Applying the Judge’s principles to the Facts
“Those who cause an unmanned ship to be physically operated have some management and control of the ship. If, with the permission of the Owner, they send their employees on board the ship with instructions to operate the ship’s machinery in the ordinary course of the ship’s business, 3/4 they can, I think, be said to be the Operator within the ordinary meaning of that phrase, though they may not be the Manager of it.”
The Judge also made the perhaps obvious observation that the fact that Article 1(2) expressly includes both the words “Operator” and “Manager” of itself suggests the possibility that there might be parties who would qualify as an Operator but not as a Manager.
In arriving at the above quoted definition, the Judge also noted that the ordinary meaning of the word “Operator” should be understood in the light of the object and purpose of the Limitation Convention. In this respect, he noted that if a dumb barge is used in an operation such as this it would have to be anchored on arrival and, ordinarily, the Owner would have to arrange for the steps to be taken to do that. It would not encourage international trade by sea, he said, if an Owner could limit its liability for losses which arose through the negligent performance of that task but that a third party engaged for the same tasks could not.
It was clear that Stema UK could not be considered to have been the Operator at any stage prior to the barge’s arrival off the English Coast. It was also clear that Stema A/S retained some operational role after the barge was anchored. However, the Judge recorded that once the barge arrived on site, Stema UK had “a real involvement” with the barge, including anchoring and ballasting. The only personnel who went on board while she was at anchor were employees of Stema UK. Of equal, or perhaps even greater, significance was that while the ultimate decision to leave the barge at anchor on the night of the casualty was taken by the Owner, Splitt, it was a decision based on the advice from Stema UK personnel on site.
Taking all of the evidence as a whole and in the round, the Judge found that the nature of Stema UK’s operation of the barge during the relevant period was such as to make it appropriate to describe them as the Operator and thus entitled to limit their liability.
In reaching the above conclusion, the Judge rejected RTE’s argument that the use of the word “the” ahead of “Operator” in the Convention suggested that there could be only one Operator. He did also note, however, that the facts would have to demonstrate that, as in this case, the division of operational tasks was sufficient to make it appropriate to describe both parties as Operators.
70 | The Report • December 2020 • Issue 94 Observations
Whilst, on the face of it, this case may be of greater potential interest to parties in the offshore sector than the conventional blue water fleets, as RTE discovered in this case, in the world of marine casualties one can never choose who or what you may, quite literally, come into contact with so it ought to be of general interest.
While the judgment provides a comprehensive and, one might say, common sense analysis of the Limitation Convention, it raises the obvious question: how many tasks (and perhaps of what nature) does it take to be an Operator? In this case, that appears to have been a relatively easy decision but it could be more challenging in cases with different fact patterns. 4/4
In the context of fact pattern in this case, it is worth noting the extent of detail to which the contemporaneous documents and witness statements were scrutinised by the Judge in arriving at his conclusion. There was no single piece of evidence which alone pointed definitively towards the conclusion which is why the Judge was at pains to say that he was “taking all of the evidence as a whole and in the round”. This approach is worth keeping in mind at the evidence gathering stage of any future casualty which has the potential to follow a similar path to this case.
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