Hamida Begum (on behalf of MD Khalil Mollah) v Maran (UK) Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Jay
Judgment Date13 July 2020
Neutral Citation[2020] EWHC 1846 (QB)
Docket NumberCase No: QB-2019-1331
Date13 July 2020
Between:
Hamida Begum (on behalf of MD Khalil Mollah)
Claimant
and
Maran (UK) Ltd
Defendant

[2020] EWHC 1846 (QB)

Before:

Mr Justice Jay

Case No: QB-2019-1331

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Richard Hermer QC and Rachel Toney (instructed by Leigh Day) for the Claimant

Robert Bright QC and James Goudkamp (instructed by Ince Gordon Dadds LLP) for the Defendant

Hearing dates: 29 th and 30 th June 2020

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 Jay Mr Justice Jay

Overview

1

On 30th March 2018 Mr Mohammed Khalil Mollah (“the deceased”) fell to his death whilst working on the demolition of a defunct oil tanker (“the vessel”) in the Zuma Enterprise Shipyard (“the yard”) in Chittagong (now Chattogram), Bangladesh. On 11th April 2019 the deceased's widow issued proceedings claiming damages for negligence under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976; alternatively, under Bangladeshi law. The scope of the proceedings has subsequently been broadened inasmuch as draft Amended Particulars of Claim advance a cause of action in restitution: more precisely, unjust enrichment.

2

These proceedings have not been brought against the owner of the yard and/or the deceased's employer. Both are Bangladeshi entities. Maran (UK) Ltd (“the defendant”) is a company registered in the UK and, by way of highly compressed summary of the claimant's pleadings, it is alleged was both factually and legally responsible for the vessel ending up in Bangladesh where working conditions were known to be highly dangerous.

3

On 28th February 2020 the defendant filed an Application Notice to strike out the claim and/or for summary judgment under CPR Part 24.2. The parties are agreed that in determining this application my scrutiny should be directed to the version of the draft Amended Particulars of Claim served on 18th May.

4

The defendant's application raises a number of issues but the principal focus of the oral argument has been whether the draft Amended Particulars of Claim disclose viable claims in English law on the two bases pleaded, namely in the tort of negligence and in unjust enrichment. Furthermore, given that the requirements of CPR Part 24.2 are less onerous from a defendant's perspective than those of Part 3.4(2)(a) (but, as the claimant would emphasise, are stringent enough), it seems sensible to consider the former rather than the latter. In any case, both parties rely on evidence which would not be admissible on a strike-out application.

Summary Judgment: the Test

5

Summary judgment may be ordered under CPR Part 24.2(a) only if the court considers that the claimant has no real prospect of succeeding on the claim. This has been explained in various authorities using slightly different language but ultimately the issue is whether the court is able to conclude, without conducting a mini-trial or anticipating what the processes of disclosure and receiving oral evidence may provide by way of further enlightenment, that the claim is “bound to fail”: see Lord Collins in Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804, at paras 80 and 82, and Lord Sumption in Brownlie v Four Seasons [2018] 1 WLR 192, at para 5. In Sutradhar v Natural Environmental Research Council [2006] 4 All ER 490 Lord Hoffmann pithily encapsulated the matter in these terms:

“6. I therefore approach this appeal on the basis that the claimant's allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial. The question is whether, on these assumptions, he has a real prospect of success. For this purpose, I shall first set out the facts as alleged in the statement of claim together with some incontrovertible background material which is either contained in the evidence or common general knowledge. I shall then consider whether as a matter of law there is any prospect of the claimant being able to establish a cause of action.”

The Facts

6

What follows is not a narration of the facts that would necessarily be found at any trial but my assessment of the claimant's case taking the available evidence at its reasonable pinnacle and giving her the latitude referred to by Lord Hoffmann. This account also reflects the very pragmatic approach adopted by Mr Robert Bright QC in his oral argument.

7

The vessel, known as the “MARAN CENTAURUS” for the last 13 years of her working life, was from 2004 to August 2017 registered to Centaurus Special Maritime Enterprise (“CSME”), a company incorporated in Liberia and part of the Angelicoussis shipping group. All the shares in CSME are directly owned by another company within the same group, Maran Tankers Shipholdings Ltd (“MTS”), incorporated in the Cayman Islands. Pursuant to an Operating Agreement made on 9th February 2009 between CSME and Maran Tankers Management (“MTM”), a company incorporated in Liberia but with a place of business in Greece, MTM agreed as independent contractor and not as agent to operate and manage the vessel.

8

By an Agency Agreement made between MTM and the defendant on 1 st August 2013, the latter agreed to provide agency and shipbroking services to MTM in respect of 29 vessels. By clause 2 of that agreement, the defendant agreed to carry out a number of functions on behalf of MTM including “to act as chartering broker”, “to collect … all proceeds realised from the employment of the Ships” and “to attend and deal with the insurance of the Ships”. It has been pointed out that the sale of vessels for the purposes of demolition or otherwise may not form part of the defendant's express agency responsibilities under the agreement, but in my view clause 2(k) is probably wide enough to encompass these. What is clear from the Agency Agreement read as a whole is that, as one might expect, the defendant acts under the direction and instruction of MTM.

9

By the summer of 2017 the vessel had come to the end of its useful life and had to be sold for demolition. Rather than deal directly with shipbreakers in India, Pakistan, Bangladesh, Turkey and China, it has been standard practice for decades for shipowners, acting through managers and/or agents, to contract with demolition cash buyers who assume the credit risk. The owners act through brokers or intermediaries — in this case, Clarksons. So it came about that in August 2017 the defendant made enquiries, obtained quotations for the vessel's sale, and conducted the negotiations for the sale. The highest bidder was Hsejar Maritime Inc (“Hsejar”), a company incorporated in Nevis. The sale was to be “as is” in Singapore.

10

On 24th August 2017 CSME agreed to sell the vessel to Hsejar pursuant to a Memorandum of Agreement (“the MoA”). The purchase price was over $16M with Hsejar's obligations under the MoA being guaranteed by Wirana Shipping Corp Pte Ltd, a company incorporated in Singapore and which the claimant contends was the “real” buyer. The defendant was not a party to this agreement. In my view, there is no evidence that the MoA was other than an arms' length transaction made for proper value or that there was any overt collusion between the parties. By clause 22 Hsejar agreed that the sale was to be for demolition purposes only and that it would only sell the vessel to a “ship breaker's yard that is competent and will perform the demolition and recycling of the vessel in an environmentally sound manner and in accordance with good health and safety working practices”.

11

Title to the vessel was in due course transferred to Hsejar and the sums due under the MoA were paid by Wirana in a number of tranches. On 5 th September 2017 Hsejar took delivery of the vessel which was reflagged from Greece to Palau, its name was changed to EKTA, and a new crew was installed: from that moment no entity within the Angelicoussis shipping group had any direct involvement with it. The vessel left Singapore on 22 nd September 2017 and was beached at Chattogram on 30th September. The vessel must have come under the ownership of the yard at about that time but the deceased's employer is not known.

12

The evidence is that the deceased had been working in shipbreaking continuously since 2009. He worked for at least 70 hours a week for low pay in highly dangerous conditions. His fatal accident happened when he fell from a height and sustained multiple injuries.

13

For the purposes of this application only, the defendant accepts that the “beaching” method of demolition carried out in India, Pakistan and Bangladesh since 1960 or thereabouts is an inherently dangerous working practice. The evidence of Ms Ingvild Jenssen and the claimant's expert, Mr Nicholas Willis, demonstrates that this method has been the subject of international concern for years, and they say that the yards in Chattogram are particularly egregious. Para 17 of Ms Jenssen's witness statement, although not specifically directed to working practices at this deceased's workplace, encapsulates these concerns:

“According to the International Labour Organisation (ILO), shipbreaking is one of the most dangerous jobs in the world. When conducted on tidal beaches, without proper infrastructure to allow for rapid emergency response and safe use of heavy lifting cranes, the danger workers are exposed to, of course, increases. Carried out in large part by the informal sector, shipbreaking in South Asia is rarely subject to occupational health and safety controls or inspections. Unskilled migrant workers are deployed by the thousands to break down the vessels manually. Without protective gear, they cut wires, pipes...

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2 cases
  • Hamida Begum (on behalf of MD Khalil Mollah) v Maran (UK) Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 March 2021
    ...Hearing dates: 9 and 10 February 2021 Approved Judgment Lord Justice Coulson 1INTRODUCTION 1 By a judgment dated 13 July 2020 ( [2020] EWHC 1846 (QB)), Jay J (“the judge”) refused the Appellant's application for reverse summary judgment under CPR Part 24.2, and the related application to s......
  • Hamida Begum (on behalf of MD Khalil Mollah) v Maran (UK) Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 March 2021
    ...Hearing dates: 9 and 10 February 2021 Approved Judgment Lord Justice Coulson 1INTRODUCTION 1 By a judgment dated 13 July 2020 ( [2020] EWHC 1846 (QB)), Jay J (“the judge”) refused the Appellant's application for reverse summary judgment under CPR Part 24.2, and the related application to s......
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    ...be based on actual findings of fact, established in Farah v British Airways [1999] All ER (D) 1381 and Begum v Maran (UK Limited) [2020] EWHC 1846 (QB). The factual investigation at trial would assist the court determining whether the alleged regulated activities were connected to the "intr......
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    ...2020, a High Court judgment in Begum v Maran [2020] EWHC 1846 (QB) was handed down where, for the first time, an English court has grappled with the controversial issue of Given recent shipping disasters in Beirut and Mauritius, the judgment is a timely reminder of the law relating to shipp......

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