Todd v Adams

JurisdictionEngland & Wales
JudgeMance L JJ,Thorpe,Neuberger J.
Judgment Date18 April 2002
Neutral Citation[2002] EWCA Civ 509
CourtCourt of Appeal (Civil Division)
Docket NumberCase Nos: A3/2001/1437
Date18 April 2002
Between
(1) Moira Todd (Widow and Administratix of Peter Todd Deceased and Parent of Kerry Todd, Deceased)
(2) Rosemary Williams (Dependant and Administratix of the Estate of Robert Holmes, Deceased)
(3) Tracy Waters (Widow and Administratix of the Estate of Vincent Marshall, Deceased)
Appellants
and
(1) Godfrey Adams
(2) Malcolm John Chope
Respondents

[2002] EWCA Civ 509

Before

Lord Justice Thorpe

Lord Justice Mance and

Mr. Justice Neuberger

Case Nos: A3/2001/1437

A3/2001/1449

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY COURT

(THE HONOURABLE MR. JUSTICE AIKENS)

ELIZABETH BLACKBURN QC and MICHAEL DAVEY (instructed by Foot Anstey Sargent, Plymouth) for the Appellants

MR. MICHAEL NOLAN (instructed by Nash & Co., Plymouth) for the Respondents

NEUBERGER J:

Introductory

1

The beam trawler "Margaretha Maria" capsized and sank with the loss of all hands in a position about 55 miles south-south-west of Lizard Point some time between 11 th and 17 th November 1997. The tragedy claimed the lives of the Vessel's Skipper, Robert Holmes, her Mate, Peter (known as John) Todd, and two deck hands, Vincent Marshall and Kerry Todd, the son of John Todd. The Vessel had set sail on 11 th November from Newlyn, Cornwall, on a fishing expedition. While the precise cause of the Vessel capsizing is in dispute, it is clear that it was fishing with twin beams, and, at the moment it capsized, both sets of fishing gear were near to, or at, the water's surface. The Vessel capsized, flooded aft, and sank by the stern in the course of hauling her fishing gear.

2

Thereafter, on 16 th May 2000, the appellants, Moira Todd the widow of John Todd and mother of Kerry Todd, Rosemary Williams the partner and dependant of Robert Holmes, and Tracy Waters the widow of Vincent Marshall, began this action. They claim damages under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. The respondents, the defendants to the action, are the then-owners of the Vessel, Godfrey Adams and Malcolm Chope.

3

The appellants contend that the Vessel capsized and sank as a result, inter alia, of its failure to comply with Rule 16 of the Fishing Vessel (Safety Provisions) Rules 1975, SI 1975 No. 330 ("the 1975 Rules"). In this connection, the claimants' case is that the Vessel did not satisfy certain specified stability criteria set out in Rule 16 in "all foreseeable operating conditions". The respondents deny any breach of duty, whether under the 1975 Rules or otherwise. They contend, in the alternative, that they are entitled to limit their liability for any claim for loss of life by virtue of the provisions of section 185 of the Merchant Shipping Act 1995 ("the 1995 Act"), which incorporates Schedule 7. If that is correct, it would effectively limit the liability of the defendants to a sum a little under £150,000.

4

On 6 th December 2000, David Steel J ordered the trial of two preliminary issues. The first preliminary issue arises out of the appellants' claims based on breach of the 1975 Rules, and the respondents' contention (without prejudice to their argument that there was no infringement of the 1975 Rules) that such breach cannot in any event give rise to a civil liability. The second preliminary issue arises out of the respondents' contention (without prejudice to their denial of liability) that they are in any event entitled to limit any claim by virtue of the provisions of section 185 of the 1995 Act.

5

The preliminary issues were framed in this way:

a. "Whether the…[1975] Rules… impose civil liability on persons in breach of the said Rules";

b. "Whether the defendants are entitled to limit their liability pursuant to section 185 of …the [1995] Act."

6

The preliminary issues came on for hearing before Aikens J, who handed down a judgment on 5 th June 2001. On the first issue, he concluded that, even if the appellants established that the respondents were in breach of any of the 1975 Rules, that would nonetheless not of itself afford the appellants a cause of action against the respondents. As to the second issue, he concluded that the respondents could not rely on section 185(1) of the 1995 Act, because each of the deceased members of the crew was on board the Vessel under a "contract of service" governed by English Law. Because the points are of some importance and of some difficulty, the Judge (quite rightly in my view) permitted the appellants to appeal on the first issue and the respondents to appeal on the second issue. Although the two issues arise out of the same tragic event, are raised in the same set of proceedings, and concern the effect of the same Statute, the considerations they involve are entirely distinct. Accordingly, like the Judge, I propose to deal with them separately. I turn, then, to the first preliminary issue.

The first preliminary issue

The 1995 Act and the 1975 Rules

7

The original power pursuant to which the 1975 Rules were made was contained in the Fishing Vessels (Safety Provisions) Act 1970 ("the 1970 Act") whose long title was:

"An Act To Make Further Provision For The Safety Of Fishing Vessels"

The 1970 Act was repealed by the 1995 Act, which, in Chapter II of Part V, substantially re-enacted, albeit with some modifications (immaterial for present purposes), the relevant provisions of the 1970 Act. Given that the differences between the relevant parts of the 1995 Act and the 1970 Act are immaterial for present purposes, I shall confine myself to the relevant provisions of the 1995 Act.

8

Part V of the 1995 Act is headed "Fishing Vessels" and Chapter II is headed "Safety". The first section of that Chapter is section 121, which, so far as relevant, provides as follows:

"(1) The Secretary of State may make rules (in this Chapter referred to as "fishing vessel construction rules") prescribing requirements for the hull, equipment and machinery of United Kingdom fishing vessels of any description…

(2) The Secretary of State may exempt any fishing vessel or description of fishing vessel from any requirement of the fishing vessel construction rules.

(3) He may do so generally or for a specified time or with respect to a specified voyage or voyages in a specified area, and may do so subject to any specified conditions.

(4) A surveyor of ships may inspect any fishing vessel for the purpose of seeing that it complies with the fishing vessel construction rules.

(5) If –

(a) The fishing vessel construction rules are contravened with respect to any vessel; or

(b) A vessel is under sub-section (2) above, exempted from any requirement subject to a condition and the condition is not complied with;

the owner or master of the vessel shall be liable –

(i) on summary conviction, to a fine not exceeding the statutory maximum;

(ii) on conviction or indictment, to a fine."

9

Section 122 of the 1995 Act empowers the Secretary of State to make "fishing vessel survey rules" for the "surveying and periodical inspection of… fishing vessels… for the purpose of ensuring their compliance with the requirements of the fishing vessel construction [rules]". Section 123(1) of the 1995 Act is in these terms:

"If the Secretary of State… is satisfied, on receipt of a declaration of survey in respect of a fishing vessel surveyed under the fishing vessel survey rules, that the vessel complies with such of the requirements of the fishing vessel construction [rules] as are or will be applicable to the vessel, then… the Secretary of State… shall, on the application of the owner, issue a certificate (… a "fishing vessel certificate") showing that the vessel complies with those requirements; and for this purpose any requirement from which the vessel has been exempted under section 121(2) or any other provision of this Act shall be deemed not to be applicable to it."

10

Section 124(1) of the 1995 Act entitles the Secretary of State to "require a fishing vessel certificate which has expired or been cancelled to be delivered up as he directs". Section 124(3) is in these terms:

"The owner or skipper of a fishing vessel to whom a fishing vessel certificate is issued shall forthwith… cause a copy of it to be put up in some conspicuous place on board the vessel, so as to be legible to all persons on board, and to be kept so put up and legible while the certificate remains in force and the vessel is in use."

Section 124(2) and (4) provide that failure to comply respectively with the provisions of section 124(1) and (2), "without reasonable excuse" leads to a fine "on the summary conviction", "not exceeding level 2 on the standard scale".

11

Section 125(1) of the 1995 Act provides:

"No fishing vessel required to be surveyed under the fishing vessel survey rules shall go to sea unless there are in force fishing vessel certificates showing that the vessel complies with such of the requirements of the fishing vessel construction [rules] as are applicable to the vessel."

Section 125(2) provides for a similar penalty as section 121(5) if a fishing vessel goes to sea in contravention of section 125(1). Section 125(3) requires a skipper of a fishing vessel to produce a certificate "on demand" to the Secretary of State, and provides further that "the fishing vessel may be detained until the certificate is so produced".

12

I turn to the 1975 Rules. There are a total of 130 Rules which, together with 25 Schedules, run to 150 pages. Most of the Rules are contained in Part II, the "Fishing Vessel Construction Rules", which is itself divided into 11 parts, each of which relates to different aspects, the first three of which are...

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