Offshore injury and governing law
When an accident occurs at sea, which law governs liability for injuries sustained? This recent case demonstrates the court’s approach to this…
Kennedy Paul Sadhana v Fulton Navigation INC – Admiralty Court (Jervis Kay QC, Admiralty Registrar) –  EWHC 1118 (Admlty)
When an accident occurs at sea, which law governs liability for personal injuries sustained by those on board? This recent case, of interest to P&I and pleasure craft insurers, demonstrates the English court’s approach to this question.
The claimant was the first engineer on board the defendants’ ship “Omega King”. The ship was registered in the Marshall Islands and was lying at anchor off the coast of South Wales, within UK waters. On the night in question, there were strong winds and the vessel began to drag her anchor. The master decided to weigh the anchor but the locking pin on the chain stopper became jammed. The claimant was asked to inspect the pin. As he did so a large wave broke over the bow and he was knocked against a nearby bollard sustaining injury. He was taken ashore for hospitalisation, underwent surgery and treatment in Bristol and London and was eventually discharged some five weeks later. He was then repatriated to India where he underwent outpatient treatment.
The claimant’s solicitors commenced proceedings against the vessel’s owners in England. Having been advised by the owner’s P&I Club that they would not accept service on their member’s behalf, they then served a claim form on the owners in the Marshall Islands as well as the ship’s managing agents in Piraeus. However, the owners neither acknowledged service nor challenged the English court’s jurisdiction until the claimant had already obtained judgment in default. Only then did they react, seeking a declaration that the court had no jurisdiction and an order that the default judgment be set aside.
Which law and jurisdiction applied?
The defendants sought to argue that the law and jurisdiction of the Marshall Islands should apply as that was the vessel’s flag state. However, the Admiralty Registrar (Jervis Kay QC) rejected this notion of ships being “floating islands” subject to the law and jurisdiction of the country of their flag. Instead, he considered a number of recent United Kingdom High Court decisions, in particular the Scottish case of MacKinnon v Iberia Shipping Carrier Limited  2 Lloyds Rep 372 (Court of Session), and held that the law and jurisdiction of the country in whose territorial waters the accident occurred, i.e. England, applied. The case of MacKinnon concerned a tortious act on board a UK registered ship where the injury had taken place in the waters of the Dominican Republic: there it was held that the law of flag state is applicable where a ship is in international waters, but not once it has entered territorial waters.
The guiding principle was set out in s.11 Private International Law (Miscellaneous Provisions) Act 1995 which set out the presumption that the governing law was the place where the tort or delict occurred. That would only be displaced under s.12 of the Act if there were strong connecting factors with another jurisdiction.
Forum non conveniens?
However, even if the English court had jurisdiction to entertain the claim, there was still the question as to whether it should nonetheless exercise its discretion in accordance with the principle of forum non conveniens. To this extent, relying on Spiliada Maritime Corp v Cansulex Limited  A.C.460 , the Admiralty Registrar considered there was no great convenience in having the matter heard in India rather than England and disagreed that there was no strong connection to England. In the event that the employment contract was subject to the law of India, then the relevant law could be proved by expert evidence in the English court. Also, oral evidence would only be required from very few witnesses. As such, weighing these matters in the balance, Jervis Kay QC was persuaded that England was the appropriate forum for the determination of the claim.
Ultimately, the Admiralty Registrar took the view that by failing to acknowledge service and indicate an intention to challenge jurisdiction in time, the defendants’ difficulties were very much of their own making in this case. He also believed that the defendants had totally failed to establish that they had any, yet alone a reasonable prospect, of successfully defending the claim. He therefore refused to allow the possibility of any challenge to jurisdiction being brought and the default judgment could not be set aside.
This decision contrasts with the outcome in Hornsby v (1) James Fisher Rumic  EWHC 1944 (QB) – reported in our October 2008 newsletter – where a Welsh crew member employed by an English company was injured on board a Dutch registered vessel in UAE territorial waters. In that case the s.11 presumption of UAE law was displaced in favour of the factually close connection with England.