Krysia Maritime Inc. v Intership Ltd [QBD (Admiralty)]

JurisdictionEngland & Wales
JudgeTHE HONOURABLE MR JUSTICE AIKENS,Mr Justice Aikens
Judgment Date01 August 2008
Neutral Citation[2008] EWHC 1880 (Admlty)
CourtQueen's Bench Division (Admiralty)
Date01 August 2008
Docket NumberCase No: 20071581

[2008] EWHC 1880 (Admlty)

IN THE HIGH COURT OF JUSTICE

ADMIRALTY COURT

QUEEN'S BENCH DIVISION

Before:

The Honourable Mr Justice Aikens

Case No: 20071581

Between
Krysia” Maritime Inc
Claimants
and
Intership Ltd
Defendants

Mr Chirag Karia (instructed by Davies Johnson & Co, Solicitors, Plymouth) for the Claimants

Mr Stewart Buckingham (instructed by Holman Fenwick Willan, Solicitors, London) for the Defendants

Hearing dates: 23 rd July 2008

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.

THE HONOURABLE MR JUSTICE AIKENS Mr Justice Aikens
1

In this action the claimants, as Owners of the fast support and intervention vessel “KRYSIA”, claimed damages from the defendants, the Owners of the dumb barge “EUROPA”. The claim arose out of an incident on 30 th September 2006, when the number 1 port outer propeller of “KRYSIA” was fouled by a rope and wire attached to the aft end of a Yokohama fender which was secured forward on the portside of “EUROPA”.

2

Following a hearing on 24 th, 25 th and 26 th June 2008, when I sat with Captain D P Richards, Elder Brother of Trinity House, as Nautical Assessor, I handed down judgment on 1 st July 2008. I held that the fouling of the propeller was caused by negligence in the management of “EUROPA”. However, I also concluded (applying section 187(1) and (2) of the Merchant Shipping Act 1995, which replaced section 1 of the Maritime Conventions Act 1911), that the fouling was also caused by fault in the navigation of “KRYSIA”. I concluded that “EUROPA” was 70% to blame and “KRYSIA” 30% to blame. I apportioned liability for any damage and loss to “KRYSIA” resulting from this fouling accordingly,

3

The trial did not deal with issues of damages. The claimants allege that this fouling caused substantial damage to “KRYSIA”'s propeller, gearbox and line shaft resulting in losses of approximately US$ 560,000. Issues of damages will be dealt with at a future hearing.

4

When judgment was handed down, Mr Stewart Buckingham, appearing for the defendants, indicated that he wished to submit that the defendants should only have to pay a proportion of the claimants' costs. He wished to argue that this would be in accord with longstanding practice in Admiralty Court cases, which should be continued now, after the advent of the CPR. Mr Buckingham invited me to consider a number of cases. As this submission seemed to me to involve a point of principle, I fixed a separate date to hear argument. I heard the submissions of counsel in the afternoon of 23 rd July 2008. At the end of the afternoon there was insufficient time to give judgment, which I am now handing down.

5

Since this judgment was prepared, I have been informed by the parties that they have settled the issue of costs of the liability hearing. However, as I have dealt with the point of principle raised by Mr Buckingham, I asked the parties if they would agree to judgment being handed down in any event. They have done so.

The CPR

6

Both parties agree, as is obvious, that the starting point for any discussion on costs must be CPR Part 44.3. The relevant parts of this provide:

“44.3

(1)The court has discretion as to –

(a)whether costs are payable by one party to another;

(b)the amount of those costs; and

(c)when they are to be paid.

(2)If the court decides to make an order about costs –

(a)the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)the court may make a different order.”

(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –

(a)the conduct of all the parties;

(b)whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c)any payment into court or admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.…………..

(5)The conduct of the parties includes –

(a)conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol;

(b)whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)the manner in which a party has pursued or defended his case or a particular allegation or issue; and

(d)whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

(6) The orders which the court may make under this rule include an order that a party must pay –

(a)a proportion of another party's costs;

(b)a stated amount in respect of another party's costs;

(c)costs from or until a certain date only;

(d)costs incurred before proceedings have begun;

(e)costs relating to particular steps taken in the proceedings;

(f)costs relating only to a distinct part of the proceedings; and

(g)interest on costs from or until a certain date, including a date before judgment.

(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).

(8) Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed.

(9) Where a party entitled to costs is also liable to pay costs the court may assess the costs which that party is liable to pay and either –

(a)set off the amount assessed against the amount the party is entitled to be paid and direct him to pay any balance; or

(b)delay the issue of a certificate for the costs to which the party is entitled until he has paid the amount which he is liable to pay.”

7

Both counsel accept that when a court has to consider what costs order to make following a trial, the first question to be considered under the CPR costs regime is: which party has been “the successful party” within CPR Pt 44.3 (2). That has been interpreted to mean: “which party has really won at trial?” (See: Fleming v Chief Constable of Sussex Police Force [2004] EWCA Civ.643at paragraph 35 per Potter LJ). Once this issue has been decided the court can then consider whether or not the general rule in CPR 44.3 (2)(a) should apply, so that the unsuccessful party has to pay the costs of the successful party, or whether it should make a different order under CPR Pt 44.3(2)(b).

8

As a matter of construction of CPR Part 44.3, I think it is clear that the judge has a general discretion on how to deal with costs if he decides that, on the facts of the case, it would not be appropriate to follow the “general rule” under Pt 44.3 (2)(a). If the general rule is not followed, a judge may often follow an “issue based” approach to costs and, if that is done, then it has to be justified. In that case the judge has to show that he has taken into account the factors indicated in Pt 44.3(4) and (5), to the extent relevant to the case in hand. A number of Court of Appeal cases have explained the application of those paragraphs.

9

However, as I understand the wording of Pt 44.3, a judge's discretion is not to be confined to a choice between making either an order that the unsuccessful party must pay the successful party's costs, or making an “issues based” order for costs. Such a confinement would, it seems to me, to be contrary to the plain wording of both Pt 44.3(2)(b) and Pt 44.3(6). But, if a judge does not make an order under the general rule in Pt 44.3(2)(a), and does not make an “issue based” costs order, using what Chadwick LJ has called “a conventional issue based approach”, 1 then the basis of any other approach has also to be justified. Moreover, it has to take into account only those matters referred to in Pt 44.3 and must not take into account irrelevant matters.

10

With that general introduction, I can now consider the arguments of the parties.

The defendants' arguments and the Admiralty cases

11

Mr Buckingham, for the defendants, accepts that in this case the claimants constitute the party who has “really won at trial” on the issue of liability. Despite that, his submission is that the court should not adopt the general rule in CPR 44.3(2)(a) in this case. He submits that the court should, instead, make a different order, for two reasons: first, because the court has held that the claimants were 30% to blame for the fouling of the propeller. Secondly, because of the longstanding practice in the Admiralty Court that costs should reflect the court's decision on the degree of blame which attaches to each of the parties, applying the provisions of section 187(1) and (2) of the Merchant Shipping Act 1995, which provisions were formerly found at section 1 of the Maritime Conventions Act 1911.

12

Section 187 of the Merchant Shipping Act 1995 provides:

“(1) Where, by the fault of two or more ships, damage or loss is caused to one or more of those ships, to their cargoes or freight, or to any property on

board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault.

(2). If, in any such case, having regard to all the circumstances, it is not possible to establish different degrees of fault, the liability shall be apportioned equally”

13

As I pointed out in my judgment on liability, section 1 of the Maritime Conventions Act 1911 and so now section 187(1) and (2) of the Merchant Shipping Act 1995, have been applied to cases where there has been no collision, but damage has been done to one ship by the “fault” of another ship in its navigation or management. See: the “NORWHALE” [1975] 1 QB 589.

14

Mr Buckingham referred me to a large number of collision cases which had been decided before the CPR came into force. In these cases, the court had...

To continue reading

Request your trial
2 cases
1 firm's commentaries

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT