Dredger is not a "ship" within meaning of international arrest convention

NV (plaintiffs) v The Owners and All Persons Claiming an Interest in the Vessel "Von Rocks" (defendants)

Arrest and Detention of Craft - Legality of arrest challenged - Whether craft within category amenable to detention - Statutory definition of "ship" or "vessel" - Whether "used in navigation" - Jurisdiction of Courts (Maritime Conventions) Act 1989 (No 5), section 13(2) - Jurisdiction of Courts and Enforcement of Judgments Act 1993 (No 9) - International Convention on the Arrest of Sea Going Ships, 10 May 1952, article 2 - Lugano Convention 1988, article 24 Merchant Shipping Act 1894 (57 & 58 Vict), section 742 - Muchantile Marine Act 1955 (No 29) Sea Pollution Act 1991 (No 27), section 3(1) - Merchant Shipping (Salvage and Wreck) Act 1993 (No 34) section 2(1).

The High Court (before Mr Justice Barr); judgment delivered 17 January 1997.

FOR a craft to be capable of being used in navigation it must be able to determine its own course, determine its future course, be capable of free and ordered movement and be intended to do its work upon the seas. Otherwise it is not amenable to arrest and detention as provided for by admiralty law in relation to crafts which are classified as "ships" or "vessels".

The High Court so held in acceding to the defendants' challenge to the validity of the detention of the "Von Rocks" and directing its release from arrest.

Denis McDonald BL for the plaintiffs; Colm O hOisin BL for the defendants.

MR JUSTICE BARR said that the plaintiffs had made a claim against the defendants in negligence and breach of contract which would be heard in the Courts of Justice of England and Wales as, pursuant to a towage contract, those courts had jurisdiction to hear and determine the matter. The plaintiffs applied to the Irish High Court seeking an order for the arrest of the "Von Rocks" as it was in Irish territorial waters and claimed the court had jurisdiction to so direct pursuant to Article 2 of the International Convention on the Arrest of Seal Going Ships signed on 10 May 1952 and/or on foot of the Lugano Convention 1988.

Mr Justice Barr described the "Von Rocks" as a type of maritime dredger known as a backhoe dredger used to deepen waters at estuaries and harbours. When in use, legs are lowered hydraulically and it becomes a rigid platform; when not in use the legs are raised and it becomes a floating platform of ten pontoons bolted together. The dredger has no means of self propulsion, cannot carry cargo or passengers save for those engaged in the dredging operation and has one steel cabin containing an office and toilet. When the area within the radius of the excavating arm has been dredged the legs are raised, the dredger towed forward a few metres, the legs repositioned and the dredging process continues. To move the dredger it must be towed unmanned by a power driven vessel or dismantled totally and transported by road.

Mr Justice Barr said that the defendants had challenged the validity of the arrest of the "Von Rocks", saying that it was not a ship within the meaning of section 13(2) of the Jurisdiction of Courts (Maritime Conventions) Act 1989 and therefore not amenable to arrest in respect of a maritime claim against its owners.

Mr Justice Barr said that admirably law provided a plaintiff with a potentially far reaching weapon against an alleged debtor in permitting the arrest and detention of a ship and/or cargo belonging to an alleged debtor as security against any judgement which may be obtained against an alleged debtor. Such an arrest could have serious consequences for an alleged debtor and therefore there was a strong onus on the person seeking the remedy to establish that the craft to be arrested was in fact a ship or vessel as required by the 1989 Act and the 1952 Convention. The definition of what constitutes a ship or vessel was inclusive and non exhaustive. The court was of the view that serious consideration should be given to all suggestions that the category of what qualifies as a ship for the purposes of the legislation should be extended.

Section 13(2) of the 1989 Act says that "ship" includes every description of vessel used in navigation. Mr Justice Barr also noted that the definition of "ship" and vessel" for the purposes of the 1952 Convention also required that it be "used in navigation". This did not necessarily mean that the craft must be capable of self navigation. However, the dredger when in operation was a rigid platform with dredging machinery attached.

Mr Justice Barr was of the view that in determining whether or not a craft was a ship or vessel within the meaning of the 1989 Act and 1952 Convention the court must look at the nature and purpose of the structure when in operation. The backhoe dredger has no capacity for movement when set up for work and must, be towed to the next position or site. Such a craft which has no capacity for self propulsion, is unmanned and has no rudder or steering mechanism cannot be regarded as "being used for navigation". The Court likened the dredger to fixed oil rigs and was of the view that such rigs were not ships.

Mr Justice Barr considered what was meant by "navigation" and referred to Steedman v Scofield [1992] 2 Lloyd's Reps 163. Transportation was inherent in navigation, as was determination of the ship's position, its future course and and its intended destination. Polpen Shipping Company Limited v Commercial Union Assurance Company Limited [1943] 1 All ER 162 was authority for the proposition that a ship or vessel must be capable of free and ordered movement and must be intended to do its real work upon the seas. The "Von Rocks" was not such a craft.

Mr Justice Barr said that more recent legislation extended the concept of ship or vessel and seemed to capture a craft such as the backhoe dredger within the ambit of the concept which indicated that the earlier definitions were considered so restrictive as to exclude such craft from their scope.

A further point which had been raised by the plaintiffs was that some such crafts are normally registered as ships. However Mr Justice Barr said that while there were recognisable advantages to doing so it did not mean that such crafts were ships.

Mr Justice Barr accepted that the craft, the "Von Rocks", was not a ship within the meaning of the 1989 Act and the 1952 Arrest Convention and accordingly directed that it be released from arrest.

Solicitors: McCann Fitzgerald (Dublin) for the plaintiffs; McGuinness (Co Donegal) for the defendants.