Fish & Fish Ltd v Sea Shepherd UK & Anor

This is the trial of preliminary issues between the Claimant and the First Defendant (“SSUK”) as ordered by Flaux J on 2 December 2011.

The Claimant is a company engaged in the aquaculture business and operates a fish farm for bluefin tuna situated offshore of Malta. The Claimant purchases live tuna from fishermen participating in the bluefin tuna fishery in the Mediterranean Sea and transports the fish to the fish farm in floating cages.

The Second Defendant (“SSCS”) is a conservation charity based in Friday Harbour, Washington State in the USA. It is an international non-profit, marine wildlife conservation organization which uses “direct-action tactics to investigate, document, and take action when necessary to expose and confront” what it considers to be illegal activities on the high seas. The Third Defendant (“Watson”) is the founder of SSCS and its organisational head. There are various Sea Shepherd charities around the world which support SSCS, including charities in France, the Netherlands, Belgium, South Africa, Australia, Ecuador and Canada and in the UK, SSUK.

In 2010 SSCS launched “Operation Blue Rage”, a campaign aimed at preventing fishing of Atlantic bluefin tuna contrary to the regulations of the International Commission for the Conservation of the Atlantic Tunas (“ICCAT”) and Council Regulation (EC) No 302/2009. Under the EC regulation there is a limited period each year when fishing is permitted and there is a quota system. In June 2010 the vessel “STEVE IRWIN” was sent to the Mediterranean to carry out the campaign. SSUK is the legal owner of the “STEVE IRWIN”.

On 17 June 2010 the Claimant was engaged in transporting live bluefin tuna in cages from Libyan waters to Malta when the “STEVE IRWIN, under the command of Watson as Master, mounted what the Claimant describes as an “attack” on the tuna cages and the tugs towing them. A cage was rammed and divers from onboard the “STEVE IRWIN” dived into the cage and tore open the netting, releasing the Claimant’s fish into the sea. The Claimant claims losses amounting to € 760,148.

The “attack” was part of the “Operation Blue Rage” campaign and it is the Claimant’s case that the campaign was conducted by all three defendants and that they are liable as joint tortfeasors.

The Claimant’s claim is based on trespass to and/or conversion of the Claimant’s property, namely the cages and the tuna in its possession. SSUK puts forward two defences. The first is that it is not legally responsible for the conduct of the “attack”. This is the subject of the preliminary issue trial. The issue is defined in the Order as follows:

The second defence which has been raised is that the fish had been illegally caught. The Claimant denies this, and contends that it is in any event irrelevant. The issues which arise as to the alleged legality of the Claimant’s possession of the fish, and whether illegality would afford a defence, are not the subject-matter of the present hearing. Without prejudice to that further defence, for the purpose of the preliminary issue it is to be assumed that the incident involved tortious acts. The issue is SSUK’s legal responsibility for those acts.

The significance of the preliminary issue is that it goes to jurisdiction. SSUK is an English company and was served within the jurisdiction. SSCS and Watson were served out of the jurisdiction pursuant to the permission of the court on the basis that they were necessary or proper parties. An application has been issued by SSCS and Watson challenging jurisdiction. The principal basis for that application is that there is no real claim as between the Claimant and SSUK. The hearing of the jurisdiction application has been stood over pending the outcome of the preliminary issue trial.

The Claimant operates a fish farm situated offshore of Malta.

SSCS’s mission statement, taken from its website, is stated to be as follows:

SSCS was founded by Watson in 1977 following a split from Greenpeace. Watson is very much the driving force within SSCS. He is its President. As he puts it in his witness statement he is “the organisational leader with the overall strategic control of SSCS”. The website states that he has been “at the helm” of SSCS for 31 years and refers to him as the “Master and Commander” of SSCS’s voyages to protect, defend, and conserve the Earth’s wild oceans.

The website also notes:

SSUK is a company limited by guarantee and is a registered charity which was established in 2005.

Information about SSUK’s activities can be found on the Charity Commission’s website. It states, inter alia:

makes grants to organisations

provides buildings/facilities/open space

provides services

provides advocacy/advice/information

sponsors or undertakes research

other charitable activities

throughout England and Wales, Scotland.”

Watson is a director, but not an employee, of SSUK. At the time of the Blue Rage 2010 campaign SSUK had only one employee, Mr Darren Collis.

In summary the Claimant’s case is that Watson as the Master of the vessel directed the Operation Blue Rage campaign and the vessel on behalf of SSUK and SSCS and that they are both legally responsible for his actions in relation to the “attack” on the Claimant’s vessels and cages and the release of the fish (“the capacity issue”). Further or alternatively, these actions were taken pursuant to a common design between the Defendants to commit such acts. The part allegedly played by SSUK in furtherance of that common design was “to make the vessel available for, and/or to deploy it in the Blue Rage campaign, to recruit volunteers, pay the crew (at least according to its accounts) and to support the campaign by obtaining financial contributions” (“the common design issue”).

SSUK contended that the common design case was not open to the Claimant on the pleadings or covered by the terms of the preliminary issue. Whilst I accept that the main focus of the Claimant’s pleaded case was that SSUK was a primary infringer and itself directed or authorised or carried out the “attack”, I consider that the pleading, and therefore the preliminary issue, is drawn sufficiently widely to encompass the common design issue. However, as the Claimant accepted, that is on the basis that the Claimant’s case on the issue is limited to the pleaded facts.

In respect of the capacity issue it was common ground that this depended on whether as a matter of fact whilst directing the “attack” Watson as Master of the “STEVE IRWIN” was acting on behalf of SSUK.

In respect of the common design issue, persons may be joint tortfeasors when their respective shares in the commission of a tort are done in furtherance of a common design: The “Koursk” [1924] P 140 at p.156 per Scrutton LJ; CBS Songs v Amstrad [1988] AC 1018 at p.1058.

The nature of a “common design” was explained by Mustill LJ in Unilever v Gillette[1989] R.P.C. 583, at p.609 as follows:

The joint tortfeasor needs to join or share in the commission of the tort which generally means some act which at least facilitates its commission.

As explained by Hobhouse LJ in his judgment in Credit Lyonnais v ECGD [1998] 1 Lloyd’s Rep 19 there is no tortious liability for aiding and abetting or facilitating the commission of a tort, even knowingly. There may, however, be such a liability if that is done pursuant to a common design. He treated this as an example of liability based on agency.

In considering whether there is any such liability it is relevant to consider whether the person has been so involved in the commission of the tort as to make the infringing act his own. As stated by Peter Gibson LJ in Sabaf v Meneghetti [2002] EWCA Civ 976; [2003] RPC 14 at [59]:

This statement of principle was approved and applied by the Court of Appeal in Generics v Lundbeck [2006] EWCA Civ 1261 at [24].

An example of a case in which the combiner was held to have made the act his own is Credit Lyonnais v ECGD. In that case an employee of the ECGD guaranteed bills of exchange issued in relation to fictitious expert transactions. This was done in concert with a third party who used them to deceive the claimant bank. The employee of the ECGD did not himself deceive the bank, but it was held in the Court of Appeal (and was common ground in the House of Lords [2000] 1 AC 486) that he was a joint tortfeasor because he joined in the common design.

Another example is provided by Monsanto v Tilly [2000] Env LR 313, CA. In that case a group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, “reconnoitred the site the day before. He met the press at a prearranged rendezvous and led them to the site for the purpose of photographing and reporting the uprooting activities. He was present while the others uprooted the plants and he explained the purpose and significance of their acts to the media”(paragraph 46 of the judgment). He was held to have no arguable defence to a claim that he was a joint tortfeasor.

It was the Claimant’s case that SS is a global organisation in which all the SS entities join together. Watson is the controlling mind behind all the SS entities and when acting on behalf of SS he is acting on behalf of all those entities.

That was not, however, borne out by the evidence. At the trial the only oral evidence given was by witnesses called on behalf of SSUK. They were Watson; Mr Nicholas Makhani, the Chief Financial Officer of SSCS; Mr Collis, the sole employee of SSUK at the time; Mr Lockhart Maclean, the First Mate on board “STEVE IRWIN”, and Ms Lamya Essemlali, the President of Sea Shepherd France. There was also a written statement from Ms Susan Hartland, an Administrative Coordinator employed by SSCS. Their evidence, which I accept, was that the global organisation is SSCS to which the national charities provide support.

Whilst it is correct that there is a close connection between the various SS entities worldwide, the different entities are separate legal bodies and the operational reality is that SSCS is the global organisation which utilises the resources of other SS entities when it is convenient to do so.

In relation to SSUK this is borne out by the Trustees' Report which forms part of the financial statements. Under the heading, "Plans for the Future," the report stated, "The primary objective of the Sea Shepherd UK remains the provision of funds to support the aims and objectives of our international organisation the Sea Shepherd Conservation Society.” This accurately reflects the fact that the international organisation is SSCS and that SSUK’s role is a supporting one.

In support of its capacity case, the Claimant placed particular reliance upon the fact that SSUK was at all material times the legal and registered owner of the “STEVE IRWIN”. This was done so that the vessel could have a British flag, although it has since been switched to the Dutch flag.

The Claimant submitted that ownership matters because in the absence of a transfer of possession to a demise charterer, the Master of a vessel acts on behalf of the ship owner.

I accept that in determining on whose behalf Watson as Master was acting an important consideration is who had possession and control of the “STEVE IRWIN”.

Although SSUK was the legal owner of the vessel I find that at all times from its purchase the vessel was both beneficially owned and operated by SSCS. In particular:

SSCS’s money bought the “STEVE IRWIN”. The evidence was that SSCS paid off the loan made to it and SSUK to purchase the vessel and that it made the additional payments necessary for the purchase;

SSCS paid for the extensive modifications made to the “STEVE IRWIN”. The evidence was that these cost over US$783,000;

SSCS bought the helicopters for the vessel. The evidence was that in 2010 over US$970,000 was spent on helicopters;

SSCS bore the vast majority of the maintenance and repair costs of the “STEVE IRWIN”;

SSCS bought the bunkers for the “STEVE IRWIN”;

SSCS paid operational costs such as Panama transit;

The crew were paid by SSCS (to the extent that the crew were paid - the majority of the crew are SSCS volunteers);

SSCS chose which volunteers will be on the vessel, and the volunteers entered agreements with it (including an agreement whereby SSCS own all image rights in relation to the campaign);

SSCS decided on what campaigns would be carried out and whether and how the “STEVE IRWIN” would be used in those campaigns.

Not only was the “STEVE IRWIN” managed, directed and operated by SSCS it was also treated as being SSCS’s vessel. This is borne out by its accounts. It was treated as an asset of SSCS in SSCS’s accounts and depreciation was claimed on that basis. By contrast, it does not appear in SSUK’s accounts.

In the light of the evidence summarised above I find that the practical reality is that at all times it was SSCS which had possession and control of the “STEVE IRWIN”. Although beneficial ownership does not carry with it the right to possession and control, in this case it helps to explain how and why possession and control was as a matter of fact exercised throughout by SSCS.

The Claimant pointed out that there was no bareboat charter and that such an arrangement would be necessary to transfer the right of possession to SSCS. However, if, as I find to be the case, SSCS and SSUK acted on the basis that the “STEVE IRWIN” was in SSCS’s possession and control there would be no need for any such formal arrangement.

The Claimant also stressed that in proceedings in Seattle in February 2012 SSCS’s counsel told the court that SSCS did not own any of the vessels, although it funded them. However, the basis upon which this assertion was made is unclear. Further, in terms of legal ownership it would be true. In any event what matters is the evidence before this court.

I accordingly find that the “STEVE IRWIN” was in the possession and control of SSCS rather than SSUK. This provides strong support for SSUK’s case that the Master and crew on board were acting on behalf of SSCS not SSUK.

That Watson was acting on behalf of SSCS rather than SSUK or SSCS and SSUK is further borne out by the fact that the campaigns, including the Blue Rage campaign, were conducted by SSCS and it was pursuant to that campaign that the vessel was being deployed. As already found, the international organisation was SSCS, and SSUK’s role was a supporting one. Further, in relation to the Blue Rage campaign;

It was SSCS which commissioned and chose the Blue Rage campaign logo;

It was SSCS which entered the agreements with media organisations to produce the television programmes which publicise its actions and gain support for the campaigns and which received the proceeds therefrom;

It was SSCS which organised the fundraising mailshot for the campaign;

It was SSCS which paid the cost of the Blue Rage campaign, a cost of over US$1million;

The daily reports from the vessel during the course of the operation were sent to SSCS recipients (not to Mr Collis). Only a very small number of Mr Collis’s emails at the material time make any reference to Blue Rage at all and it would appear that it was only after the incident had already occurred that he learnt anything about what was actually going on in the campaign.

The documents show that, even if not involved in the operational planning of the Blue Rage campaign, the SSCS board was fully aware of it and that aspects of the campaign were agenda items for SSCS board meetings.

Further, it is significant that when the “STEVE IRWIN” encountered and made contact with the Claimant’s vessels Watson introduced himself as being there on behalf of SSCS. This introduction was made at a time when it could not have been anticipated that the capacity in which Watson was acting would be material.

I accordingly find that the Blue Rage campaign was a SSCS campaign and that Watson was acting as SSCS’s agent in conducting it.

Although Watson was a director of SSUK I accept that this was effectively an honorary title. Watson appears to have taken no action as director other than signing the promissory note relating to the purchase of the “STEVE IRWIN” on behalf of SSCS and SSUK. Whilst the vessel remained owned by SSUK, as found above, SSUK had no role in the vessel’s operation or employment and Watson did not need to be a director of SSUK to exercise control of the vessel. Against that background it is unrealistic to treat Watson as acting as a director of SSUK when he was Master of the vessel.

For all these reasons I accept SSUK’s case on the capacity issue and find that Watson and the crew were acting on behalf of SSCS and not SSUK or SSCS and SSUK whilst on board the “STEVE IRWIN” during the Blue Rage campaign and at the time of the incident.

The Claimant alleged that SSUK was party to a common design with the other Defendants to carry out Operation Blue Rage. It contended that that campaign was to carry out “direct action”, which means violent intervention such as that which occurred. It relies in particular on a mailshot leaflet sent out by SSUK which sought and obtained donations for the campaign on the basis of literature which stated as follows:

As to SSUK’s part in the commission of the tort the Claimant relied on the fact that, even if SSUK was not present on board the vessel, it facilitated the tort by making the vessel available for the campaign, recruiting volunteers, paying the crew and supporting the campaign by obtaining financial contributions.

In relation to the campaign it is correct that SSUK was aware and generally approved of the Blue Rage campaign and that the campaign envisaged the possibility of violent intervention against property, such as cutting fishing nets. However, that was not the purpose or object of the campaign. The purpose or object of the campaign was to seek to “investigate, document, and take action when necessary to expose and confront illegal activities” in relation to bluefin tuna fishing. That involved a preparedness to use violent intervention, but it did not necessarily mean that any such action would be taken. The campaign could and indeed very nearly did take place without any confrontation occurring. Investigating, documenting and exposing illegal activities does not involve violent intervention. Confronting such activities may do so, but not necessarily.

In relation to part played by SSUK I find as follows.

Since the vessel was at all times in the possession and control of SSCS, SSUK did not make it available for the Blue Rage campaign. It was at all times available for SSCS to use for such campaigns as it saw fit. No act by or authorisation from SSUK was required or provided. The vessel was throughout treated as being SSCS’s.

With regard to recruitment of volunteers, there is no evidence that any of the crew on the vessel during the Blue Rage campaign was recruited by SSUK.

Three individuals contacted Mr Collis about volunteering to assist in dockside/ logistics to help prepare for the campaign. Mr Collis passed their details on and it appears that one of them then sourced a pump for the vessel and that he and another drove to the south of France with the pump and did a day’s work on the vessel. He was also involved in trying to source hot water pumps.

SSUK did not pay any of the crew to take part in Blue Rage. Two sums totalling about £1,200 were paid to Ms Essemlali in April and May 2010 and she was on board the vessel. However, the payments to her from SSUK were not in respect of the Blue Rage campaign but because as a matter of French law she could not receive payment from the French charity and remain as its President. She was not paid as a Blue Rage crew member.

The “crewing expenses” referred to in the SSUK accounts were in respect of Mr de Groot and related to the 2009/2010 Antarctic campaign and/or were a mislabelling in relation to payment to Mr de Groot for his role as SSCS European Coordinator. Mr de Groot was not on board the vessel during Operation Blue Rage.

From time to time SSUK would pay for some parts for the vessel which were sourced in the UK, but usually such sums would be reimbursed by SSCS to SSUK. In the period around the Blue Rage campaign SSUK paid for parts in a total sum of £2,903.64. The parts were for general maintenance/ repair of the vessel and not specifically for the Blue Rage campaign. The original attempts to obtain these parts had been made by SSCS on the request of the ship’s engineer, and Mr Collis only became involved because of the difficulties in communication caused by timezone differences between the West Coast of the USA and the UK.

Mr Collis’ evidence was that SSUK did not itself seek campaign contributions for the Blue Rage campaign. There was the mailshot referred to above. This was designed, organised and paid for by SSCS, although SSUK’s address and bank details were included in respect of UK recipients of the mailshot to make it easier for them to donate in Sterling. SSUK processed the funds (to a total of £1,730) and sent them to SSCS.

Aside from these processed funds, SSUK did not provide any funds specifically for the Blue Rage campaign. SSUK provided SSCS with £30,000 in December 2009 and £80,000 in March 2010. This was to assist SSCS funds generally and was not specifically donated for the Blue Rage campaign.

In summary, it is apparent that none of the matters relied upon by the Claimant were of any real significance to the commission of the tort. The main thrust of the Claimant’s pleaded case was that the attack was directed or authorised or carried out by SSUK. Once it is found that Watson and the crew were not acting on behalf of SSUK the Claimant has to rely on participation which is remote in time and place. Whether considered individually or collectively I find that the matters so relied upon are of minimal importance and played no effective part in the commission of the tort.

When one considers in particular the minimal part played by SSUK; that it was a part in a SSCS campaign; that the campaign might but did not necessarily involve tortious acts; that SSUK was not involved in or even kept informed about the carrying out of the campaign, and that SSUK had no physical presence at still less participation in the “attack”, I find that it is not established that SSUK was so involved in the commission of the tort as to make the infringing act its own and that SSUK was not a joint tortfeasor.

For all these reasons I reject the Claimant’s case on the common design issue.

I find that the preliminary issue should be answered in the negative.