The Roles of Stema A/S and Stema UK
There was a written agreement between Splitt and Stema A/S for the carriage of the rock on Stema Barge II from Norway to the UK for this project. Although the contract was not in the form of what might be regarded as a conventional charterparty, it was not challenged that Stema A/S was the Charterer. However, there was also evidence from an employee of Stema A/S that he was “an Operator” with “daily responsibility for the operation of barges owned by Splitt”. This individual also followed procedures in a “Barge Operator Manual” which included the fixing of tugs, insurance, surveys at the load and discharge ports and weather routing.
Although Stema UK were the party who contracted with the main railway repairer ashore for the provision of the rock, they also had some involvement with the barge. They provided a Method Statement to the rail repairer which included matters such as the anchorage and transhipment location. They also provided a Safety Statement and other documents, including a Man Overboard Procedure. 2/4
When the barge arrived off the English coast in November 2016, Stema UK placed on board a barge master and a crew member who were operating under a shore based superintendent who was also from Stema UK. Between them, these personnel were responsible for dropping the barge’s anchor and following a
check list which included checking the illumination of navigation lights, the preparedness of the emergency towing wire, ballasting arrangements, the operation of the generators and monitoring the barge’s position.
On the night of the casualty, although the decision to leave the barge at anchor to ride out the storm was ultimately made by the Owners, Splitt, it was based on the conclusion of a meeting on-site which included two people from Stema A/S and two from Stema UK.
On the facts, therefore, it can readily be seen that both Stema A/S and Stema UK had some role in the physical activities on and in relation to the barge. Stema UK argued that the number of activities for which they were responsible was sufficient to amount to management and control and thus they could properly be described as the Operator. In contrast, RTE argued that (i) in fact, Stema A/S was both the Charterer and the Operator, and (ii) Stema UK was, in reality, simply the purchaser of rocks who had to do certain things on the barge to take delivery and these tasks were not sufficient to make them the Operator.
Interpreting Article 1(2) – the meaning of “Operator” and “Manager”
The parties took the Judge to a wide range of sources from which it was said that guidance could be taken in undertaking this exercise in interpretation. These sources included the travaux preparatoire
of the 1976 Limitation Convention, the Australian Federal Court decision in ASP Ship Management Pty Ltd v The Administrative Appeals Tribunal, the wordings of BIMCO’s Shipman contract, various practitioners’ textbooks and industry dictionaries.
It was accepted by both sides in this case that there might be some overlap between the meanings of Operator and Manager.
The Judge concluded that the ordinary meaning of ‘Manager’ in the Limitation Convention is:
“…the person entrusted by the Owner with sufficient of the tasks involved in ensuring that a vessel is safely operated, properly manned, properly maintained and profitably employed to justify describing that person as the Manager of the ship. I put it that way because if a person is entrusted with just one limited task it may be inappropriate to describe that person as the Manager of the ship. A person who is entrusted with just one limited task of management may be described as assisting in the management of the ship rather than being the Manager of the ship.”
In relation to the meaning of ‘Operator’ in the Limitation Convention, the Judge first noted that the meaning of “Operator” would include the Manager and, in many cases involving conventional merchant vessels, there may be little scope for the definition to go further than that. However, this case did not involve conventional tonnage but a dumb barge and so the Judge went further. He concluded:
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