Category: Tort Law

Contribution claims are nothing special: UKSC

Today’s Supreme Court decision in SSAFA v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29 on the applicability of the Civil Liability (Contribution) Act 1978, while eminently sensible, is not of enormous practical significance. Nevertheless it is still worth noting, especially by indemnity insurers.

As long ago as 2000 Harry Roberts, a British forces’ child, suffered a mishap at the time of his birth in Germany, owing allegedly due to the negligence of a midwife employed by SSAFA (behind whom stood the MoD). SSAFA, having been sued in tort, argued that the fault, or at least part of it, was that of the German hospital where Harry had been born, and sought contribution from it. At this point a problem arose. Under the then English conflict of laws rules the contribution claim, like the claim against SSAFA, was governed by German law; and whereas it would have been in time in England under the Civil Liability (Contribution) Act 1978, under the equivalent German law it was statute-barred.

Nothing daunted, SSAFA claimed over in England against the German hospital under the 1978 Act. Moreover, much to the discomfort of conflicts lawyers here, they succeeded, both at first instance and on appeal. The reason was a holding by Soole J and a and a majority of the Court of Appeal, that the 1978 Act by its wording was applicable as a matter of overriding law to all proceedings in England, however tenuous their connection with this jurisdiction, and to that extent excluded any reference to foreign law under what would otherwise be our rules of private international law. This conclusion, it was said, followed both from the fact that the Act provided for contribution arising out of liabilities arising under foreign law, and expressly superseded all other non-contractual rights to contribution.

Such an exercise in projecting the English private law of contribution willy-nilly onto foreigners involved in transactions abroad is of course theoretically possible, given Parliamentary sovereignty. But it seems, to put it mildly, hard to justify such exorbitancy. Moreover it certainly appears nowhere expressly in the 1978 Act, as pointed out by Lord Lloyd-Jones, giving the Court’s judgment. The Court were unanimous in discountenancing the holdings below, and confirmed, much to everyone’s relief (except that of the MoD, who may well now have to foot a much bigger bill than they thought) that there was nothing so special about the 1978 Act. It was simply an ordinary brick in the edifice of English private law, apt like any other to be pulled out where some other system of law fell to be chosen to govern a transaction under the rules of private international law.

Roberts was a pre-Rome II case: but as regards litigation today its upshot is that we are back to art.20 of Rome II, which says that claims for contribution are governed by the same system of law that controls the original claim out of which the contribution claim arose. This could be significant. Take, for example, the case where because of the negligence of one of the investor’s local advisers, a real estate transaction undertaken by an English investor in Ruritania fails or money is stolen from an account held in Ruritania. The indemnity insurers of the adviser now at least know where they stand. Even if they sue in England any claim against others in Ruritania, whether the fraudster or someone else, will fall to be governed by whatever passes for a contribution regime in Ruritania, whether this is more or less generous than the regime here. Simple. And right.

Brexit, the endgame. The Retained EU Law (Revocation and Reform) Bill 2022.

On 22 Sept 2022 the UK Government introduced The Retained EU Law (Revocation and Reform) Bill 2022 which provides for two sunset dates for existing retained EU law. On 31st December 2023, all retained EU law will expire, unless otherwise preserved. Any retained EU law that remains in force after this date will be assimilated in the domestic statute book, by the removal of the special EU law features previously attached to it. The Bill provides a second sunset date by including an extension mechanism for delaying the expiry of specified pieces of retained EU law until 2026. The Bill will also reinstate domestic law as the highest form of law on the UK statute book. In case of conflict with retained EU law domestic law will prevail.

There is very little by way of retained EU law that is relevant to the maritime practitioner. The Brussels Regulation and Lugano Convention both ceased to have effect as at the end of the implementation period. The Port Services Regulation survived but is currently on death row and is the subject of a government consultation as to its repeal.

What does remain, however, are the two conflicts of law regulations, Rome I for contracts and Rome II for tort/delict, both now suitably domesticated as UK law, and also the Rome Convention 1980 which was brought into UK law by the Contracts Applicable Law Act 1990, now amended so that it will continue to apply to existing contracts entered into between 1 April 1991 (the date on which the Rome Convention came into force) and 16 December 2009 (after which Rome 1 replaced the Convention in the relevant EU Member States). 

It is likely that these three pieces of retained law will either be specifically retained, or their expiry delayed until the end of 2026, but who knows? Should they disappear into the sunset, conflicts of law will return to the common law rules for contracts made after the sunset date and the rules in Part III of the Private International Law (Miscellaneous Provisions) Act 1995 for torts committed after the sunset date.

Collision litigation and the ASG forms: if you’re offered proper security, take it and don’t argue.

A nice little ship collision decision from the Court of Appeal this morning.

Suppose you’re a collision defendant, and the claimant has nabbed one of your other ships in port elsewhere. You want your vessel back and agree collision jurisdiction in England under ASG1 and ASG2. Relying on ASG2 (“Each party will provide security in respect of the other’s claim in a form reasonably satisfactory to the other”), you put up reasonable security from your P&I Club. Straightforward? Er … not quite. The other guy sucks on his teeth, says that even if your security is reasonable he doesn’t like it, and on second thoughts he prefers to say “thanks but no thanks” and hold on to your ship instead. You’d be miffed, wouldn’t you?

That was essentially what happened in M/V Pacific Pearl Co Ltd v Osios David Shipping Inc [2022] EWCA Civ 798. After the ASG1 / ASG2 agreement had been signed, collision defendants Pacific Pearl put up security to obtain the release of another vessel of their then languishing under arrest in South Africa. But to their dismay, collision claimants Osios David refused it on the (now admittedly bad) ground that it contained a sanctions clause. Put to sizeable expense as a result of their declining to lift the arrest, Pacific Pearl sued them for damages for breach of contract.

Sir Nigel Teare, having held the security good, slightly surprised the profession by going on to decide that even if it was it made no difference. The ASG2 obliged both sides to offer reasonable security, but said nothing about any obligation on either side to accept it; from which it followed that Osios David had been entirely within its rights to say it preferred to maintain the arrest after all. He therefore dismissed the action: see M/V Pacific Pearl Co. Ltd v Osios David Shipping Inc. [2021] EWHC 2808 (Comm).

This decision has now been reversed by the Court of Appeal, which read the ASG2 undertaking as requiring reasonable security to be both provided and, once tendered, taken up. This was, said Males LJ, implicit in the nature of the ASG1/ASG2 procedure. In place of a collision being litigated potentially worldwide, with arrest being threatened almost anywhere and the rights and wrongs of such arrests being thrashed out wherever they happened to take place, the whole matter should be dealt with by sober argument in London. In short, the whole object of the ASG2 undertaking attached to ASG1 was that such proceedings should, if at all possible, replace arrest rather than leaving it up o a claimant’s discretion.

Alternatively, he would also have been prepared to read the ASG2 undertaking to offer security as comporting, even if it did not say so explicitly, an implied obligation in the offeree to accept it. It did not matter which line one took: in either case, Osios David was in breach of contract and thus liable in damages.

This blog is loath ever to disagree with Sir Nigel Teare. But in this instance, it is our view that the Court of Appeal must be right. This both for the reasons given by Males LJ, and also because, in an era where it is almost invariably envisaged that insurers – whether P&I or H&M or both – will argue the toss over collisions and pick up the eventual tab, arrest should be seen very much as a last resort. Ships are better employed sailing the seven seas earning freight than being used as pawns in expensive transnational litigation; in so far as this decision will in future make this more likely to happen, we welcome it.

Moral: if in doubt, get your own bank account

A straightforward tort case from the Privy Council a week ago, with an equally straightforward message for financial operators, was reported today: Royal Bank of Scotland International Ltd v JP SPC 4 [2022] UKPC 18.

In 2009 Cayman Islands operators JPSPC4 (JP for short) set up an investment fund to make specialised loans to UK lawyers. It employed as “loan originator / manager” a Manx company known as SIOM, owned by two gentlemen called Timothy Schools and David Kennedy. SIOM had a Manx account with the RBS in Douglas. Simplified, the scheme was that loan funds would be fed to SIOM’s account, to be held on trust for JP; SIOM would then disburse them to borrowers and receive repayments on JPSPC4’s behalf. Unfortunately the plan was a disaster. Of something over £110 million transferred to SIOM, the majority allegedly ended up in the hands of Messrs Schools and Kennedy (both of whom are currently on trial for fraud).

JP went into liquidation in 2012. In the present proceedings it sued RBS in Douglas for negligence, alleging that it had known SIOM held the funds on trust, and had missed obvious signs that withdrawals from its account amounted to a breach of that trust. RBS applied for a strike-out. The Manx courts granted it, and JP appealed.

The Privy Council had no hesitation in dismissing the appeal, and rightly so. As it pointed out, the holder of the account at RBS was not JP but SIOM; and while a bank might owe its customer a Quincecare duty (see Barclays Bank plc v Quincecare [1992] 4 All ER 363), there was no respectable indication that any such duty extended to third parties, and certainly not to trust beneficiaries. Furthermore, it made the obvious point that the liability of third parties for assisting in a breach of trust (which was essentially what was alleged against RBS) was under Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 based on proof of dishonesty, which was not alleged here; incautious suggestions to the contrary from Peter Gibson J in Baden v Société Générale [1983] 1 WLR 509, 610-611 were specifically said to be heterodox. There being no other plausible reason to accept a liability in tort here, it followed that the claim had been rightly struck out.

Two comments are in order.

First, financial services companies should now be advised to get their own bank accounts rather than operate through the accounts of nominees. Had JP disbursed funds from an account in its name, perhaps having given drawing rights to SIOM, none of these problems would have arisen.

Secondly, JP could have got a remedy in the present case. There is no doubt that SIOM would have had standing to bring a Quincecare claim against the bank (see Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd [2019] UKSC 50; [2020] AC 1189), and that JP could have claimed against it for breach of trust, put it into liquidation and got the liquidators to pursue RBS. Why it didn’t we don’t know; it may simply be that it viewed such a proceeding as unduly cumbersome and expensive. If so, it seems to have made a pretty costly mistake. Such are the risks of litigation.

Limitation — not everyone who operates a vessel is an operator

At least one P&I Club will, one suspects, be feeling rather rueful after this morning’s Court of Appeal decision in Splitt Chartering APS v Saga Shipholding Norway [2021] EWCA Civ 1880.

The Norwegian Mibau group undertook an operation for Costain, involving the transport and deposit of vast amounts of rock in the sea under Shakespeare Cliff near Folkestone. Getting the rock to the correct place involved towing a loaded dumb barge from Norway and anchoring it where the rock was to be placed. The barge was owned by one Mibau company, Splitt; for internal accounting reasons it was chartered to another such company, Stema AS, which also owned the rock. On arrival the barge was anchored, with a crew put on board employed by a third Mibau company, Stema UK. That crew took orders from, and acted on the instructions of, Stema AS.

Despite ominous weather forecasts, Stema UK’s crew assumed the barge could be safely left unmanned at anchor. They were seriously wrong. She dragged her anchor in a storm and sliced an underwater cable which proved costly to repair. The question arose whether, in a suit by the cable owners, Stema UK could limit its liability. Although clearly not an owner or charterer of the barge under Art.1(2) of the LLMC 1976, it argued that because of its de facto control at the relevant time it had been either a manager or an operator. The cable owners argued that it was neither.

Teare J held Stema UK entitled to limit. (See [2020] EWHC 1294 (Admty), noted in this blog here.) True, because it had lacked executive authority, being under the orders of Stema AS, it could not have been a manager. But it, or rather its employees, had undoubtedly been in physical control of, and had operated the machinery aboard, the vessel; and this meant that it counted as her operator within Art.1(2).

This was a commercially sensible result. It meant that the ability to limit stood to be fairly generously granted to any entity in physical control of a vessel; it also had the extra advantage that corporate groups would not be unduly prejudiced merely because for organisational reasons they chose to parcel out the functions of ownership and physical manipulation to different group entities.

Unfortunately it did not find favour with the Court of Appeal. Phillips LJ, giving the only judgment, took the view that just as an employee would not be an operator in his own right since he acted only on someone else’s orders, an entity physically operating a vessel as the catspaw of another entity was in the same position. It followed that because of its lack of authority to act on its own initiative without contacting Stema AS, Stema UK was liable in full since it was outside the charmed circle of those entitled to limit.

For what it is worth, with the greatest of respect this blog is inclined to prefer the reasoning in the judgment below. We see it as not only commercially rational but also more certain, in that making the status of operator dependent on an estimation of the amount of discretion allowed to an entity seems to encourage some hair-splitting arguments.

But no matter. As Phillips LJ pointed out, the effect of the Court of Appeal’s decision can easily be avoided by making sure that the people physically in charge of a vessel are seconded to, or otherwise technically employed by, the company with the serious decision-making power. No doubt, indeed, as this is being written P&I club lawyers will be sharpening their pencils with a view to drafting the necessary advice to members, and possibly even changes to the rules so as to back up that advice. As ever, a little discreet bureaucratic tinkering can pay big dividends.

Dock brief

In July last year we noted the holding of Teare J that Holyhead Marina came within the dock-owner’s right to limit liability under s.191 of the Merchant Shipping Act 1995. The issue arose because the Marina faced multiple claims from yacht owners following devastation wrought by Storm Emma in 2018.

We approved then, and are happy to say that the Court of Appeal does now. Today in Holyhead Marina v Farrer [2021] EWCA Civ 1585 it confirmed Teare J’s conclusion that while not a dock, the Marina was a landing place, jetty or stage (which are included in the definition of places entitled to limit), and that there was no reason whatever to limit the entitlement to purely commercial port facilities. ‘Nuff said. Marina owners can breathe a sigh of relief, while hull insurers no doubt will mull putting up rates yet again on yachts to mark the loss of another source of subrogation rights.

When is a bill of lading not a bill of lading?

If something looks like a duck, but doesn’t swim like a duck or quack like a duck, then there’s a fair chance it may not actually be a duck. A salutary decision last Friday from Singapore made just this point about bills of lading. You can’t simply assume that a piece of paper headed “Bill of Lading” and embodying the kind of wording you’re used to seeing in a bill of lading is anything of the sort if the circumstances show that the parties had no intention to treat it as one.

The Luna [2021] SGCA 84 arose out of the OW Bunkers debacle, the gift that goes on giving to commercial lawyers with school fees to pay. In brief, Phillips was in the the business of acquiring and blending fuel oil in Singapore, and then supplying it to bunkering companies that would ship it out in barges to ocean-going vessels in need of a stem. One of those companies was the Singapore branch of OW. Phillips sold barge-loads of bunkers to OW on fob terms, with ownership passing to OW when the oil went on board the barge, payment due in 30 days and – significantly – not so much as a smell of any retention of title in Phillips.

When OW collapsed in 2014 owing Phillips big money, Phillips, having given credit to the uncreditworthy, looked around for someone else to sue. Their gaze lighted on the barge-owner carriers. For each barge-load, the latter had issued a soi-disant bill of lading to Phillips’s order with the discharge port designated rather charmingly as “Bunkers for ocean going vessels or so near as the vessel can safely get, always afloat”. The modus operandi, however, had been somewhat at odds with everyday bill of lading practice. The bunkers had in normal cases been physically stemmed within a day or so; OW (while solvent) had paid Phillips after 30 days against a certificate of quantity and a commercial invoice; and the bill of lading had remained at all times with Phillips, and no question had ever arisen of any need to present it to the carriers to get hold of the goods it supposedly covered.

On OW’s insolvency Phillips totted up the bunkers sold by it to OW and not paid for, took the relevant bills of lading out of its safe, and on the basis of those documents formally demanded delivery of the oil from the issuing carriers. When this was not forthcoming (as Phillips knew perfectly well it would not be) Phillips sued the carriers for breach of contract, conversion and reversionary injury, and arrested the barges concerned.

Reversing the judge, the Singapore Court of Appeal dismissed the claim. The issue was whether these apparent bills of lading had been intended to take effect as such, or for that matter to have any contractual force at all. Whatever the position as regards the matters that could be regarded when it came to interpretation of a contract, on this wider issue all the underlying facts were in account. Here the practice of all parties concerned, including the acceptance that at no time had there been any question of the carriers demanding production of the bills before delivering a stem to a vessel, indicated a negative answer.

Having decided that there could be no claim under the terms of the so-called bills of lading, the court then went on to say – citing the writings of a certain IISTL member – there could equally be no claim for conversion or reversionary injury.

This must be correct. Further, given the tendency of businesses to issue documents without being entirely sure of their nature or import, the result in this case needs noting carefully by commercial lawyers throughout the common law world.

A note of caution may also be in order, however, as regards carriers. You must still be careful what documents you do issue. True, the carrier in The Luna escaped liability because all parties accepted that the so-called bill of lading didn’t mean what it seemed to say (indeed, it doesn’t seem to have meant very much at all). But imagine that a bill of lading issued in these circumstances which ends up in the hands of a bank or other financier who is not aware of the circumstances and who in all innocence lends against it. The betting there must be that, as against the financier, the carrier issuing it would take the risk of being taken at its word. And this could be a very expensive risk, particularly since the chances of it being covered by any normal P&I club are pretty remote. Carriers, you have been warned.

Reflective loss — some unfinished business

Life in lugubrious legal lockdown was briefly relieved when last year the Supreme Court in Sevilleja v Marex Financial Ltd [2021] A.C. 39 pruned back the luxuriant growth of the reflective loss rule. To remind you, the reflective loss rule is the principle that you cannot sue X for damages in so far as (i) you are a shareholder in Y Ltd; (ii) Y Ltd could itself have sued X; and (iii) the loss you seek to have made good simply reflects the depreciation in your shareholding due to the damage wrongfully caused by X to Y. Marex had the effect of limiting this restrictive rule rule to claims by shareholders, and scotching the heresy that it extended more generally to any case where X was guilty of a wrong against Y which incidentally cased loss to some third party Z (the claimant in that case being not a shareholder but a mere creditor).

By common consent, Marex left a fair number of loose ends to be tidied up later. In a Cayman appeal today, Primeo Fund v Bank of Bermuda & Ors [2021] UKPC 22, the Privy Council neatly knotted one such, namely that of timing. Granted that a shareholder in Y Ltd cannot sue X for loss reflecting the diminution in his holding in Y Ltd, what is the relevant time: is it when the cause of action arises, or when the claimant sues?

Simplifying as far as possible, Primeo was the Cayman Islands investment arm of the Bank of Austria. In the 1990s it appointed as custodians and investment advisers a couple of companies connected with the Bank of Bermuda, R1 and R2. It was then unlucky enough to be introduced to BLMIS LLC, in effect a unit trust operated by the redoubtable Ponzi fraudster Bernie Madoff. Large sums of money were entrusted by Primeo to BLMIS, most of which (it was found) were immediately appropriated by Mr Madoff and his pals.

In 2007 Primeo’s investment was restructured: its interests in BLMIS were transferred to a separate corporate vehicle, Herald Fund SPC, and in exchange Primeo got shares in Herald. At the same time R1 and R2 agreed to function as custodians and investment advisers to Herald.

Just before Christmas 2008 the Madoff house of cards collapsed, and with it BLMIS. As part of the ensuing litigation, Primeo – itself by then in liquidation – sued R1 and R2 for failing in the years before 2007 to alert it to indications that Mr Madoff was an obvious crook, and thus causing it to entrust more money to him and not to withdraw what it had while the going was good. One defence was reflective loss. R1 and R2 argued that, in so far as Herald could have sued them for loss caused to it (on the basis that they had negligently allowed it to take over assets from Primeo which it was now clear had been of very doubtful value all along), and that because as a result of events in 2007 Primeo’s loss now fell to be reckoned by the diminution of the value of its holding in Herald, the case fell squarely within the reflective loss rule.

The Cayman courts agreed, but the Privy Council was having none of it. It rightly pointed out that since Marex it had been clear that reflective loss was a rule of substantive law, rather than one of damages or title to sue. If so, it followed that the relevant time for seeing whether it applied was the time of the wrong for which compensation was sought. In Primeo, at that time there could have been no question of reflective loss: it was simply a case of allegedly bad advice leading to direct investment in a fraudulent scheme. It was at that moment that Primeo’s rights had crystallised, and nothing that happened later could take them away. It followed that the case was outside the reflective loss principle entirely.

In deciding as it did, the Privy Council had to deal with one awkward decision of the Court of Appeal, Nectrus Ltd v UCP Plc [2021] EWCA Civ 57. In that case, essentially a mirror image of Primeo, a claimant had as a result of allegedly negligent advice invested in securities through a wholly-owned subsidiary. Since the subsidiary could also have sued the adviser, the claim was fairly and squarely within the principle. However, by the time the action was brought the claimant had divested itself of the subsidiary and its holding; and the Court of Appeal had held that this removed the reflective loss bar. However, the Privy Council rightly held that such reasoning could not stand scrutiny, and that Nectrus had been wrongly decided on the point.

It may be that this open discountenancing of Nectrus as wrongly decided will be taken as an express statement that English courts should no longer follow Nectrus, something which since 2016 has been possible in the Privy Council: see Lord Neuberger in Willers v Joyce (No 2) [2018] A.C. 843 at [21]. This blog certainly hopes so. It would be very unfortunate were a judge at first instance to feel constrained to follow Nectrus on the basis that this bound him, whereas a mere decision of the Privy Council (which is not technically an English court) did not. But only time, and the inclination of litigants to put their money where their mouth is, will tell.

“Ever Given” on its way at last.

On Wednesday 7 July the Ever Given was finally released following a ceremony at Ismailia with the signing a settlement of the Suez Canal Authority’s claims for the salvage operation, costs of stalled canal traffic, and lost transit fees for the week the Ever Given had blocked the canal. Local reports suggest that the shipowners will also present the authority with a tug boat.

The amount of the settlement is undisclosed but is thought to be rather less than the $900m initially claimed, which included $300,00 for ‘loss of reputation’. It is possible that the ship may still face tort claims from cargo carried on ships delayed by the incident, particularly if perishable cargo sustained damage due to the delay.

The British horticultural sector will be particularly delighted to receive a much delayed consignment of garden gnomes carried on the vessel.

US Companies win aiding and abetting ATS case in US Supreme Court; but ATS not dead yet.

Nestle Inc v Doe & Others. Certiorari to the US Court of Appeals for the Ninth Circuit. 17 June 2021. Slip opinion.

Six individuals from Mali claimed that they were trafficked into Ivory Coast as child slaves to produce cocoa. They sued Nestlé USA and Cargill, U.S.-based companies that purchase, process, and sell cocoa. The companies did not own or operate farms in Ivory Coast, but did buy cocoa from farms located there as well as provided those farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa. The plaintiffs alleged that this constituted a violation of the law of nations under the Alien Tort Statute, in that the companies had thereby aided and abetted slavery in that they “knew or should have known” that the farms were exploiting enslaved children yet continued to provide those farms with resources and also had economic leverage over the farms but failed to exercise it to eliminate child slavery. Although the resource distribution and the alleged slavery occurred outside the United States, it was argued that suit under the ATS was possible because the companies allegedly made all major operational decisions from within the United States.

Justice Thomas gave the majority opinion in Part I & II of his judgment. Even if all these disputes were resolved in respondents’ favour, their complaint would impermissibly seek extraterritorial application of the ATS. Nearly all the conduct that they say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast. Although the Ninth Circuit let the suit proceed because respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U. S.” allegations of general corporate activity—like decision making—cannot alone establish domestic application of the ATS.

Justice Thomas also gave an alternative reason for his judgment in Part III by finding federal courts should not recognize private rights of action for violations of international law beyond the three historical torts identified in Sosa. He was joined by Justices Gosruch and Kavanaugh.

 Justices Sotomayor, Breyer, and Kagan agreed with Justice Thomas in Parts I & II of his judgment but not as regards Part III.

Justice Alito agreed with Part I of Justice Soyomayor’s judgment that if a particular claim may be brought under the ATS against a natural person who is a United States citizen, a similar claim may be brought against a domestic corporation. dissented because the complaint sought extraterritorial application of the ATS, a question tied to the question whether the plaintiffs should be allowed to amend their complaint so as to reach the question of extraterritoriality. Justice Alito would vacate the judgment below, and remand these cases for further proceedings in the District Court.