011 FOLIO 461
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mr Michael Davey (instructed by Hill Dickinson LLP) for the Claimant
Mr John Russell (instructed by Clyde & Co.) for the 1 st Defendant
Hearing dates: 28, 29 and 30 May 2012
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.
Introduction
This is the trial of preliminary issues between the Claimant and the First Defendant ("SSUK") as ordered by Flaux J on 2 December 2011.
The Claimant is a company engaged in the aquaculture business and operates a fish farm for bluefin tuna situated offshore of Malta. The Claimant purchases live tuna from fishermen participating in the bluefin tuna fishery in the Mediterranean Sea and transports the fish to the fish farm in floating cages.
The Second Defendant ("SSCS") is a conservation charity based in Friday Harbour, Washington State in the USA. It is an international non-profit, marine wildlife conservation organization which uses "direct-action tactics to investigate, document, and take action when necessary to expose and confront" what it considers to be illegal activities on the high seas. The Third Defendant ("Watson") is the founder of SSCS and its organisational head. There are various Sea Shepherd charities around the world which support SSCS, including charities in France, the Netherlands, Belgium, South Africa, Australia, Ecuador and Canada and in the UK, SSUK.
In 2010 SSCS launched "Operation Blue Rage", a campaign aimed at preventing fishing of Atlantic bluefin tuna contrary to the regulations of the International Commission for the Conservation of the Atlantic Tunas ("ICCAT") and Council Regulation (EC) No 302/2009. Under the EC regulation there is a limited period each year when fishing is permitted and there is a quota system. In June 2010 the vessel "STEVE IRWIN" was sent to the Mediterranean to carry out the campaign. SSUK is the legal owner of the "STEVE IRWIN".
On 17 June 2010 the Claimant was engaged in transporting live bluefin tuna in cages from Libyan waters to Malta when the "STEVE IRWIN, under the command of Watson as Master, mounted what the Claimant describes as an "attack" on the tuna cages and the tugs towing them. A cage was rammed and divers from onboard the "STEVE IRWIN" dived into the cage and tore open the netting, releasing the Claimant's fish into the sea. The Claimant claims losses amounting to € 760,148.
The "attack" was part of the "Operation Blue Rage" campaign and it is the Claimant's case that the campaign was conducted by all three defendants and that they are liable as joint tortfeasors.
The Claimant's claim is based on trespass to and/or conversion of the Claimant's property, namely the cages and the tuna in its possession. SSUK puts forward two defences. The first is that it is not legally responsible for the conduct of the "attack". This is the subject of the preliminary issue trial. The issue is defined in the Order as follows:
"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 second defence which has been raised is that the fish had been illegally caught. The Claimant denies this, and contends that it is in any event irrelevant. The issues which arise as to the alleged legality of the Claimant's possession of the fish, and whether illegality would afford a defence, are not the subject-matter of the present hearing. Without prejudice to that further defence, for the purpose of the preliminary issue it is to be assumed that the incident involved tortious acts. The issue is SSUK's legal responsibility for those acts.
The significance of the preliminary issue is that it goes to jurisdiction. SSUK is an English company and was served within the jurisdiction. SSCS and Watson were served out of the jurisdiction pursuant to the permission of the court on the basis that they were necessary or proper parties. An application has been issued by SSCS and Watson challenging jurisdiction. The principal basis for that application is that there is no real claim as between the Claimant and SSUK. The hearing of the jurisdiction application has been stood over pending the outcome of the preliminary issue trial.
The parties
The Claimant operates a fish farm situated offshore of Malta.
SSCS's mission statement, taken from its website, is stated to be as follows:
"Established in 1977, Sea Shepherd Conservation Society (SSCS) is an international non-profit, marine wildlife conservation organization. Our mission is to end the destruction of habitat and slaughter of wildlife in the world's oceans in order to conserve and protect ecosystems and species.
Sea Shepherd uses innovative direct-action tactics to investigate, document, and take action when necessary to expose and confront illegal activities on the high seas. By safeguarding the biodiversity of our delicately-balanced ocean ecosystems, Sea Shepherd works to ensure their survival for future generations."
SSCS was founded by Watson in 1977 following a split from Greenpeace. Watson is very much the driving force within SSCS. He is its President. As he puts it in his witness statement he is "the organisational leader with the overall strategic control of SSCS". The website states that he has been "at the helm" of SSCS for 31 years and refers to him as the "Master and Commander" of SSCS's voyages to protect, defend, and conserve the Earth's wild oceans.
The website also notes:
"Captain Watson is a sea captain in the truly traditional sense- where he is the master and commander of his own ships and is not dictated to by a corporate Board. He makes the decisions and he bears the full responsibility for his actions.
…
Without a doubt, the Sea Shepherd is the most experienced marine wildlife conservation interventionist organization in the world and Captain Watson is the single most experienced conservation sea captain on the high seas today."
SSUK is a company limited by guarantee and is a registered charity which was established in 2005.
Information about SSUK's activities can be found on the Charity Commission's website. It states, inter alia:
"ACTIVITIES
To raise funds for and awareness of campaigns to protect marine wildlife and ecosystems worldwide. To investigate UK based work for the protection of marine and/or freshwater wildlife with the aim of UK based campaigns.
…
CHARITABLE OBJECTS
The purposes of the charity are: 1) to advance education in the field of marine and freshwater ecology; 2) to promote the conservation and preservation of marine and freshwater living organisms; 3) to promote humane behaviour towards animals, particularly but not exclusively marine animals, which are in need of care and attention by reason of sickness, maltreatment, poor circumstances or ill usage; 4) any other purposes deemed charitable under the laws of England and Wales.
…
CLASSIFICATION
…
How
• makes grants to organisations
• provides buildings/facilities/open space
• provides services
• provides advocacy/advice/information
• sponsors or undertakes research
• other charitable activities
…
Where the charity operates
• throughout England and Wales, Scotland."
Watson is a director, but not an employee, of SSUK. At the time of the Blue Rage 2010 campaign SSUK had only one employee, Mr Darren Collis.
The Claimant's claims
In summary the Claimant's case is that Watson as the Master of the vessel directed the Operation Blue Rage campaign and the vessel on behalf of SSUK and SSCS and that they are both legally responsible for his actions in relation to the "attack" on the Claimant's vessels and cages and the release of the fish ("the capacity issue"). Further or alternatively, these actions were taken pursuant to a common design between the Defendants to commit such acts. The part allegedly played by SSUK in furtherance of that common design was "to make the vessel available for, and/or to deploy it in the Blue Rage campaign, to recruit volunteers, pay the crew (at least according to its accounts) and to support the campaign by obtaining financial contributions" ("the common design issue").
SSUK contended that the common design case was not open to the Claimant on the pleadings or covered by the terms of the preliminary issue. Whilst I accept that the main focus of the Claimant's pleaded case was that SSUK was a primary infringer and itself directed or authorised or carried out the "attack", I consider that the pleading, and therefore the preliminary issue, is drawn sufficiently widely to encompass the common design issue. However, as the Claimant accepted, that is on the basis that the Claimant's case on the issue is limited to the pleaded facts.
The relevant legal principles
In respect of the capacity issue it was common ground that this depended on whether as a matter of fact whilst directing the "attack" Watson as Master of the "STEVE IRWIN" was acting on behalf of SSUK.
In respect of the common design issue, persons may be joint tortfeasors when their respective shares in the commission of a tort are done in furtherance of a common design: The "Koursk" [1924] P 140 at p.156 per Scrutton LJ;...
To continue reading
Request your trial
-
Sea Shepherd UK v Fish & Fish Ltd
...a trial which included oral evidence, Hamblen J decided the issue in favour of the appellant and dismissed the claim against it: [2012] EWHC 1717 (Admlty), [2012] 2 Lloyd's Rep 409. He also directed that service of the proceedings on the other defendants out of the jurisdiction be set 4 H......
-
Fish & Fish Ltd v Sea Shepherd UK and Others
...IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMIRALTY COURT The Hon. Mr Justice Hamblen [2012] EWHC 1717 (Admlty) Royal Courts of Justice Strand, London, WC2A 2LL (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Commu......
-
Cairn Energy Plc V. Greenpeace Ltd+greenpeace Uk Ltd+stichting Greenpeace Council+greenpeace Environmental Trust Limited+persons Unknown
...is to be found in the well-known case of The KOURSK [1924] P 140 (per Scrutton LJ at p.156). In Fish & Fish Ltd v Sea Shepherd UK [2012] EWHC 1717 (Admlty), Hamblen J applied those principles to a dispute concerning allegations of interference by the defendants with the claimant's fish farm......
-
Fish & Fish Ltd v Sea Shepherd UK and Others
...Mummery, Lord Justice McCombe and Lord Justice Beatson)WLR ([2013] 1 WLR 3700) overtu rning the decision of Mr Justice HamblenUNK ([2012] 2 Lloyd's Rep 409), on a preliminary issue, that Sea Shepherd, was not liable as a joint tortfeasor with the second and third defendants, Sea Shepherd Co......
-
UK Supreme Court Reaffirms Law On Accessory Liability In Tort
...steps taken by SSUK in support of the campaign were minimal such that it was not liable under the doctrine of common design, see: [2012] 2 Lloyd's Rep 409. The Court of Appeal reversed this judgment in part, see: [2013] 1 W.L.R. 3700. Lord Justice Beatson held that SSUK had "joined in" a co......