Holyhead Marina Ltd v Mr Peter Farrer and All Other Persons Claiming or Being Entitled to Claim Damages in Connection with Storm “Emma” Striking Holyhead Marina on 1 and 2 March 2018
| Jurisdiction | England & Wales |
| Judge | Mr Justice Teare,Mr. Justice Teare |
| Judgment Date | 07 July 2020 |
| Neutral Citation | [2020] EWHC 1750 (Admlty) |
| Court | Queen's Bench Division (Admiralty) |
| Docket Number | Case No: AD-2019-000134 |
| Date | 07 July 2020 |
[2020] EWHC 1750 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Teare
Case No: AD-2019-000134
Benjamin Coffer (instructed by Clyde & Co LLP) for the Claimant
James Watthey (instructed by Keoghs LLP) for the Defendants
Hearing dates: 4 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.
In March 2018 Storm Emma hit Holyhead from the North East. The last comparable event was in 1936. A meteorologist has expressed the opinion that “the wind event of 1st/2nd March 2018 was a very infrequent event in the area but was not without precedent. It probably has an average return period of somewhere around once in 50-years.” The Marina in Holyhead harbour was damaged in that the pontoons forming the Marina broke up or became detached. What happened has been described as “the catastrophic breakdown of the entire Marina”. In consequence many craft moored in the Marina were damaged. There is evidence that 89 craft were damaged. It is said, based upon expert evidence, that the design, construction and maintenance of the Marina were defective. In particular, there is no shelter from the North East. Many claims are anticipated and so the Claimant, Holyhead Marina Limited, has issued proceedings seeking a limitation of its liability pursuant to section 191 of the Merchant Shipping Act 1995. The Defendants to that limitation action are the owners of the damaged craft. The claims are said to total some £5 million whereas, according to the Claimant, the limit of its liability is some £550,000. The Defendants resist the claim to limit.
The right to limit liability pursuant to the Merchant Shipping Act 1995 now rarely gives rise to dispute, essentially because the right to limit is “almost indisputable”; see, for example, The Cape Bari [2016] UKPC 20, [2016] 2 Lloyd's Reports 469 at paragraph 14 per Lord Clarke. The right to limit was barred in The Atlantik Confidence [2016] EWHC 2412 (Admlty) but that was a case where the loss was caused by the personal act of the owner with intent to cause such loss by scuttling his ship, see paragraph 317. Perhaps because of the difficulty of barring the right to limit questions now arise as to whether there is, in principle, a right to limit. The Stema Barge II [2020] EWHC 1294 (Admlty) concerned the question whether a company which attended a dumb barge off Dover was “the operator of a ship” and so entitled to limit. This case concerns the question whether the lessee of the marina in Holyhead harbour is the owner of a “dock” and so entitled to limit.
The Claimant, Holyhead Marina Limited, is the lessee of an area of water within Holyhead harbour. That area of water is within the southwest corner of the harbour and provides berths for about 300 small leisure craft. The available depth of water is between 2.3 and 5 metres. It is known as a Marina. To the north is a breakwater and to the east, less than a nautical mile away, is the Irish Ferries Terminal. The parties are agreed that the Marina may be described as an arrangement of floating pontoons for the mooring of small leisure craft which are linked to the land by a bridge. The pontoons (made of concrete and polystyrene) form the shape of a square (with one side open for access) together with smaller pontoons projecting inside the square. They are moored to the seabed using a system of chains and nylon rope connected to concrete weights placed on the seabed. The Marina was built in about 2000. It now appears to be accepted by the Claimant that floating breakwaters — of any size or design – would never survive the wave length or height experienced during Storm Emma.
The Defendants have denied that the Claimant has a right to limit its liability. They say that the Claimant is not the owner of a “dock” within the meaning of section 191 of the MSA 1995. They also say that the Claimant's right to limit, if any, has been lost because the loss and damage resulted from a personal act or omission of the Claimant committed recklessly and with knowledge that such damage would probably result; see Article 4 of the Limitation Convention set out in the MSA 1995 at Part 1 of Schedule 7. Finally they dispute the amount of the alleged right to limit. They say that it in fact exceeds the amount of the anticipated claims.
The Claimant has issued an application seeking to strike out these allegations and/or for summary judgment on their claim for a limitation decree.
The meaning of “dock”
Section 191 provides as follows:
191 Limitation of liability.
(1) This section applies in relation to the following authorities and persons, that is to say, a harbour authority, a conservancy authority and the owners of any dock or canal.
(2) The liability of any authority or person to which this section applies for any loss or damage caused to any ship, or to any goods, merchandise or other things whatsoever on board any ship shall be limited in accordance with subsection (5) below by reference to the tonnage of the largest United Kingdom ship which, at the time of the loss or damage is, or within the preceding five years has been, within the area over which the authority or person discharges any functions.
(3) The limitation of liability under this section relates to the whole of any losses and damages which may arise on any one distinct occasion, although such losses and damages may be sustained by more than one person, and shall apply whether the liability arises at common law or under any general or local or private Act, and notwithstanding anything contained in such an Act.
(4) This section does not exclude the liability of an authority or person to which it applies for any loss or damage resulting from any such personal act or omission of the authority or person as is mentioned in Article 4 of the Convention set out in Part 1 of Schedule 7.
(5) The limit of liability shall be ascertained by applying to the ship by reference to which the liability is to be determined the method of calculation specified in paragraph 1(b) of Article 6 of the Convention set out in Part I of Schedule 7 read with paragraph 5(1) and (2) of Part II of that Schedule.
(6) Articles 11 and 12 of that Convention and paragraphs 8 and 9 of Part II of that Schedule shall apply for the purposes of this section.
(7) For the purposes of subsection (2) above a ship shall not be treated as having been within the area over which a harbour authority or conservancy authority discharges any functions by reason only that it has been built or fitted out within the area, or that it has taken shelter within or passed through the area on a voyage between two places both situated outside that area, or that it has loaded or unloaded mails or passengers with the area.
(8) Nothing in this section imposes any liability for any loss or damage where no liability exists apart from this section.
(9) In this section –
“dock” includes wet docks and basins, tidal docks and basins, locks, cuts, entrances, dry docks, graving docks, gridirons, slips, quays, wharves, piers, stages, landing places and jetties; and
“owners of any dock or canal” includes any authority or person having the control or management of any dock or canal, as the case may be.
There is no dispute that the Claimant was the owner of the Marina within the meaning of section 191, either because it owned a leasehold interest in the Marina or because it had control and management of the Marina.
The crucial question is whether the Marina is a “dock” within the meaning of the section. It is to be noted that neither a marina nor pontoons are mentioned as included within the meaning of dock. But the statutory definition is not exclusive. It states that dock “includes” the structures then listed. Thus structures not specifically listed could be within the ordinary meaning of dock as used in section 191 or within the ordinary meaning of the listed structures.
The Claimant's case is that the Marina is a “dock” within the meaning of section 191(1), and/or that the floating pontoons alongside which craft lie in the Marina can properly be described as “slips”, “quays”, “wharves”, “piers”, “stages”, “landing places” or “jetties” for the purposes of section 191(9). In oral submissions the second way of putting the case was said to be the primary case. Particular reliance was placed on “landing place”, “pier”, “jetty” and “stage”.
The Defendants' case is that the natural and ordinary meaning of “dock” is something of a different nature entirely from the Marina. The usual meaning of “dock” is, it is said, an enclosed body of water used for the loading and unloading of ships, and possibly their repairs. It is submitted that no version of the natural meaning of “dock” or of the structures referred to as being within the statutory meaning of dock can sensibly apply to a marina consisting solely of floating pontoons (as opposed to solid structures and/or structures permanently affixed to the seabed or land, which might arguably constitute a “pier”) or to a pontoon or arrangement of pontoons (especially floating...
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