clr/1988/1988_1_651.pdf

(1988)Fill v. Yacht «Nirvana» Held, dismissing the action:

(1)Inthiscase we are not concerned with what is meantby navigation, because the yacht was notinthe course of sailing.

(2)Although one cannotsay that a precise legal meaning of the term «management» is to be found in the authorities and that as it 5 appears from themitsapplicationdependsonthefacts of each case, one thingis certain,thattheact, neglect or default mustbe onethat directly affects thevessel herself.

(3)Inthe present case, although the fares were needed on board theshipincaseshe found herself indistress, atthetimetheexplosion 10 took place they had nothing to do with the ship, her navigation or management. Action dismissed with costsagainsttheplaintiff. 15 Casessreferred to: TheFerro[1893] P.38; Rowson v. TheAtlantic TransportCo. [1903] 72 L.J.K.B.811; The Glenochil [1896] P. 10; Gosse MillerdLtd. v. Canadian Government Merchant Marine Ltd. [1929] A.C.223; The Tojo Maru [1971J 1All E.R. 1110. Admiralty action. Admiralty action for damages for injuries received by the plaintiff as a result of an accident whilst being employed as a dustman at the L a m a c a Marina. Μ Montanios with A. Cleanthous, for the plaintiff. A. Theophilou, for the defendant. Cur. adv. vult DEMETRIADES J. read the following judgment. On the 13th January, 1984, the plaintiff, who was employed as a dustman at 3 0 the Lamaca Marina,met with an accidentwhen a flare, which had b e e n placed on the quay by a m e m b e r of the crew of the defendant yacht, exploded and seriously injured him o n the left arm and left eye which had to be extracted. 652 2 0 1C.L.R. Fill v. Yacht «Nirvana» - Demetrlades J. -By an admiralty action in rem the plaintiff claims against the defendant yacht damages for the injuries he received. During the hearing of the case, the parties informed the Court that thespecial and general damages towhich the plaintiff would 5 be entitled, on a full liability basis, had been agreed at £11,000.-. However, the defence raised issues by which they question the claim of the plaintiff that he is entitled to be compensated for the injuries he suffered. The issuesthatwere raised by the defence are: 10 A.DoesthisCourthave jurisdiction toentertaintheactionatall, and/or,toentertainan action in rem against the ship? B.Assuming thatissue A above fails-

(1)what is the liability of the defendant in the light of the evidence givenby plaintiff's witness Shiakallis (P.W.3),thePolice 15 Explosives Expert; and

(2)Remoteness of damage. The plaintiff in giving evidence stated that at about 5.30 hrson the 13th January, 1984, he started collecting the refuse that was left by the yachts anchored in the Marina on its quays and that 20 when he reached the berth where the defendant yacht was anchored, he took out of a dustbin that was placed near her a bucket in which there was an open plastic bag, in which there were some articles thathe was latertold thatthey were flares. 2 or 3 similar articles were inthe dustbin outsidethebag, loose. Heput 25 the loose flares, as well as the bucket with the plastic bag on the cart and proceeded to the place where the refuse is gathered for removal by garbage trucks. After he reached thatspot and rested his cartontheground,thethreeloose flares fell ontheground.He then heard a hissing («φύσημα») coming outof one of them. He 30 bentdown topick itupbutas soon as he grasped it,itexploded in his hand.As aresult, hewas injured on the left eye and on the left hand. The plaintiff said that the reason he took the flare was because he thought thatitwas paintina spray container. Itisthecase for thedefence thaton theday before theaccident 35 occurred, the captain of the yacht instructed Anastasis Panteli,a member of her crew, who is the only witness for the defence, to take outwhatever articles there were in the stores of theyachtin ordertopreparehertosail. Panteli,ingivingevidence,saidthathe 653 Demetriades J. RHv. Yacht «Nirvana»

(1988)took outofthe yacht itsrubberboat,theoars,thefenders, thelifejacketsand several coversandplacedthemonthequaynexttothe yachtand on topof these articles,whichhehad removed from the yacht, he placed a bag that contained a number of flares that their use had expired 5 On the following day, thiswitness told me, the Manager of the Manna, who was accompanied by a policeman, visited him and informed him that an accident had taken place as a result of the explosion ofaflare Helookedatthespotwhere hehadplaced the flaresand henoticed thattheyweremissing Hethen informed the 10 Manager thattheflareshad been takenwithout hisknowledge and without hisconsent Thereason, hesaid, thathehad removed the flares from the yacht was because their use had expired and the captain oftheyachthad tomakeinquineswiththemanagementof theManna astowhere todumpthem Thewitnessinsistedthatthe 15 flareswereinabagwhichhehadsecured withapieceofstnngand thattherewerenolooseflaresleftonthespotwherehehadplaced them Asitappearsfrom the evidence givenbyand oronbehalf ofthe plaintiff and of the defendant, flares are articles which are 20 necessary when a ship isindistress, in order tocallfor assistance The issue, however, that poses for decision, and which was raised by the defence, is whether the accident occurred in the navigation or management of the ship or else, the defence submitted, an action inrem againstthe defendant yachtcannot be 25 entertained Counsel for the defendant argued that forthe plaintiff to invoke the junsdiction of the Admiralty Court in rem, the act, neglect or default that caused the injunes of the plaintiff must be an act, neglect or default in the navigation or management of the ship, 30 that isto say itmust be such an act, neglect or default, envisaged by section 1(l)(f) of the Administration ofJustice Act 1956,which isapplicable byourAdmiraltyCourtinadmiraltyactionsbefore it Thissection reads «1 Admiraltyjunsdiction of the High Court

(1)The Admiralty junsdiction of the High Court shallbe as follows, thatistosay,junsdictiontohearanddetermineanyof thefollowing questions orclaims- 654 35 1 C.L.R. 5 10 Fill v.Yacht «Nirvana» Demetriades J (0 any claim tor loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a shiporofthemasterorcrewthereof orofanyotherperson for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default inthe navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage ordisembarkation of persons on, in or from the ship;» In the present case1 am not concerned with what is meant by the word «navigation» in the relevant provision of the Act as the 15 yacht was not in the course of sailing. What I have to decide is whether the flares, once placed on the quay, had anything to do with the management of the yacht. ' English Courtshave,ina number of cases,faced and dealtwith the issueof what isan act,neglectordefault inthe «management» 20 of a ship and in this respect reference, amongst others, may be made to the Ferro, [1893] P. 38, the Glenochil [1896] P. 10, Rowson v. The Atlantic Transport Co., [1903] 72 L.J., K.B811, Gosse Millerd Ltd. v. Canadian Government Merchant Marine Ltd., [1929]A.C.223and the TojoMaru, [1971] 1AllE.R. 1110. 25 30 35 40 In the Gosse MillerdLtd., (supra), Lord Hailsham, in delivering his judgment, cited with approval at pp. 231 and 232 what was held in the Glenochil case and had thisto say of the meaning of the words «management of theship»: «Inthe case of the Glenochil the same twolearnedjudges, sitting as a Divisional Court, held that the words did protect the shipowner for damage done by pumping water into the ballasttankinordertostiffen theshipwithoutascertainingthat a pipe had become broken, and thereby letthewaterintothe cargo.GorellBarnesJ.says:'Therewillbefound astrong and marked contrast inthe provisions which deal with the careof the cargo and those which deal with the management of the ship herself; and I think that where the act done in the management of the ship is one which isnecessarily done in theproperhandlingofthevessel,thoughintheparticularcase the handling isnotproperly done,butisdone forthesafetyof 655 DemetriadesJ. nilv.Yacht«Nirvana»

(1988)theshipherself, and isnotprimarilydone atallin connection with the cargo, that must be a matter which falls within the words 'management ot the said vessel', Sir Francis Jeune says: 'It seems to me clearthat the word 'management' goes somewhat beyond - perhaps not much beyond -navigation, 5 but far enough to take inthisvery classof acts which do not affect the sailing ormovement ofthevessel, butdoaffect the vessel herself.' And referring to his own judgment in The Ferro, he says: 'It may be that the illustration Igave in that case, as to the removal of the hatches for the sake of 10 ventilation, was not a very happy one; but the distinction I intended to draw then, and intend to draw now, is o n e ' between want of care of cargo and wantofcareofthe vessel indirectlyaffecting the cargo.' Theprinciplesenunciatedinthiscasehaverepeatedlybeen 15 cited since withapproval inthiscountryand inAmerica. The same two learned judges applied them in the case of The Rodney, and they were accepted by the Court of Appeal in the case of Rowson v.Atlantic Transport Co. Inthat case the Court of Appeal held that carelessness in handling the 20 refrigerating apparatus of the vessel, resulting in damage to the cargo, must be regarded as falling within the expression, onthegroundthattherefrigeratingapparatuswasusedforthe ship' s provisions as well asfor the cargo, and therefore that negligence in managing itwasnegligence in management of 25 the ship. MyLords,Ido notthink itnecessary ordesirable to discuss whether the Court of Appeal was rightintheir application of the principle in that particular case for reasons which will appear later;Ireterto thejudgment onlybecauseitaccepted 30 as the basis of the decision the construction which had been placed upon the wordsinthecaseof the Glenochil.» In the Glenochil, (supra),atp. 15SirF.H.Jeune, P.,said: «Itissufficient to deal withitas a question of management. Itissaid, however, that the two thingsare one and thesame, 35 and that management and navigation mean the same thing because die management is only in the navigation; and no doubt upon thata formidable argument arises,foritisput upon a dictum,though onlyadictum,of KayL.J.Itissaidthat that learned judge expressed the view that, 'contrasting the 40 656 1 C.L.R. 5 10 15 20 25 30 35 40 FiHv.Yacht«Nirvana» Demetriadeo J. various clauses of the bill of lading, the expression 'faults or errors of navigation or in the management of the vessel' applies rather to faults or errors in sailing the vessel, or in managingthesailingofthevessel,than toamatterofthiskind.' Butwhen one considerswhatthemattertheninquestionwas. namely, that it was something antecedent to the commencement ofthevoyage,althoughpartofthecargohad been put in, and that it was a fault connected with the construction of the ship, or, at any rate, the seaworthy condition of the ship, one sees, Ithink, that what the Lord Justice reallyhad in hismind wasnot a contrast between the management of the vessel while sailing and while lying in harbour, butratheracontrastbetween thestateoftheship,as a matter of seaworthiness, and mismanagement of the ship during the voyage.That, I think, isnot an unreasonable view toputupon theLordJustice' swords;anditseemstomeclear that the word 'management' goes somewhat beyond perhapsnotmuchbeyond -navigation,butfarenough totake in this very class of acts which do not affect the sailing or movement of the vessel, but do affect thevessel herself. This Courthad before itthesamesortofquestioninthecaseofThe .Ferro,and Iadhere to what I said then, that mere stowage is an altogether different matter from the management of the vessel. Itmay be that the illustration I gave in that case, as to the removal ofthehatches forthesake ofventilation,wasnot a veryhappy one;butthe distinction I intended todraw then, and intend todrawnow,isone between wantof careofcargo and want of care ofvessel indirectly affecting the cargo. Theotherargumentwhichwaspassed upon uswasthatthe terms 'management' and 'navigation' under the"provisionsof theHarterActapplyonlytotheperiodofnavigationitself,and that issaid to end when the vessel comes into dock. For that the authority of TheAccomac isrelied on. Itisquite true that inthatcase,wherethewordswere 'navigation inthe ordinary course of the voyage,' itwas held that the navigation ceased when the vessel got into dock. But Ido not see that there is anything in that case to limit the period during which the words now in question are to apply. I do not say whether navigation inthestrictsenseofthetermislimitedtotheperiod duringwhichthevesselissailing-thatistosay,inmotion; but I see no reason for limiting the word 'management' to the period of the vessel being actually at sea. I think it is not 657 Demetriades J . Fill v. Yacht «Nirvana»

(1988)necessary to refer toanyofthe caseswhich limitthe meaning to oe attached to the decision in TheAccomac. I do not think it isnecessary to refer tothe case of The Canon Park,where the voyage washeld byLordHannen nottoconsist merelyof the time during which the vessel was proceeding, nor to the 5 dictum of my learned brother in the case of The Southgate, because, takingthewordsof The Accomac astheystand, they do not go tarenough to place the limitation suggested on the period of management. Itappears to me, therefore, that the judgment of the learned judge was correct. Ithink that here 10 there was a failure inthe management of thevessel;but from the effects of that failure of management of- the vessel the shipowners are exempted by the words of the bill of lading incorporating the HarterAct.» Although one cannot say that a precise legal meaning of the 15 term «management» isto be found inthe authorities and that asit appears from them its application depends on the facts of each case, one thingiscertain inmyview,thattheact,neglectordefault must be one that directly affects the vessel herself. In the present case, although the Hareswere needed on board 20 the ship in case she found herself in distress, at the time the explosion took place they had nothing to do with the ship, her navigation or management. Inthe result, I find thattheplaintiff could notavailhimself ofthe provisions of section l(l)(f) of the Act and bring an Admiralty 25 Action in rem against the defendants. The action is, therefore, dismissed with costs. Costs to be assessed bythe Registrar. Action dismissedwithcosts. 658