MFV “REJOICE”: duty of care, witness credibility and fundamental dishonesty explored

In a judgment handed down on 27 March 2019, the Admiralty Court offered clarification in relation to the duty of care in English law owed by skippers and shipowners to self-employed crew members, particularly those in the fishing industry. Also, it has provided an illustration of the relationship between Fundamental Dishonesty and witness credibility.

FACTS

On 6 October 2016, the MFV “REJOICE”, (the “vessel”), a scallop trawler owned by the first defendant, VJ Glover Ltd, was moored starboard side to, in the “new fishing harbour” in Brixham, Devon. Although her berth was reasonably sheltered, the vessel was nonetheless pitching and rolling to some degree due to heavy weather that evening.

The claimant, Mr Lambert, had been requested by the second defendant, acting Skipper, Mr Carl Snell (also known as Carl Friday), to clean the accommodation block, including disposing of some protein powder spilled on deck.

Mr Lambert claimed that Mr Snell had asked him to dispose of the powder by discharging it overboard.  Later, as a finding of fact, the court held that this decision had in fact been taken by Mr Lambert himself.

Whilst discharging one particular quantity of powder, and having done several journeys already in this regard, Mr Lambert placed his left hand on the scallop dredge which was secured over the starboard side. In this position he emptied the contents of the powder with his right hand, at which point the vessel rose with the harbour swell, trapping his left hand between the vessel and the quay.

He sustained serious injuries to his left, dominant hand and brought a claim against the owner and skipper for damages, seeking a total of £585,348.76 (which had been reduced by the time of trial from around £800,000).

In the course of pursuing his claim, Mr Lambert sent a message to Mr Snell offering a substantial sum of money if Mr Snell agreed to support his allegations that what had made the situation more dangerous, was the insufficient mooring of the vessel with only two spring lines, one for’ard and one aft; insufficient fendering; and poor deck lighting. It was common ground that the message had been sent, but the claimant argued that its sole purpose was only to ask Mr Snell to give a truthful account.

ISSUES

  1. What was the duty of care owed by Mr Snell and the owners to Mr Lambert as a self-employed crew member?
  2. Had that duty been breached?
  3. Had Mr Lambert’s negligence caused his own injuries, and if so, to what degree?
  4. Did the message sent from Mr Lambert to Mr Snell amount to Fundamental Dishonesty? If it did, even if Mr Lambert had an otherwise good claim, the court might nevertheless be required to dismiss it.

JUDGMENT

The case was dismissed. The injury was held to have been caused entirely by the “Claimant’s own fault in failing to take sensible and reasonable care of himself”.

In relation to the first issue, the court confirmed that a self-employed skipper did owe a duty of care to a fellow self-employed crew member, the scope being that “a skipper owes a duty to his crew not to negligently expose them to dangerous situations from which they cannot protect themselves by the exercise of good seamanship”.

“Claimant’s own fault in failing to take sensible and reasonable care of himself”

Further, although a shipowner will be vicariously liable for the negligence of employees, it could not be so liable when the individual concerned is self-employed, such as the skipper. Thus, owners could only be found liable in this context under the Occupiers’ Liability Act 1957, which required them to ensure “that both the equipment is in good order and that the person appointed as skipper is reasonably competent”.

However, despite these duties owed to a crew member, such as Mr Lambert, there was an expectation that fisherman operating voluntarily in an inherently hazardous environment should themselves exercise good seamanship. The Admiralty Registrar noted that this “invariably involves the exercise of common sense as exemplified by the old adage ‘one hand for the ship and one hand for yourself’ with respect to how a seaman should perform his duties”.

So, whilst the Admiralty Court recognised that “fishing operations are even more potentially dangerous than more ordinary forms of seafaring which carry their own inherent risks”, it concluded that crew members ought equally to bear in mind that “[t]o that extent those who take part in such operations must be volunteers to the ordinary dangers involved in the industry such as working on an unstable platform in whatever weather conditions are being experienced”.

“it is a fundamental tenet of good seamanship not to place any part of one’s body between any part of a ship and a jetty whatever the weather conditions”

On the facts found, the court held that neither the owners nor Mr Snell had breached their respective duties of care. Also, the fact that Mr Lambert was asked to clean up the powder was not itself a request to embark upon an inherently dangerous operation, even if Mr Lambert had been requested to dispose of the powder overboard, providing he did not place any part of his body in an obviously dangerous place. It was clear to the crew that the vessel was rolling in the harbour swell. In a typically practical comment the Registrar concluded that “it is a fundamental tenet of good seamanship not to place any part of one’s body between any part of a ship and a jetty whatever the weather conditions”.

Thus, as noted above the court found that Mr Lambert’s injury was a direct result of his own personal failure to “take reasonable care of himself”. Incidentally, the skipper’s evidence of the way the vessel was moored and that there was sufficient lighting both on the vessel and from the berth, was preferred by the Court, to that of the claimant’s.

FUNDAMENTAL DISHONESTY

Since Mr Lambert’s claim failed, the court was not called upon to make a finding as to whether the message sent by Mr Lambert constituted Fundamental Dishonesty under section 57 of the Criminal Justice and Courts Act 2015. However, the Registrar did offer insight into how the court might consider the credibility of a witness in light of such conduct.  He considered that the extent to which such conduct may be taken into account must depend on the “circumstances of each individual case”.  He concluded: “There is, effectively, a clear offer to share the damages recoverable from the insurer if [Mr Snell] agrees to support Mr Lambert’s version of events, at least with respect to the ropes, fenders and lights. Whichever version of events the court accepts that appears to me to be an attempt to suborn a witness which can never be the act of an honest man. In my view that is an aspect which I should bear in mind when considering the Claimant’s evidence as a whole”.

CONCLUSION

The Admiralty Registrar was clearly unimpressed by the evidence in this matter. He commented generally that he had “some doubt about the reliability or usefulness to be placed on a considerable portion of the evidence presented by the witnesses of fact in this case”.

It is a little disappointing that this case did not further explore the scope of the test for Fundamental Dishonesty. It is perhaps understandable though, given that the Registrar clearly had doubts as to the veracity of a good deal of the witness evidence on both sides. However, the fact remains that there is a lack of guidance in case law on the relationship between Fundamental Dishonesty, and when a judge should simply prefer one party’s evidence over another’s.

Nonetheless, the Admiralty Court has provided valuable guidance on the nature of the duty of care owed, not only to self-employed fishermen, but also to employees who work in inherently hazardous environments. It highlights that although the employer undoubtedly has a duty to ensure a reasonably safe working environment, employees who voluntarily work in such environments are also expected to take reasonable care of their own safety by exercising judgment and common sense.  In this instance it seems the claimant demonstrated neither.

Lambert v VJ Glover Ltd & Friday (The “REJOICE”) [2019] EWHC 776 (Admlty)

Whichever version of events the court accepts that appears to me to be an attempt to suborn a witness which can never be the act of an honest man.

Admiralty Registrar Jervis Kay QC

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