Re The "Von Rocks"

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 17 January 1997
• Neutral Citation: [1997] IEHC 198
• Docket Number: [1996 No. 9940P]
• Court: High Court
• Date: 17 January 1997

[1997] IEHC 198

THE HIGH COURT

9940p/1996

TARGE TOWING LTD v. "VON ROCKS"

ADMIRALTY

THE "VON ROCKS"

BETWEEN

TARGE TOWING LIMITED AND SCHELDT TOWAGE COMPANYNV

PLAINTIFFS

AND

THE OWNERS AND ALL PERSONS CLAIMING AN INTEREST IN THEVESSEL "VON ROCKS"

DEFENDANTS

Citations:

JURISDICTION OF COURTS (MARITIME CONVENTION) ACT 1989 S13(2)

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS ACT 1993

INTERNATIONAL CONVENTION ON THE ARREST OF SEA GOING SHIPS ART 2

LUGANO CONVENTION ART 24

MERCHANT SHIPPING ACT 1894 S742

MERCHANT MARINE ACT 1955

HALSBURYS LAWS OF ENGLAND 4ED V43 PARA 91

STEEDMAN V SCOFIELD & ANOR 1992 2 LLOYDS REP 163

POLPEN SHIPPING CO LTD V COMMERCIAL UNION ASSURANCE CO LTD 1943 1 AER 162

MERCHANTS MARINE INSURANCE CO LTD V NORTH OF ENGLAND PERPECTING & INDEMNITY ASSOCIATION 1926 25 LLOYDS REP 446

SEA POLLUTION ACT 1991 S3(1)

MERCHANT SHIPPING (SALVAGE & WRECK) ACT 1993 S2(1)

MAC, THE (1882) 7 PD 126, 51 LJP 81

Synopsis:

Admiralty

Ship arrest - whether backhoe dredger a "ship" for purpose of s.13(2) of Jurisdiction of Courts (Maritime Conventions) Act, 1989 - Held: Backhoe dredger not a ship - not amenable to arrest - (High Court: - Barr J. - 17/01/1997) [1997] 1 IR 236 - [1997] 1 ILRM 542

|The "Von Rocks" - Targe Towing Ltd. & Scheldt Towage Co. N.V. v. The Owners & All Persons Claiming an Interest in the Vessel "VonRocks"|

1 Judgment of Mr. Justice Barrdelivered on the 17th day of January, 1997.

THE FACTS

2 The Plaintiffs have made a claim against the Defendants in negligence and breach of contract arising out of the preparation of the "Von Rocks" by the Defendants for towage by the Plaintiffs from Sweden to Scotland in 1994. Under the terms of the towage contract between the parties the High Court of Justice of England and Wales has jurisdiction to hear and to determine the claims in question.

3 The Plaintiffs" claim in it's action in this jurisdiction is for an order for the arrest of the "Von Rocks", which is presently in Irish territorial waters, under the Jurisdiction of Courts (Maritime Convention) Act, 1989and/or the Jurisdiction of Courts andEnforcement of Judgments Act, 1993. It is claimed that the court ought to assume jurisdiction for that purpose pursuant to Article 2 of the International Convention on the Arrest of Sea Going Ships signed at Brussels on 10th May, 1952 and/or on foot of Article 24 of the Lugano Convention, 1988.

4 Pursuant to an application made ex-parte on behalf of the Plaintiffs, the court by order made on 14th November, 1996 directed the Admiralty Marshal to arrest the "Von Rocks" and keep it under safe arrest. The Marshal duly complied with the order and the "Von Rocks" remains under arrest, though by subsequent order of the court made on consent of all parties, it is permitted to continue working as a dredger on contract in Malahide estuary, Co. Dublin.

5 The nature and purpose of the "Von Rocks" is not in dispute. It is a type of maritime dredger, called a backhoe dredger which is primarily used in harbours, channels or estuaries to deepen the waters at such locations. When not in operation, it is a floating platform comprising ten individual pontoons bolted together. When in use, it is held in position on the seabed by three spud legs which are capable of being hydraulically lowered and raised. When the legs are lowered to the seabed at the site of dredging the platform becomes a rigid structure i.e. it is jacked-up to form a rigid platform and will so remain until the legs are withdrawn and the structure floats again.

6 An excavator is bolted to one end of the platform and is used to excavate spoil from the seabed which in turn is poured into an adjacent barge and taken away from time to time. A backhoe dredger has no bow, no stern, no anchors, no rudder or any means for steering, and no keel or skeg. It has no means of self-propulsion, mechanical or otherwise, and it has no wheelhouse. One end is rounded to facilitate the operation of the dredger. It has a lighting tower to illuminate the deck and to warn passing vessels of it's presence. It has a steel cabinfixed on the platform which contains an office and a toilet. It does not have an ability to carry cargo, spoil or personnel other than those engaged in the dredging operation. While at work it dredges within the radius of the excavator arm. When all spoil within range of the dredger is removed, the spud legs are raised and the dredger is towed forward for a few meters and the legs are repositioned as before. The progress of the dredging operation continues in that way. On completion of a contract, there are two methods whereby a backhoe dredger may be moved to the site of it's next engagement. It may be dismantled and transported by road or, alternatively, towed by sea. Extensive preparations are required to make it seaworthy for towing for any significant distance. When under tow from one contract site to another the dredger is unmanned and plays no part in the performance of the operation. It is merely an inert object being towed by a power-driven vessel. There are other types of dredging barges in common use but they differ from a backhoe dredger in that, although having no means of self-propulsion, they do have rudders and wheelhouses. They carry spoil and usually require some crew on board when being towed from place toplace.

THE ISSUE

7 The Defendants, as owners of the craft, have challenged the validity of the arrest of the "Von Rocks" on the ground, inter alia, that it is not a ship within the meaning of relevant legislation. They have brought a motion seeking the following reliefs

8 (i) An order directing the release of the "Von Rocks"and

9 (ii) an order setting aside the warrant of arrest.

10 The issue before the court is, therefore, whether a backhoe dredger, such as the "Von Rocks", is a "ship" for the purposes of Section 13(2) of the Jurisdiction of Courts(Maritime Conventions) Act, 1989(the 1989 Act) and, therefore, amenable to arrest in respect of a maritime claim against it's owners.

THE LAW

11 The Plaintiffs, in obtaining a warrant for the arrest of the "Von Rocks", have relied on the jurisdiction conferred on this court by the 1989 Act which gives effect in Irish law to the 1952 BrusselsConvention on the Arrest of Sea Going Ships (the ArrestConvention).

12 Article 2 of the Arrest Convention provides that:-

"A ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the contracting states in respect of any maritimeclaim.................."

13 It follows from that provision that the jurisdiction to arrest is confined to a "ship". In Section 13(2) of the 1989 Act that term is defined as follows:-

""Ship" includes every description of vessel used in navigation".

14 The term "vessel" is defined in the same subsection asfollows:-

" "Vessel" includes any ship or boat, or any other description of vessel used in navigation."

15 The latter definition is similar to that found in Section 742 of the Merchant Shipping Act, 1894, and in the Merchant Marine Act, 1955save for the words "not propelled by oars".

16 These definitions, which have had continuous existence in admiralty law in this jurisdiction from 1894, have two common features. First, the definitions of "ship" and "vessel" are inclusive and non-exhaustive. The 1989 Act and it's predecessors do not purport to lay down a universal definition of what constitutes a ship or vessel. A person or body which makes a maritime claim against a ship owner is, for practical reasons, provided in admiralty law with a potentially far-reaching weapon, not found in other aspects of the common law, against the alleged debtor i.e. the prima facie right to obtain an arrest warrant detaining a ship and/or cargo belonging to the latter. The primary objective of such a warrant is to provide the claimant of a maritime debt with a form of security, being the value of the debtor's interest in the ship and/or cargo (or a bond for the sum claimed), for the recovery of the amount of the judgment which may be obtained in that regard and which otherwise might not be recoverable from the ship owner. The arrest of the ship may have far-reaching consequences for the alleged debtor...