Re The "Von Rocks"

• Jurisdiction: Ireland
• Judge: Keane j
• Judgment Date: 22 January 1998
• Neutral Citation: 1998 WJSC-SC 12640
• Court: Supreme Court
• Docket Number: [S.C. No. 1997],62/97
• Date: 22 January 1998

1998 WJSC-SC 12640

THE SUPREME COURT

Barrington J

Keane J

Lynch J

62/97

TARGE TOWING LTD & SCHELDT TOWAGE COMPANY NV v. THE OWNERS & ALL PERSONS CLAIMING AN INTEREST IN THE VESSEL "VON ROCKS"

THE 'VON ROCKS'

Between:

Tarte Towing Limited & Scheldt Towage CompanyNV

Plaintiffs

AND

The Owners and All Persons Claiming an Interest in the Vessel"Von Rocks"

Defendants

Synopsis

Admiralty

Maritime dredger; arrest; release; insurance indemnity claim; arrest of vessel sought in satisfaction of claim; whether dredger should be arrested; whether dredger is a "ship" within the meaning of international law; definition of ship considered; whether concept of "self propulsion" significant in determing characteristics of ship; Jurisdiction of Courts (Maritime Convention) Act, 1989; Art. 2 Arrest Convention, 1952 Held: Von rocks deemed to be a ship within meaning of Convention; arrest of ship ordered (Supreme Court: Barrington J., Keane J., Lynch J.22/01/1998)

Targe Towing Ltd. v. "Von Rocks"

[1998] 3 IR 41 -[ 1998] 1 ILRM 481

1 22nd day of January 1998by Keane j[NEM DISS]

INTRODUCTION

2 The Von Rocks referred to in the title of these proceedings is a dredger. Specifically, it belongs to a category of dredger called a "backhoe" dredger.

3 On the 19th June 1994, the Von Rocks was being towed by a tug called the Jerome Letzer from the port ofÖrnsköldsvik in Sweden to Burnt Island in Scotland. On the afternoon of that day, during the course of its voyage across the North Sea, the Von Rocks capsized and was seriously damaged. It was ultimately towed to Malahide Harbour in County Dublin where it was lying at the date of the proceedings in the High Court and in this court.

4 The first named plaintiff is the operator and the second named plaintiff the demise character of the Jerome Letzer. The insures of the Von Rocks have insituted proceedings in Sweden against the plaintiffs claiming damages, amounting to the insured value of the dredger, on the ground that the damage to it was cause by the neligence of the crew of the Jerome Letzer in the course of the towing. The Swedish court dismissed a claim by the plaintiffs that the insurers were bound to proceed in the English courts, having regard to the terms of the towing contract. For their part, the plaintiffs have instituted proceedings in the High Court in England claiming a declaration that, under the terms of the towing agreement, they are entitled to be indemnified by the owners of the Von Rocks in respect of the claim made by the insurers. They have also claimed in those proceedings the sum of £16,598.51 (Sterling) in respect of the towage services provided by them.

5 On the 14th November 1996, the plaintiffs issued these proceedings, in which they sought the arrest of the Von Rocks and applied ex parte for an order directing the Admiralty Marshal to arrest the Von Rocks and keep her under safe arrest. That order was granted and duly implemented by the Marshal, since which time the Von Rocks remained under arrest. It has, however, been permitted to continue working as a dredger in pursuance of a particular contract at the estuary in Malahide.

6 Following the arrest, the defendants brought a motion before the High Court seeking inter alia an order directing the release of the Von Rocks and setting aside the warrant of arrest. A number of affidavits having been filed on behalf of both the plaintiffs and the defendants, the motion came on far hearing before the Admiralty Judge (Barr J) who, in a reserved judgement, (now reported [1997] (IR 236))held that the defendants were entitled to the relief sought. Heaccordingly ordered that the Von Rocks should be released forthwith and dismissed the proceedings brought by the plaintiffs. From that judgment and order the plaintiffs have now appealed to this court and, as already noted, although the effect of the order was to release it from arrest, it continues to lie at Malahide.

7 The plaintiffs claimed to be entitled to arrest the Von Rocksunder the Jurisdiction of Courts (Maritime Convention) Act, 1989(hereafter "the 1989 Act") and/or the Jurisdiction of Courts and Enforcement of Judgement Act 1993. The Act gives effect in Irish law to the International Convention Relating to the Arrest of Seagoing Ships, signed at Brussels on May 10th 1952 (hereafter "the Arrest Convention"). Article 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 maritime claim. The issue between the parties in this case is as to whether the Von Rocks is a "ship" within the meaning of the Arrest Convention and the 1989 Act.

8 The Von Rocks was described as follows by the learned trialJudge:-

"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 deepan 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 sea bed by three spud legs which are capable of being hydraulically lowered and raised. When the legs are lowered to the sea bed at the site of dredging, the platform becomes a rigid structure i.e. it is jacked-up to form arigid platform and will so remain until the legs are withdrawn and the structure floats again."

"An excavator is bolted to one end of the platform and is used to excavate spoil from the sea bed which in turn is pored 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 its presence. It has a steel cabin fixed 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 respositioned 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 this site of its 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 anthor, 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 form a backhoe dredger in that, although having no means of self-propulsion, they do have ruddersand wheelhouses. They carry spoil and usually require some crew on board when being towed from place to place."

9 It was accepted on the hearing of the appeal that this was, with two qualifications, a comprehensive and accurate description of the VonRocks and of the nature of its operations.

10 While the learned trial judge said that, after the spoil within range of the dredger had been removed, the spud legs were raised and the dredger towed forward for a few meters. We were informed that another procedure can be, and has been, adopted. This involves the lowering of one of the spud legs to the sea bed and the use of that leg, somewhat in the manner of a punt, to propel the dredger forward the necessary short distance to the next work area. To that very limited extent, the VanRocks was capable of self-propulsion. It should, however, be pointed out that there was no evidence of this in the affidavits which were before the learned trial judge. It should also be pointed out that, while the Von Rocks does not carry cargo or passenger in the conventional sense, two of the spend legs are lashed to the deck when it is being towed by sea from one area of operations to another.

11 The Von Rocks is registered in the Swedish Registry of Ships and is thus entitled to fly the flag of Sweden, which is one of the contracting parties to the Arrest Convention.

12 An affidavit was sworn by Mr Dominic Daly, who is an anctioneer involved in marine activities and is also a director of a company which engages in dredging work. He deposed that, in his experience, backhoe dredgers, such as the Von Rocks, have always been registered as ships. He said that, before chartering such a vessel, one would always seek thecorrectshipping certification to ensure that the dredger complied with insurance requirements and marine safety regulations. An affidavit was also sworn by Mr Seamus McLaoughlin, an engineer and ship surveyor, who is the deputy chief surveyor of the Marine Survey Office, a division of the Department of the Marine. His department is responsible for ensuring that statutory requirements (both national and international) in relation to marine safety, pollution prevention and navigational safety are complied with so as to ensure that ships operating in Irish territorial waters have the appropriate certificates. He is also responsible for surveying ships which seek to register under the Irish flag. He said that the category of dredger to which the VonRocks belonged was regarded by the Department of the Marine as a ship and that, accordingly, any such dredger operating within Irish waters would be required to have the appropriate certification. The certificates required are the same as those for any other vessel and, depending on the tonnage, it...