CLAIMS IN REM UNDER NZ ADMIRALTY ACT 1973, S.4(1)(D), (E) AND S.5(2)(B): DAMAGE ‘DONE BY A SHIP’: DAMAGE RECEIVED BY A SHIP: PERSON IN POSSESSION OR CONTROL OF A SHIP: POSITION OF INDEPENDENT CONTRACTOR: NEGLIGENCE: VOLUNTARY ASSUMPTION OF RISK: CONTRIBUTORY NEGLIGENCE: RULE IN RYLANDS V. FLETCHER: NUISANCE: WHETHER APPLICABLE IN MARITIME CONTEXT: BETTERMENT
DMC Category Rating: Confirmed
The claim was issued under the NZ Admiralty Act 1973, ss. 4(1)(d) and (e) and
s.5(2)( b).These sections read as follows:
In addition to claims in negligence, the claimants pleaded causes of action in nuisance and also for breach of the Rule in Rylands v. Fletcher.
Northern Challenger asserted:
a) there was no Admiralty jurisdiction under s.4(1)(d) as the cutting and grinding was not done by the ship but by an independent contractor;
b) that the damage to Ultimate Lady was not damage within s.4(1)(e)
c) that there was no Admiralty jurisdiction under s.5(2)(b) since the cutting and grinding was carried out, not by Northern Challenger, but by an independent contractor who was the person who would be liable in personam and was not the actual or beneficial owner or charterer of Northern Challenger nor was he in possession or control of her when the cause of action arose.
The Northern Challenger also raised the defences of volenti non fit injuria (claimant voluntarily accepted the risk of damage arising from negligence) and contributory negligence.
On the quantum of damages, the Northern Challenger claimed that any damages recovered by the Ultimate Lady should be reduced on grounds of betterment, given that the expected lifetime of the coating with which she had been repainted was longer than that of her paintwork at the time of the alleged damage.
The judge continued that under s.4(1)(e) of the Act, giving the court Admiralty jurisdiction in respect of ‘damage received by a ship’, the phrase ‘damage received’ was wide enough to include ‘damage received by a ship through something other than another ship’. With regard to s.5(2)(b), the judge noted that ‘no claim in rem can arise against Northern Challenger under this head unless the claim arises a) in connection with a ship; and b) where the person who would be liable in an action in personam was the owner or charterer or ‘in possession or control of the ship when the cause of action arose.’
It followed that in this case, no claim in rem would arise against the Northern Challenger unless the Ultimate Lady was able to demonstrate that the workman responsible for the cutting and grinding operations (the person who would be liable in an action in personam) was ‘in possession or control’ of Northern Challenger at the time of the grinding. In fact, Ultimate Lady could not discharge this burden as the evidence showed that the workman in question was an independent contractor who ‘was not in possession or control of the Northern Challenger at the time.’
This finding was also sufficient to dispose of the claim against the Northern Challenger in negligence, but the judge went on to hold that, after an exhaustive examination of both witness and expert evidence, the Ultimate Lady had failed ‘to prove that it is more probable than not that the contamination from which she suffered came from the grinding of the Northern Challenger’s guard rails. There was some evidence of volcanic ash on the instrument tower of Ultimate Lady.
Although the following considerations were not necessary for the judgement, the court held that the defence of volenti non fit injuria failed. ‘Merely berthing at Refit Wharf where such work (grinding and cutting) was undertaken not infrequently by others cannot amount to voluntary assumption of risk of damage from the negligent act of Northern Challenger of which Ultimate Lady complains.’ However, the judge added that, had the claim in negligence of the Ultimate Lady succeeded, he would have held her contributorily negligent to the extent of 25%, by reason of berthing her ‘at a work berth in a construction zone where there were a number of other work berths and where work, including the cutting and grinding of steel, was constantly in progress on a large number of other vessels.’ It was not common for vessels of her class to use Refit Wharf for berthing purposes alone.
The claim under the rule in Rylands v. Fletcher also failed. That case established that ‘the person who for his own purposes brings on his land and collects and keep there anything likely to do mischief if it escapes, must keep it in at his peril and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’ The use of the land must also be ‘non-natural’. The court found that ‘if no case has thought it appropriate to apply the Rule in Rylands v. Flectcher in Admiralty and maritime cases in the 137 years since it was decided, the facts of this case are not such as to warrant any change in the law….The court declines to accept that the claim under the Rule… lies either generally in Admiralty and maritime law or in the factual circumstances of this case. The action in nuisance similarly failed, the court quoting from the headnote to the English case of Hunter v. Canary Wharf Ltd  AC 655, to the effect that ‘it is established law that an action in private nuisance was brought in respect of acts directed against the plaintiff’s enjoyment of his rights over the land so that generally only a person with an interest in land could sue.’
On the issue of betterment, the court considered it unnecessary to consider the question further, ‘since it has long been established that betterment does not lie marine claims.’
Judgment was accordingly given for the defendants.
These Case Notes have been prepared with care, but neither the Editor nor the International and other Contributors can guarantee that they are free from error, nor that they contain every pertinent point. Reliance should not therefore be placed upon them without independent verification. The Editor and the International and other Contributors disclaim all liability for any loss of whatsoever nature and howsoever arising as a result of others acting or refraining from acting in reliance on the contents of this website and the information to which it gives access. The Editor claims copyright in the content of the website.