The Marine Survey Office v D'Amico Societá Di Navigazione t/a MV Cielo Di Monaco

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 30 November 2018
• Neutral Citation: [2018] IEHC 674
• Docket Number: [RECORD NO. 2018 118 C.A.]
• Court: High Court
• Date: 30 November 2018

BETWEEN

THE MARINE SURVEY OFFICE, DEPARTMENT OF TRANSPORT, TOURISM AND SPORT

APPELLANTS

AND

D'AMICO SOCIETÁ DI NAVIGAZIONE T/A MV CIELO DI MONACO

RESPONDENT

[2018] IEHC 674

[RECORD NO. 2018 118 C.A.]

THE HIGH COURT

Notice of detention – Points of law – Port state control – Appellants seeking to appeal on points of law from a decision of the Circuit Court – What constitutes a deficiency pursuant to Article 19(2) of the Port State Control Directive (Directive 2009/16/EC) and/or Regulation 16(1) of the European Communities (Port State Control) Regulations 2010 (S.I. No. 656 of 2010) sufficient to detain a vessel?

Facts: The appellants, the Marine Survey Office (MSO), appealed to the High Court pursuant to Regulation 17(5) of the European Communities (Port State Control) Regulations 2010 (S.I. No. 656 of 2010) on a number of points of law from a decision of Judge McDonnell in the Circuit Court of 25th July, 2017. The specified questions of law were in the following terms: (1) What constitutes a deficiency pursuant to Article 19(2) of the Port State Control Directive (Directive 2009/16/EC) and/or Regulation 16(1) of the 2010 Regulations sufficient to detain a vessel? Further thereto: - (a) are the requirements stated in Annex X of the Directive applicable solely to Article 19(3) or both Article 19(2) and 19(3)? (b) if Annex X of the Directive applies to Article 19(2) and 19(3), does the detention requirement under Annex X of “ships which are unsafe to proceed to sea” and deficiencies which are “sufficiently serious to merit an inspector returning to satisfy himself that they have been rectified before the ship sails” meet the requirements stated in Article 19(2)? (2) What is the applicable standard for reviewing the exercise of professional judgment by an inspector to detain a vessel in accordance with Article 19(3) and Annex X of the Directive? (3) What constitutes “accidental damage” under Annex X? Without prejudice to the generality of the foregoing: - (a) what constitutes submitting “details of the circumstances of the accident and the damage suffered and information about the required notification of the Flag State administration” to the Port State Control Authority? (b) is the aforementioned reporting requirement met by reporting details of the accident and damage suffered to a state body/authority other than the Port State Control Authority? (c) what constitutes “voyage to a port” and “prior to entering a port” and/or does “accidental damage” cover damage occurring in a port? (4) Does a vessel undergoing temporary repairs negate or impact upon the requirement to detain under Annex X?

Held by McDonald J that the questions that were the subject of the appeal were all rather abstract questions relating to the interpretation of the Directive; none of the questions specifically addressed whether there was a basis for the Circuit Court to reach a conclusion that the detention of the vessel was unjustifiable and they were not tied down to any identified aspect of the judgment under appeal but were self-standing questions. McDonald J held that the questions were moot in the sense explained by McKechnie J in Lofinmakin v Minister for Justice, Equality and Law Reform [2013] 4 IR 274 at p. 298 where he said: “A case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties”. McDonald J held that the questions pre-supposed a state of affairs that did not fully reflect the evidence available to the Circuit Court (on which the Circuit Court judge clearly relied).

McDonald J held that there was no basis to interfere with the decision of the Circuit Court judge. McDonald J therefore refused the appeal by MSO and affirmed the order of the Circuit Court allowing the appeal of the respondent, D'Amico Societá Di Navigazione, against the validity of the Notice of Detention dated 30 September, 2015.

Appeal refused.

JUDGMENT of Mr. Justice Denis McDonald delivered on the 30th day of November, 2018.

Introduction

1 This is an appeal on a number of points of law from a decision of her Honour Judge Petria McDonnell in the Circuit Court of 25th July, 2017. The appeal is brought by the above named appellants (‘MSO’) pursuant to Regulation 17(5) of the European Communities (Port State Control) Regulations 2010 ( S.I. No. 656 of 2010) (‘the 2010 Regulations’).

2 Before attempting to address the legal issues which arise on this appeal, it may be helpful in the first instance to describe the chain of events which ultimately led to this appeal.

3 As recorded by the learned Circuit Court judge in her judgment, the Motor Vessel Cielo di Monaco (‘the vessel’) is a ship registered in Malta under the Maltese Flag. The vessel is owned by an Irish registered company and is managed by an Italian company (the above named respondent) (‘DSN’). The vessel was constructed in 2014. She is a bulk carrier of 25,303 gross tonnes.

4 On 27th September, 2015 the vessel entered Greenore Port in Co. Louth for the purposes of discharging part of her cargo. Pilotage is compulsory in Greenore Port. The vessel duly took on a pilot who guided the vessel to a berth at the port. According to the judgment of the learned Circuit Court judge, the berthing position of the vessel was identified in conjunction and in consultation with the pilot and with the aid of a linesman ashore. It should be noted at this point that the vessel is 180m in overall length with a bulbous bow and a draft ranging from 5.19 to 7.98m. Dredging had been carried out at the port to provide a deep water berth but it transpired that no dredging had occurred in the inner area of the berth over which the bulbous bow of the vessel was berthed. Early on the following morning (28th September, 2015) the crew noticed that there was an ingress of water to the vessel. It was established that this was caused by cracks in the steel plating of the vessel resulting from the bow of the vessel having grounded on the lowering tide in circumstances where there was insufficient depth of water under her bow.

5 The Master of the vessel notified a number of relevant organisations and bodies of the damage done to the vessel. These included the Protection and Indemnity (‘P&I’) Club, the relevant classification society for the vessel, the Maltese Flag State Administration, the local port company and local port surveyors. It should be noted that Greenore is (rather unusually) a privately owned port. The P&I Club surveyor, Mr. Eugene Curry also reported the damage to the Marine Casualty Investigation Board (‘the MCIB’) by visiting the offices of the MCIB in the Department of Transport in Leeson Lane, Dublin 2. It is conceded that no notice was given to the MSO which is designated as the competent authority in the State for the purposes of the 2010 Regulations and the Port State Control Directive (namely Directive 2009/16/EC) (‘the Directive’) (both considered in some detail below).

6 The visit by Mr. Curry to the office of the MCIB took place on the morning of 29th September, 2015. On the following day, Captain Black of the MSO boarded the vessel with a notice of detention issued under Regulation 16 of the 2010 Regulations. There was no evidence before the Circuit Court as to how the MSO came to hear of the occurrence described above but it should be noted that the MSO, in common with the MCIB, has its office at the Department of Transport in Leeson Lane. The notice of detention had been pre-prepared but before issuing the notice, Captain Black inspected the damage to the vessel.

7 In the documents issued by him with the notice, three grounds were relied upon by Captain Black for the detention. Two of these grounds related to the failure to report the damage to the hull to the MSO. The remaining ground was the damage sustained to the hull of the vessel. The notice required that this damage should be repaired before departure of the vessel from Greenore. Although, this was not stated in the notice of detention or in the accompanying documents, Captain Black, in the course of his evidence on affidavit before the Circuit Court, said that he considered that there was an immediate and serious threat to the safety of the ship and to the marine environment as a consequence of two splits which he noted had occurred to the hull plating. He took the view that once the hull was breached, the vessel was no longer in compliance with the SOLAS Convention or the International Load Line Convention. He also said, on affidavit, that he considered that detention was the only option available to ensure the safety of life at sea and to protect the marine environment from the risk of pollution. As described in more detail in paras. 10 and 13 below, this evidence was disputed by DSN in the Circuit Court.

8 It appears from the evidence before the Circuit Court that the repairs on the vessel were completed on 7th October, 2015. The Detention Order was subsequently lifted by Captain Black on 9th October, 2015.

9 In the meantime, on 8th October, 2015 a Notice of Appeal was filed by DSN in the Circuit Court seeking to appeal the Detention Order. A right of appeal to the Circuit Court is given to the owner or operator of a ship under Regulation 17 of the 2010 Regulations.

10 In the initial affidavit grounding the appeal, Mr. Domenico Savio Taiano of DSN contended that the detention of the vessel was unnecessary and disproportionate and submitted that the MSO had failed to ensure that the interference with the movement of the vessel was kept to a minimum. Mr. Taiano claimed that the fact that the Detention Order was not lifted until 9th October, 2015 interfered with the vessel's schedule and caused consequential financial loss to the owners of the vessel. He also said that the Detention Order has a very negative effect on the commercial exploitation of the vessel...