Holyhead Marina Ltd v Mr Peter Farrer
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lord Justice Males,Lord Justice Stuart-Smith |
| Judgment Date | 03 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1585 |
| Docket Number | Appeal No. A4/2020/1475 & A4/2020/1603 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1585
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lord Justice Males
and
Lord Justice Stuart-Smith
Appeal No. A4/2020/1475 & A4/2020/1603
Case No: AD-2019-000134
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMIRALTY COURT (QBD)
Mr Justice Teare
Royal Courts of Justice
Strand
London WC2A 2LL
Nigel Cooper QC and James Watthey (instructed by Ince Gordon Dadds LLP) appeared on behalf of the Appellants (the “Owners”)
Robert Thomas QC and Benjamin Coffer (instructed by Clyde & Co LLP) appeared on behalf of the Respondent (“Holyhead”)
Hearing date: 26 October 2021
APPROVED JUDGMENT
Sir Geoffrey Vos, Master of the Rolls:
Introduction
On the night of 1 and 2 March 2018, Storm Emma hit Holyhead on the Isle of Anglesey from a North Easterly direction. The claimant (Holyhead) is the owner of the Holyhead Marina (the Marina), which is located at the Western end of the Holyhead outer harbour. Some 89 craft moored in the Marina and the pontoons making up the Marina itself were damaged. Holyhead brought these proceedings against the defendant owners of the damaged craft (the Owners), seeking a limitation of its liability pursuant to section 191 (section 191) of the Merchant Shipping Act 1995 (MSA 1995).
The question at the heart of this appeal is whether Holyhead is the owner of a “dock” within the meaning of that word as it is used in section 191(1). If the Marina is a dock, as Holyhead argued and Mr Justice Teare (the judge) held, Holyhead can limit its liability to 500,000 units of account, equating to some £550,000. If not, its unlimited liability could be as much as £5 million.
Section 191(9) provides that a 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”. The judge held that it was not correct to say that, in the context of section 191, the Marina was “a dock within the ordinary meaning of that word”, but that the pontoons which made up the Marina were within the statutory definition of “dock”, being landing places, jetties or stages. The issue in this case is whether he was right.
The Owners submit that the judge was wrong to take into account the fact that pleasure craft as well as commercial ships were entitled to limit their liability, when the Owners' point was that the types of structure listed in section 191(9) were all for use by commercial or passenger shipping and not, like marinas, for the mooring of pleasure craft. Marinas, pontoons and moorings were not structures that would have fallen within the definition of dock when the dock owners' right to limit liability was introduced in the predecessor of the MSA 1995, namely the Merchant Shipping (Liability of Shipowners and Others) Act 1900 (the MSA 1900). The section 191(9) definition was not changed to include marinas, pontoons and moorings in 1995. The decision was in conflict with the judge's view that the limitation was aimed at facilitating trade, the ordinary meaning of the words, and the construction and use of the pontoons. The Marina as a whole could not be a landing place, jetty or stage, because it was a collection of pontoons rather than just one. If this were correct, there would anyway be multiple limits of liability, not just one. 1 Moreover, there were good commercial reasons to exclude marinas from the scope of section 191.
In his oral reply, Mr Nigel Cooper QC, leading counsel for the Owners, accepted, in answer to questions from the court, how his case might be encapsulated in a nutshell. In effect, the Owners argued that the Marina is not fairly described as either a dock or any of the terms used in the statutory definition of a dock without stretching the language. That is why the judge had to break down the structure of the Marina to decide that “the pontoons which made up the Marina” were landing places, stages or jetties,
rather than deciding that the Marina itself was a landing place, stage or jetty. This argument is supported by the fact that predominant purposes of a marina are (a) berthing rather than the landing of passengers or goods, and (b) leisure rather than commerceHolyhead submit that the judge was right, and alternatively that the Marina and its constituent parts did indeed constitute a dock or piers or wharves within section 191.
Relevant background
The judge described the location and construction of the Marina as follows at [3]:
[Holyhead] 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. [T]he 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 judge also described the origins of the MSA 1995 at [12] and [16] as follows:
The owners of a dock, as defined in the MSA 1900, were afforded a right to limit their liability “for any loss or damage caused to any ship, or to any goods, merchandise or other things whatsoever on board any ship”. There was common ground as to the reason why this right to limit was granted by Parliament. Prior to the MSA 1900 shipowners were entitled to limit their liability for damage to other ships (and the persons or property on board other ships) but not their liability for damage to other property, including that on land. Section 1 of the MSA 1900 extended the right of a shipowner to limit his liability for any loss or damage caused to property or rights of any kind, whether on land or on water, or whether fixed or moveable, by reason of the improper navigation or management of the ship. Section 2 provided harbour and conservancy authorities and the owners of docks with a right to limit in respect of their liability in respect of any damage to a vessel. [T]his [was] a “reciprocal” right granted to harbour and conservatory authorities and to the owners of docks in return for shipowners having their liability to them limited.
… it is well known that the purpose or object of granting shipowners a right to limit their liability was, in 1733, to promote the increase in the number of ships (see The CMA Djakarta [2003] 2 Lloyd's Reports 50 at paragraph 14 per David Steel J.) and that the purpose of the modern Limitation Conventions was to promote international trade by sea-carriage (see The CMA Djakarta [2004] 1 Lloyd's Reports 460 at paragraph 11 per Longmore LJ.). Whilst it could be said that the grant of a right to limit to dock owners indirectly promoted international trade by sea-carriage (because it led to the shipowners' right to limit being extended) that would not tell the whole story. Dock owners wanted a right to limit their own liability to shipowners if shipowners were to be able to limit their liability to them. Parliament gave both parties their wish.
The legislation
Section 191 provides for “Limitation of liability” as follows:
i) By section 191(1), the section applies in relation to a harbour authority, a conservancy authority and the owners of any dock or canal.
ii) By section 191(2), the liability of any authority or person to which the section applies for any loss or damage caused to any ship, goods, merchandise or other things whatsoever on board any ship shall be limited in accordance with subsection (5) 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.
iii) By section 191(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.
iv) By section 191(4), the 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 [the Limitation Convention 1976] set out in Part I of Schedule 7.
v) By section 191(5), the limit of liability is 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 … read with paragraph 5(1)...
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Marinas Can Limit Their Liability Under The MSA 1995: Holyhead Marina V. Farrer
...The Court of Appeal today handed down judgment in Holyhead Marina v Farrer [2021] EWCA Civ 1585, upholding the decision of Mr Justice Teare that a marina counts as a "dock" for the purposes of section 191 of the Merchant Shipping Act 1995, and is therefore entitled to limit its liability un......
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Marinas Can Limit Their Liability Under The MSA 1995: Holyhead Marina V. Farrer
...The Court of Appeal today handed down judgment in Holyhead Marina v Farrer [2021] EWCA Civ 1585, upholding the decision of Mr Justice Teare that a marina counts as a "dock" for the purposes of section 191 of the Merchant Shipping Act 1995, and is therefore entitled to limit its liability un......