17 July 2020 by

Begum v. Maran (UK) Ltd [2020] EWHC 1846 (QB)

On 30 March 2018, while engaged on the demolition of an oil tanker on the seashore at Chittagong, Bangladesh, Mr Mollah fell to his demise.

There may be highly effective proof that primarily guide ship breaking of this type is extraordinarily unsafe and carries environmental danger given the asbestos and heavy metals aboard: see e.g. the work of NGO Shipbreaking Platform here. It doesn’t take way more than a look on the images to understand the issue. Situations have been grim; Mr Mollah was working not less than 70 hours every week for lengthy pay. Some 200,000 employees are thought to work underneath these circumstances.

However this litigation is occurring within the UK Courts. Mr Mollah’s widow didn’t even know the title of her Bangladeshi employer and she or he didn’t sue the proprietor of the “yard” there – in follow, the seashore.

Her declare is towards a British firm which had been concerned with the vessel. Explaining “concerned” is itself concerned, so bear with me, as that is necessary.

The vessel had been registered to a Liberian firm, CSME, a part of the Angelicoussis transport group. CSME was itself owned by Maran TS, a Cayman firm. CSME appointed MTM (a Liberian firm additionally within the group) as an impartial contractor to function the tanker. MTM in flip appointed the defendant UK firm (additionally within the group) to offer company and shipbroking providers.

By 2017, the vessel had reached the tip of its working life. The defendant was charged to promote it on behalf of CSME (proprietor) and MTM (contractor). The very best bidder was a Nevis-incorporated firm, Hsejar, who paid over $16m for it. The vessel steamed to Singapore, and after title had handed to Hsejar, it made its final journey to Chittagong (now referred to as Chattogram).

Responsibility of Care

As we are going to see, the decide, Jay J, accepted that it’s controversial that the defendant (D) owed Mr Mollah (C) an obligation of care in tort. The defendant sought to strike the case out, and the decide refused to take action.

The start line was proof that D knew that the vessel could be damaged up in Bangladesh. This was inferred from the value Hsejar paid for the vessel ($404 per tonne), an excellent deal greater than the $255 which it might have commanded had it been damaged up in the one different real looking candidate, a good yard in China. Of the 11million tonnes damaged up in 2018, just some 80,000 tonnes went to China or Turkey.

Therefore, it was not too troublesome to point out that it was foreseeable that the vessel would find yourself in Bangladesh, and if in order that it might be damaged up in unsafe and environmentally dangerous circumstances, which could impression on the workforce.

However all have been agreed that foreseeability of the opportunity of bodily hurt by itself doesn’t set up an obligation of care. You additionally want some extent of”proximity” between claimant and defendant. All legislation college students will understand how opaque that idea is. However, as typically, Lord Hoffman has made the perfect shot at it, in such circumstances: “There should be proximity within the sense of a measure of management over and duty for the possibly harmful state of affairs“: Sutradhar, at [38]

Earlier than {that a} bit extra, it’s plain that the decide discovered the case troublesome to analyse when it comes to conventional acts versus omissions, one other robust pointer in the direction of or away from legal responsibility. You’ll be able to see why. C mentioned that D organized for the sale of the vessel to a purchaser who was just about sure to ship it to Bangladesh. The decide mentioned this was an act, not an omission. However issues weren’t over by then. The customer conveyed the vessel to Bangladesh (an act), and the employer/yard took energetic steps to make use of C on the vessel.

C put the case two methods.

(1) There was easy Donoghue v. Stevenson legal responsibility in respect of a recognized supply of hazard (the vessel) which D was promoting on realizing it was going to be taken aside in unsafe circumstances.

(2) But when the true evaluation was that this was a case of harm by third events, the exceptions to the overall rule limiting liabilities in these circumstances utilized.

The decide was inclined towards the primary submission. It was not a “snail within the ginger beer” case as a result of there have been interventions of the brand new house owners and of the employer/yard. However he was extra in favour of the second, and specifically an exception the place D “is accountable for a state of hazard which can be exploited by a 3rd celebration”.

His central conclusion is at [61]:

In different phrases, the dialogue is drawn again to the difficulty of whether or not the defendant might be mentioned to have created the related hazard fairly than merely to offer the chance for the yard/employer to show the deceased to the danger. My total conclusion is that it’s synthetic and overly restrictive to say that the hazard was created solely by the acts and omissions of the yard/employer in Bangladesh, significantly when these third events weren’t performing intentionally within the sense of aspiring to injure the deceased. It was a hazard which inhered on this end-of-life vessel as soon as it was damaged up, except applicable security measures have been taken.

However the decide was removed from dogmatic about this conclusion. As he added at [63]

There are arguments which minimize each methods as as to if issues of equity, justice and reasonableness, the safeguarding of the atmosphere and exploited employees within the creating world, and business follow, ought to function in a case reminiscent of this to information the courtroom in putting it both inside or with out the creation of hazard precept, in so doing presumably barely stretching the boundaries of established norms. In my judgment, it might not be applicable to resolve the stability of those arguments on a abstract judgment software.

He additionally left open the Donoghue v. Stevenson argument, on comparable grounds.

Unjust enrichment

This declare was roundly dismissed by the decide. C mentioned that D had been enriched by the receipt of an enhanced buy worth as a result of C could be working in a deplorable atmosphere. This was at C’s expense by way of the set of associated transactions. The issue with that is that D (as distinct from different group corporations) made no cash out of the sale. The enrichment, mentioned the decide, was made by the yard/employer.

Limitation

This concerned two questions (1) did English legislation apply, through which case any declare would have been issued properly inside the limitation interval? (2) if not, what was the limitation interval underneath Bangladeshi legislation?

The primary concerned Rome II (Regulation (EC) 864/2007) , and Artwork.four specifically.

The decide held with out issue that the start line was that the legislation of Bangladesh utilized as a result of the harm occurred there, and that there have been no different circumstances which meant that the declare was manifestly extra linked with the UK. However the extra promising and fascinating avenue was Artwork.7 of Rome II, the place the individual searching for compensation for environmental harm or harm consequential on such harm may sue on the idea of the legislation of the nation the place the occasion giving rising to the harm occurred. “Environmental harm” is outlined as together with “hostile change in a pure useful resource…” The decide determined at [83] that

“The proximate reason behind the accident was the deceased’s fall from a top, however on a broader, purposive method the accident resulted from a sequence of occasions which led to the vessel being grounded at Chattogram, in consequence of which harm was little doubt brought on at very least to the seashore and tidal waters. Assuming (as I’ve discovered) that the claimant has a sustainable argument that the defendant dedicated a related tort, it’s removed from apparent that the current case shouldn’t be caught by the spirit of Article 7. Furthermore, the occasion giving rise to the harm was for these functions the tortious occasion which occurred on this jurisdiction.

That is, tentatively put by the decide, a really fascinating argument, and plainly a purposive method is relevant to a European measure reminiscent of Rome II. Its significance for the declare is that this makes arguably the declare introduced inside the limitation interval.

At [85], the decide deferred an extra argument underneath Artwork.26 Rome II that there have been causes of public coverage standing towards the applying of the one 12 months Bangladeshi limitation interval, even when the earlier arguments by C failed.

As to the second argument, the decide confirmed that Bangladeshi legislation contained a non-extensible one 12 months limitation interval in deadly accidents circumstances reminiscent of this.

So the chief limitation concern for trial is whether or not the environmental harm provisions of Artwork.7 of Rome II imply that C can sue D underneath English legislation, with the doable public coverage exception additionally arising underneath Artwork.26.

Conclusion

There are two actually fascinating issues about this resolution, from very contrasting authorized traditions.

The primary is the very English widespread legislation query of attempting to suit a brand new set of details into some doubtlessly fairly fossilised responsibility of care standards.

The second is the European purposive train of attempting to make sense of environmental harm within the context of Rome II. It’s plain as a pikestaff that the beaching and dismantling of asbestos-ridden vessels in open air with none protecting measures is environmentally damaging. The difficulty is the relation of that to the accident which befell the late Mr Mollah.