Booth v Phillips & Ors

The claimant in this action is Mrs. Margaret Booth, the widow of Clifford Booth who was employed as chief engineer on the MV MAYSORA. On 2 March 2001 he died whilst working on board the vessel in Egypt.

The First Defendant was the master of the vessel at the material time and one or more of the Second to Fourth Defendants are the owners and managers of the vessel. The Defendants say that the Third Defendants are the owners and that the Fourth Defendants are the managers.

The claimant, in her own right and as executrix of the estate of her husband, claims against the First Defendant in negligence and against the Second to Fourth Defendants in negligence and for breach of the Mr.Booth’s contract of employment.

The Court has jurisdiction over the First Defendant because he resides within the jurisdiction. However, he applies to the court for an order that the proceedings against him be stayed on the grounds that there is another forum, namely the court of Jordan, which is clearly or more distinctly more appropriate for the trial of the action against him. By an order dated 28 November 2003 Master Miller gave permission to serve proceedings out of the jurisdiction on the Second, Third and Fourth Defendants pursuant to CPR 6.20. They apply to set aside that order on the grounds that there no grounds for exercising jurisdiction over them and that, if there are such grounds, this is not an appropriate case for the exercise of such jurisdiction.

It is a striking feature of the Defendants’ approach to the Claimant’s claim that when these applications first came before the Court earlier this year counsel for the Defendants stated that he was instructed “to take every available technical point on jurisdiction to try and dissuade Mr.Booth’s widow from pursuing a claim against them” I was told by counsel that this was because the Defendants believed that the claims against them would fail and that they (or the P and I Club in which the vessel was entered) did not wish to incur the costs of the litigation if they could be avoided.

I shall summarise very briefly the events which, on the evidence presently available to the Court, appear to have given rise to the claim. The vessel was converted from a container vessel to a livestock carrier by Keppel Shipyard in Singapore. However, the vessel sailed from Singapore before a problem with the loading ramp and associated winch was remedied. At Fremantle a cargo of livestock was loaded and repairs were carried out to the winch mechanism. In Egypt a problem again developed with the winch mechanism. Mr.Booth, who had joined the vessel in Fremantle, was seeking to remedy the fault when the ramp fell causing parts of the equipment to disintegrate. Mr.Booth was struck by one or more pieces of metal and died as a result.

The claim against the First Defendant is put in negligence. It is said that he ought not to have departed from either Singapore or Fremantle with a defective winch mechanism. The claim against the Second to Fourth Defendants is put in negligence and in contract. It is said that the accident was caused by a breach of an implied term of the contract of employment that Mr.Booth would be provided with a safe place and system of work.

The Claimant can sue the First Defendant as of right because he is within the jurisdiction. But as against the Second to Fourth Defendants she must establish that there is a ground for the Court to exercise jurisdiction over them within CPR6.20.

It is submitted on behalf of the Claimant that there are 3 grounds for exercising jurisdiction against the Second to Fourth Defendants. I shall deal with each in turn.

Necessary or proper party

CPR 6.20(3) provides for service out of the jurisdiction with the permission of the court if a claim is made against someone on whom the claim has been served and “(a) there is between the claimant and that person a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim”.

The Claimant said there was such an issue between her and the First Defendant. The Second to Fourth Defendants said there was not. My attention was drawn to CPR 6.21(2) which provides that the Claimant’s application must be supported by written evidence stating the grounds on which the witness believes that there is between the claimant and the person on whom the claim form has been served a real issue which it is reasonable for the court to try.

The application for permission for service out of the jurisdiction was supported by a witness statement of Peter Mongomery, the solicitor who has conduct of this matter on behalf of the Claimant, which exhibited to it the notes of an inquest into the death of Mr.Booth. The notes include reference to evidence given by the First Defendant on which the Claimant relies. Mr.Montgomery states in his first witness statement dated 25 November 2003 that the Claimant relies on CPR 6.20(3) and in his second witness statement dated 23 February 2004 he states that “it is clear” that there is a real issue between the Claimant and all of the Defendants. The nature of the claim sought to be made by the Claimant against the First Defendant has been pleaded in detail in the Amended Points of Claim. The point taken on behalf of the Second-Fourth Defendants is that the notes of the First Defendant’s evidence at the inquest on which the Claimant simply cannot support the pleaded case and therefore there is no real issue which it is reasonable for the Court to try.

A real issue no doubt means what it says, that is, it must be a real and not a fanciful issue. So long as such an issue exists which it is reasonable for the court to try it is no part of the court’s task at this stage to consider whether the claim is likely to succeed. For this reason I do not consider it appropriate to enter into a detailed analysis of the evidence.

The pleaded claim is that the First Defendant as master of the vessel owed a duty of care to the crew to exercise reasonable care for their safety in relation to decisions made by him in respect of the navigation and management of the vessel. This was not challenged on behalf of the First Defendant.

It is then alleged that the First Defendant supervised the work of converting the vessel from a container vessel into a livestock carrier on behalf of the Second to Fourth Defendants. There is support for this allegation in the notes of the First Defendant’s evidence at the inquest.

It is then said, in essence, that when the vessel sailed from Singapore the conversion work was incomplete (because the cattle loading ramp and its winching mechanism required to be repaired and redesigned), that the First Defendant knew that and nevertheless decided to sail from Singapore under commercial pressure to do so from the Second-Fourth Defendants, notwithstanding that it was reasonably foreseeable that a member of the crew might be injured by the defective ramp system. Again, there appears to be support for these allegations in the evidence on which reliance is placed. Although repairs were effected at Fremantle where a cargo of sheep and cattle were loaded the ramp and winch mechanism remained defective, as indictaed by the events in Egypt.

It is alleged that the fact that the vessel sailed from Fremantle with a defective ramp and winch mechanism which failed leading to the death of Mr.Booth was a consequence of the First Defendant’s decision to sail from Singapore before the work of conversion had been completed and that that decision was in breach of his duty of care.

The notes of the First Defendant’s evidence at the inquest suggest that he might challenge the allegation of negligence on the basis that arrangements were in hand for the design engineer of the conversion project to proceed to Fremantle where a local firm would carry out the required work under instruction. In those circumstances he is likely to say that his decision was not in breach of his duty of care.

Counsel for the Claimant argued that the fact that repairs might have been arranged before the vessel sailed from Singapore does not mean that the master’s decision to sail was safe. It was said that the work in Singapore was not repair work but work of conversion and that the ramp had to be tailored to the particular ship. In such circumstances it was said to be intrinsically unsafe for the vessel to leave Singapore without the conversion having been completed by the yard responsible for the conversion work and to rely on the remaining work to be done satisfactorily at a place remote from that yard.

If the decision to sail was in breach of his duty of care the First Defendant is likely to say that the chain of causation was broken by the repairs which took place in Fremantle. But it is alleged on behalf of the Claimant, based upon a comment made by the First Defendant at the inquest, that had he considered the matter carefully at Fremantle he would have appreciated that the winch mechanism had not been designed in a seamanlike way. He therefore ought not to have departed from Fremantle with a defectively designed, albeit repaired, winch mechanism.

This will be challenged by the First Defendant. Mr.Baker, the solicitor acting for the First Defendant, has stated on the basis of discussions with the First Defendant by telephone that the impression given by the notes of his evidence at the inquest that he was entirely conversant with the design and operation of mechanical parts of a ship is not correct and that some of his comments at the inquest were not fully considered or informed and were made with the benefit of hindsight.

This summary of the Claimant’s case and the challenges likely to be made to it by the First Defendant raise issues which do not appear to me to be fanciful (on either side). Having considered the evidence placed before me and the submissions of the counsel I have concluded that the claim made by the Claimant against the First Defendant raises real issues which it is reasonable for the Court to try. Since this is not the trial of those issues and there will undoubtedly be further evidence on those issues it is not, I think, appropriate for me to say anything more about those issues.

It is accepted by the Second to Fourth Defendants that if the Court concludes that there is a real issue between the Claimant and the First Defendant which it is reasonable for the court to try then the Second to Fourth Parties are necessary or proper parties to the action. Accordingly, the Claimant has established a ground for exercising jurisdiction over the Second to Fourth Defendants.

CPR6.20(5)(c) provides that permission for service out of the jurisdiction may be granted where a claim is made in respect of a contract governed by English law. It is submitted on behalf of the Claimant that there is an arguable case that her husband’s contract of employment was governed by English law.

The Rome Convention which has the force of law pursuant to the Contracts (Applicable Law) Act 1990 provides by Article 6 that a contract of employment shall be governed, if the employee does not habitually carry out his work in any one country, by “the law of the country in which the place of business through which he was engaged is situated”. The Claimant’s husband accepted an offer of employment as chief engineer on a sea-going vessel by e-mail sent to a Mr.Danon, who was acting on behalf of one or more of the Second to Fourth Defendants, in Jordan. Pursuant to Article 6 the applicable law of the contract was therefore that of Jordan. However, the Claimant relies upon the proviso to that Article which states that if it appears from the circumstances of the case as a whole that the contract is more closely connected with another country then the contract will be governed by the law of that country.

It was submitted that the contract was more closely connected with England. Reliance was placed on a number of matters. I shall consider each in turn.

It was said that the subject matter of the contract had no natural connection with Jordan save for the e-mail address. This is not so because the managers of the vessel were a Jordanian company and the owners, albeit a Liberian company, appear to carry on business in Jordan. In any event this point is not a connection with England.

The connecting factors with England are said to be that the employee was based in the UK, that his employers would be responsible for flying him from and to the UK, that the UK would be his base for leave purposes and that he would be paid in the UK. These are connecting factors but they are not strong factors. They are balanced by the fact that the employer carried on business in Jordan.

Reliance was also placed on the fact that the vessel was entered in a London based P and I Club, that the management contract between the Third and Fourth Defendants was in English and governed by English law and jurisdiction and that the contract for the conversion of the vessel was governed by English law. These matters were not in dispute but they are not connecting factors between the contract of employment and England.

Finally reliance was placed on how matters might look to the “officious hacker” of the e-mail exchanges between the Claimant’s husband and his employers. It was said that if the officious hacker had been asked “will this contract of employment be subject to the normal United Kingdom provisions that the employer will take steps to provide the employee with a safe place and system of work and supervise and maintain the same ?” he would reply “of course”. I disagree. The vessel was not registered in the UK, was not owned by a UK company and, I am told, did not trade to the UK. The officous hacker might well consider that the owners and operators of the vessel did not wish their relationships with the crew to be governed by English law.

Having considered the matters relied upon by the Claimant I do not consider that she has established a good arguable case that the contract of employment was governed by English law by reason of being more closely connected with England.

The third and last ground for exercising jurisdiction against the Second to Fourth Defendants was CPR6.20(8) which provides that permission to serve out may be granted for a claim in tort where “(a) damage was sustained within the jurisdiction; or (b) the damage sustained resulted from an act committed within the jurisdiction.”

It is said that in this case the Claimant sustained damage within the jurisdiction in her own right, namely the loss of her dependency upon her husband, and in her right as executrix of his estate, namely, his funeral expenses. This is disputed by the Second to Fourth Defendants who say that the “damage” referred to in the rule is the damage which completes the cause of action in tort and that that damage, the death of the Claimant’s husband, occurred in Egypt.

The issue between the parties is therefore one of construction of the rule. I am told there is no English authority which determines the matter but that there are Australian and Canadian cases which support the Claimant’s construction.

I shall start (and perhaps ought to finish) with the words of the rule themselves. CPR6.20(8)(a) refers to a claim in tort where “damage was sustained within the jurisdiction”. There is no reference to the damage which completes the cause of action. The Civil Procedure Act 1997 s.2(7) enjoined the Rules Committee to try “to make rules which are both simple and simply expressed.” Having regard to this I do not consider it appropriate to interpret damage in CPR6.20(8)(a) as meaning “the damage which completed the cause of action in tort.” It should be given its ordinary and natural meaning, namely, harm which has been sustained by the claimant, whether physical or economic. Further, it is to be observed that CPR6.20(8)(b) refers to a claim in tort where “the damage sustained resulted from an act committed within the jurisdiction.” The definite article is used here whereas it is not used in CPR6.20(8)(a). This suggests that it is sufficient for the purposes of sub-pargraph (a) that some damage (not all of the damage) is sustained within the jurisdiction.

On behalf of the Second to Fourth Defendants it was objected that if the Claimant’s construction of the rule were correct then a ground for exercising jurisdiction would exist where accidents causing personal injury or death occurred abroad so long as some damage, eg loss of earnings, was sustained within the jurisdiction. This was said to be an improbably wide construction to give the rule. However, it must be remembered that before jurisdiction is exercised the court must be satisfied that it is appropriate to exercise that jurisdiction, which involves considering whether England is the forum in which the case could most suitably be tried for the interest of all the parties and for the ends of justice. When regard is had to this requirement there does not appear to me to be anything objectionable about the Claimant’s construction of the rule.

For these reasons a consideration of the ordinary and natural meaning of the words used in the rule suggests that the Claimant’s construction of the rule is to be preferred to that of the Second to Fourth Defendants.

The only English authority to which I was referred was Metal und Rohsoff AG v Donaldson Lukin & Jenrette Inc [1990] 1 QB 391. In that case the Court of Appeal considered the meaning of Ord.11r.1(1)(f) which was in similar but not identical terms to the present rule. The old rule referred to a claim “founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction.” The Court of Appeal held that the use of the definite article did not require that all of the damage must have been sustained within the jurisdiction. It was enough that “some significant damage” had been sustained in England. The Court of Appeal made no reference to the possibility that the damage which completed the tort had to be sustained within the jurisdiction.

Although the omission of the definite article from CPR6.20(8)(a) seems to reflect the view expressed by the Court of Appeal I do not consider that I can gain any real assistance from this judgment on the issue which has arisen in this case. At any rate there is nothing in it which indicates that the construction urged upon me by the Second to Fourth Defendants is to be preferred.

I was also referred to decided cases on jurisdictional issues arising in the federal systems of Canada and Australia. In Skyrotors v Carriere Technical Industries 102 DLR (3^rd) 323 the High Court of Ontario had to consider Rule 25(1)(h) of the Ontario rules of court which referred to claims “in respect of damage sustained in Ontario arising from a tort or breach of contract committed elsewhere”. The question was whether an owner of an aircraft which crashed in Quebec had sustained damage in Ontario by reason of having suffered loss of profits in Ontario. A court of concurrent jurisdiction had held, in a case involving a motor accident in Saskatchewan where the injured plaintiffs had incurred expenses in connection with the treatment of their injuries in Ontario, that the cause of action was complete in Saskatchewan where the plaintiff had sustained their injuries and that the expenses incurred in Ontario were simply part of the damage sustained in Saskatchewan. The court in Skyrotors declined to follow that approach and held that the aircraft owner had suffered damage in Ontario so that proceedings could be served out of Ontario. It may thus be said that these two decisions reflect the positions adopted by the parties in the present case.

In Vile v Von Wendt 103 DLR (3^rd) 356 the Divisional Court of Ontario (which has an appellate jurisdiction) adopted the construction of the Ontario rule of court which is consistent with the Claimant’s argument in the present case. The reasoning of the court is set out in the judgment of Linden J. at pp.360-362 and echoes the debate in the present case. The following passage has an obvious parallel:

“… say the plaintiff Vile had been killed in the accient in Quebec, would his family have been forced to pursue the tortfeasor in Quebec on the ground that the damage to them occurred there ? We think not; although the accident and the fatal injury would have occurred in Quebec , Vile’s family, if living in Ontario would have suffered their damage in Ontario.”

In Flaherty v Girgis (1985) 4 NSWLR 248 the Court of Appeal in New South Wales considered a rule of court which referred to proceedings “founded on … damage suffered wholly or partly in the State caused by a tortious act or omission wherever occurring”. The question was whether the plaintiff who had suffered injuries as a result of a car accident in Queensland but who had been treated in New South Wales where she had incurred expense could establish jurisdiction in New South Wales. It was held that she could. Again, the reasoning of the court is consistent with the argument of the Claimant in the present case. For example, McHugh JA (with whom on this issue Kirby P and Samuels JA agreed), said that “damage …. is to be contrasted with the element necessary to complete a cause of action; it includes all the detriment, physical, financial amd social which the plaintiff suffers as the result of the tortious conduct of the defendant.”

These authorities cannot determine the issue in the present case which depends upon the wording of CPR6.20(8). However, having been referred to them there is nothing in them which causes me to alter the view I formed after considering the ordinary and natural meaning of CPR6.20(8). On the contrary, the reasoning of the appellate courts in both Canada and Australia supports the meaning which I consider should be given to “damage” in CPR6.20(8).

In the present case the Claimant sues in her own right and as executrix of her husband’s estate. Her claim in her own right stems from the Fatal Accident Act 1976. It is accepted by the Second to Fourth Defendants that her claim is in tort. She seeks to recover “the injury resulting from the death” of her husband (see section 3 of the Fatal Accidents Act 1976) which is the loss of her financial dependency upon him. Such financial detriment is, in my judgment, damage (within the meaning of that word as used in CPR6.20(8)(a)) which was sustained in England where she lives. One element of her claim as executrix of her husband’s estate is, I am told, the expenses of her husband’s funeral which were incurred in England. That was also damage sustained in England. For these reasons the Claimant has established another ground for seeking permission to serve out of jurisdiction.

The Claimant having established two grounds for the exercise of jurisdiction against the Second to Fourth Defendants it is necessary to consider whether England is the proper place in which to bring the claim; see CPR 6.21(2A). In particular the court must consider whether England is the forum in which the case can most suitably be tried for the interests of all the parties and the ends of justice. The burden of proving that lies upon the Claimant.

On the First Defendant’s application the burden of proving that there is another forum, namely Jordan, which is clearly or distinctly the more appropriate forum lies upon the First Defendant. Although the incidence of the burden of proof is different it is convenient to consider both applications together.

It is obviously in the interests of all parties and the ends of justice that the claims against the Defendants be brought in one jurisdiction rather than duplicating costs, effort and time in two jurisdictions. The Claimant has sued the First Defendant as of right in this jurisdiction and has established that grounds exist for permitting service of proceedings out of the jurisdiction on the Second to Fourth Defendants. Thus the claims against all the defendants can be brought in this jurisdiction.

It is possible that if the claims against all of the Defendants were brought in Jordan that the court there would have jurisdiction over them. The Second and Fourth Defendants are probably within the jurisdiction of the Jordanian court and Mr.Baker has said in his witness statement that the First and Third Defendants have agreed to submit to the jurisdiction of the Jordanian courts. However, counsel for the Claimant pointed out that the court does not have formal undertakings from the Defendants that they will submit to the jurisdiction of the Jordanian courts. Counsel for the Defendants did not offer any such undertakings but pointed out that in the case of the Second and Fourth Defendants such undertaking was unnecessary since they were Jordanian and therefore subject to the jurisdiction of the Jordanian courts.

In circumstances where the Defendants (and, so I was told, the P and I Club in which the vessel was entered) have instructed their counsel “to take every available technical point on jurisdiction to try and dissuade Mr.Booth’s widow from pursuing a claim against them” I have a sense of unease as to what points may be taken in Jordan to frustrate the Claimant in seeking to bring her claims there. The reason given for the Defendants’ uncompromising stand was that they believed that the claims against them would fail and that they (or the P and I Club in which the vessel was entered) did not wish to incur the costs of the litigation if that could be avoided. The logic of this reason would suggest that the Defendants would seek to prevent the Claimant from bringing her claims in Jordan also. In these circumstances it is not surprising that the Claimant’s counsel observed that no formal undertakings to submit to the jurisdiction of the Jordanian court had been given to the court by the Defendants. It is striking that no such undertaking was offered in response to that observation. It was said that the point had only been raised late, in counsel’s skeleton argument, but no application was made for an adjournment to obtain instructions to give such an undertaking.

Thus the only forum in which there is no doubt that all of the claims against the Defendants can be heard is this court. That seems to me a powerful reason for concluding that this court is a proper place in which to bring the claims.

In addition the Claimant relied upon the circumstance that the proceedings in Jordan would be conducted in Arabic and so would not be understood by the Claimant save with the assistance of an interpreter. By contrast it is likely that the officers of the Second to Fourth Defendants would understand a trial conducted in England because the vessel’s management contract and conversion contract are in English. For this reason trial in London was said to be more appropriate. This is a factor to be taken into account in favour of London. It is not perhaps a factor of great weight but it is to accorded some weight.

It was also argued on behalf of the Claimant that this court will have a better understanding of the social and economic conditions which influenced her dependency upon her husband. This was to be preferred to the system in Jordan where an expert would be appointed by the court to carry out a calculation of the Claimant’s damages taking into account the family circumstances of the Claimant and her husband. Such an expert, it was said, could not have anything like this court’s understanding of the social and economic circumstances of the Claimant and her husband. Counsel was careful not to say that the Jordanian court could not do “substantial justice” in the sense explained by Lord Goff in Spiliada [1987]1 AC 460 at p.482. His point was simply that the assessment of a widow’s dependency upon her husband where both husband and wife were English and lived in England was most appropriately done by an English Court. I do not consider that this factor has much significance because the assessment will be largely financial with little if any need to analyse social and economic circumstances.

The factors relied upon by the Defendants in seeking to show that Jordan was clearly and distinctly the more appropriate forum for the trial of the Claimant’s claim against the First Defendant and for resisting the Claimant’s submission that this was an appropriate case for service out on the Second to Fourth Defendants were, in my judgment, insubstantial. They were as follows.

It seems likely that resolution of the issues between the parties will require evidence from England (the Claimant and the First Defendant), from Jordan (other members of the crew and management witnesses), from Singapore (employees of the yard), from Fremantle (the employees of the repairers), from England (the master) and possibly from Egypt (where the accident occurred). If the trial is in Jordan the Claimant will have to travel to Jordan. If the trial is in London the management witnesses will have to travel to London. Both the master and the Jordanian crew members may well be at sea at the time of the trial and so they will have to travel to the trial, whether it takes place in Jordan or London. Witnesses from Singapore, Fremantle and Egypt will also have to travel to the trial, whether it takes place in Jordan or London, although the costs of travelling to London will probably be somewhat greater because of the greater distances involved. Thus, the witness factor is either neutral or marginally in favour of Jordan.

It was suggested on behalf of the Defendants that in the action Jordanian standards of care will be relevant and for this reason Jordan was clearly and distinctly the more appropriate forum. I did not understand this suggestion. The First Defendant was an English master of a sea going merchant vessel owned by a Liberian company registered in the Bahamas and managed by a Jordanian company. The standard of care expected of him is that of a master mariner of sea going merchant vessel. Those standards are neither English nor Jordanian. Similarly, the Second to Fourth Defendants are the owners and managers of a sea going vessel. The standards of care expected of them will not depend upon their nationality but upon international standards of ship management.

It was said that the applicable law of the tort was that of Egypt pursuant to section 11 of the Private International law (Miscellaneous Provisions) Act. Assuming that this is so it does not assist the First Defendant’s argument that Jordan is clearly and distinctly the more appropriate forum.

The governing of the contract of employment appears to be Jordanian but in the absence of any evidence of a material difference between English and Jordanian law this does not appear to be a significant factor.

Reference was made to the factual circumstances of the accident having no connection with England, to none of the witnesses to the accident, to the repairs in Fremantle or to the post-accident investigation, save the First Defendant, having any conection with England and to none of the Defendants save the First Defendant having a domicile, place of business or assets in England. However, none of these matters makes Jordan clearly and distinctly the more appropriate forum since the same or very similar points can be made as to Jordan.

Reliance was also placed on what was said to be the lack of substance in the claim against the First Defendant. However, I have reached the conclusion that there is a real issue between the Claimant and the First Defendant which ought to be tried. I therefore disagree that the claim lacks substance.

The most important factor in determining where the case can most suitably for the interests of the parties and the ends of justice is that all the claims should be heard together. For the reasons I have endeavoured to express this factor points clearly to this jurisdiction. I am therefore not persuaded that Jordan is clearly or distinctly the more appropriate forum for the resolution of the claim against the First Defendant and I am satisfied that this is an appropriate case to order service out against the Second to Fourth Defendants.

The Defendants’ applications are dismissed.