Hello operator? Limitation of liability and operator of dumb barge.

 

Splitt Chartering APS & Ors v Saga Shipholding Norway AS & Ors [2020] EWHC 1294 (Admlty) (22 May 2020)   involves a limitation action in connection with an underwater cable carrying electricity from France to England which was allegedly damaged by the anchor of the dumb barge STEMA BARGE II. The cable owners, RTE, accepted that the registered owner and a charterer Stema Shipping A/S could limit, but did not accept that the third party it had in its sights, Stema Shipping (UK) limited, a company said to be the operator of STEMA BARGE II whilst it was at anchor off Dover, was entitled to limit liability under the Limitation Convention 1976.

A shipment of rock armour, to be used for repairing the storm damage to the Dover to Folkestone railway line in December 2015, was transported from a quarry in Norway on the barge STEMA BARGE II. The barge arrived off Dover under towage on 7 November 2016, was anchored and then the tug departed. Storm force winds of up to force 9 from Storm Angus were forecast and it was decided to let STEMA BARGE II ride out the storm. STEMA BARGE II began to drag her anchor and at 0634 on 20 November 2016 an undersea cable (cable 12) supplying electricity from France to England registered a tripping.

Stema UK had placed a barge master, Mr. Zeebroek, and crewmember, Mr. Hayman, on board STEMA BARGE II, under a superintendent ashore, Mr. Upcraft. Could Stema UK limit as an operator of the vessel? RTE argued that the operator of a vessel is the person or entity which has “direct responsibility for the management and control of the ship” as regards “the commercial, technical and crewing operations of the ship.” – and that person was Stema A/S, not Stema UK.

Teare J considered that Stema UK were not “the manager of the ship” which would be the person entrusted by the owner with sufficient of the tasks involved in ensuring that a vessel is safely operated, properly manned, properly maintained and profitably employed to justify describing that person as the manager of the ship. A person who is entrusted with one limited task of management may be described as assisting in the management of the ship, rather than as being the manager of the ship.

However, it could qualify as the “operator” of the ship. For the purposes of article 1(2) of the 1976 Limitation Convention, “the operator of a ship” was not intended to cover those on board the vessel physically operating the vessel’s machinery, but imported a notion of management and control over the operation of the ship. Those who cause an unmanned ship to be physically operated have some management and control over the ship and could be said to be its operator, if with the owner’s permission they send their employees on board the ship with instructions to operate the ship’s machinery in the ordinary course of the ship’s business.

The use of the definite article “the” and the singular form of “operator” did not mean that there could be only one “operator”. The definite article was also used in relation to owner and charterer; yet there could be more than one owner, because there can be co-owners, and there could be more than one charterer, because there could be a time charterer and a voyage charterer.

From the barge’s arrival off Dover on 7 November 2016 to the date of the damage to the cable on 20 November 2016, Stema UK had a real involvement with STEMA BARGE II. Not only did its employees anchor her but they prepared the barge for lying safely at anchor. During the discharge operations they operated the barge’s machinery so as to ensure that she was safely ballasted. No personnel of Stema A/S were on board; only personnel of Stema UK (though not permanently because there was no accommodation on board the barge).

Even if Stema UK, as receiver/buyer of the cargo were obliged on the facts of this case to anchor and secure STEMA BARGE II that conduct still amounted to the operation of Stema Barge II. They provided a service of operating STEMA BARGE II in circumstances where there was no-one else to operate her.  The role of Stema UK was limited both in time and in the scope of its activities, but then the scope of the activities required to operate a dumb barge are necessarily limited.

Accordingly, the nature of Stema UK’s operation of STEMA BARGE II off Dover was such as to make it appropriate to describe Stema UK as the operator of the barge off Dover.

Published by

Professor Simon Baughen

Professor Simon Baughen was appointed as Professor of Shipping Law in September 2013 (previously Reader at the University of Bristol Law School). Simon Baughen studied law at Oxford and practised in maritime law for several years before joining academia. His research interests lie mainly in the field of shipping law, but also include the law of trusts and the environmental law implications of the activities of multinational corporations in the developing world. Simon's book on Shipping Law, has run to seven editions (soon to be eight) and is already well-known to academics and students alike as by far the most learned and approachable work on the subject. Furthermore, he is now the author of the very well-established practitioner's work Summerskill on Laytime. He has an extensive list of publications to his name, including International Trade and the Protection of the Environment, and Human Rights and Corporate Wrongs - Closing the Governance Gap. He has also written and taught extensively on commercial law, trusts and environmental law. Simon is a member of the Institute of International Shipping and Trade Law, a University Research Centre within the School of Law, and he currently teaches at Swansea on the LLM in:Carriage of Goods by Sea, Land and Air; Charterparties Law and Practice; International Corporate Governance.

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