This case involved a collision between a jet ski driven by the second defendant and a speedboat driven by the first defendant, which resulted in significant personal injuries to the plaintiff: see Corbin v Dorynek [2020] JRC 31 (CMI952). The defendants applied to the Court to order the trial of a preliminary issue as to whether they were entitled to limit their liability to the plaintiff before any trial on quantum.

The LLMC 1976 is incorporated into the laws of Jersey pursuant to s 119 and Sch 6 of the Shipping (Jersey) Law 2002 (the Law). The general limits are set out in art 6 of Ch II, Pt 1 of Sch 6 of the Law as follows:

1. The limits of liability for claims other than those mentioned in Article 7, arising on any distinct occasion, shall be calculated as follows:

(a) in respect of claims for loss of life or personal injury,

(i) 3.02 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

(b) in respect of any other claims,

(i) 1.51 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

2. Where the amount calculated in accordance with paragraph 1(a) is insufficient to pay the claims mentioned therein in full, the amount calculated in accordance with paragraph 1(b) shall be available for payment of the unpaid balance of claims under paragraph 1(a) and such unpaid balance shall rank rateably with claims mentioned under paragraph 1(b).

The Units of Account are described in art 8 of the Schedule as the 'special drawing right as defined by the International Monetary Fund'.

Under Pt 2 of Ch 5 of Sch 6, art 5 provides that the general limits referred to in para 1(a)(i) of art 6 for ships of less than 300 tons are 1 million units of account, with the corresponding limit referred to in para 1(b)(i) being 500,000 units of account. This is material because both the jet ski and the speedboat weigh significantly less than 300 tons. If the defendants are entitled to limit their liability, the limits set out in para 5 of Pt 2 of Ch 5 of Sch 6 will apply: 1 million units of account for claims for loss of life or personal injury is approximately GBP 1.1 million. The limit in respect of any other claims is approximately GBP 550,000.

In relation to what is a ship, art 1(1) of the Law defines a ship as including 'every description of vessel used in navigation'.

Held: Application dismissed.

The preliminary issue will not be determinative of anything if the plaintiff was right that no limit to liability applied. It will also not be determinative if only one defendant was successful. If both defendants were successful, as matters stand, while the defendants believe that the amount of the claim might exceed the limit of liability, that position is not yet clear. A trial on quantum will still be needed, because the effect of the preliminary issue would simply be to determine the maximum liability, if any, and not what is due to the plaintiff. There is therefore a real possibility of the action continuing either because a limitation of liability does not apply to one or both defendants, and also to determine what damages are actually due.

Determination of the preliminary issue will also not significantly cut down the cost and time of a trial on quantum if only one defendant is successful, or if the plaintiff is successful in that no limitation of liability applies.

While determination of the issue as to whether a jet ski is a ship (the ship issue) is a matter for the trial Court, the outcome that the second defendant as owner of the jet ski will not be able to limit liability is a real possibility, and therefore is one that the Court is entitled to have regard to in considering how far the preliminary issue might avoid the need for a trial on quantum.

In Steedman v Scholfield [1992] Lloyd's Rep 163, the Admiralty Court reached the conclusion that a jet ski was not a vessel. In the alternative, Sheen J concluded at p 166 that:

a jet ski is capable of movement on water at very high speed under its own power, but its purposes not to go from one place to another. 'A person purchases a jet ski for the purpose of enjoying "the thrills of water-skiing without the ties of a boat and towrope" and for the exhilaration of high-speed movement over the surface of water. The heading of the craft at any particular moment is usually of no materiality.' (I use the word 'heading' because it is more appropriate than the word 'course'. the word 'course' denotes a constant direction on the same heading.) indeed part of the thrill of driving a jet ski appears to come from frequent alterations of heading at high speed. it may be possible to navigate a jet ski but, in my judgment, it is not 'a vessel used in navigation'.

In R v Goodwin [2005] EWCA Crim 3184, the Court of Appeal, when considering whether or not the driver of a jet ski had committed an offence contrary to the Merchant Shipping Act, allowed the appeal and ruled that the jet ski in question, although capable of being a vessel, was not being used in navigation. The headnote set out the Court of Appeal's conclusion as follows:

the words 'used in navigation' excluded craft, such as the jet ski, that were simply used for having fun on the water without the object of going anywhere; that, further, although jet skis were used on the sea in proximity to land, they did not go to sea on voyages, nor were they likely to be seaworthy in heavy weather and, therefore, could not be described as 'sea-going' for the purposes of regulation 4 of the Merchant Shipping Act 1970 (Unregistered Ships) Regulations 1991 ...

The Court refers to these authorities because they appear to be against the second defendant and, if followed in this jurisdiction, mean that there is a significant risk that a trial on quantum will still be required. The characteristics and use of the jet ski in this case may be different, and therefore the approach taken in England may be capable of being distinguished on the facts. All parties reserved their position on both the applicable legal principles and how they should be applied in the present case as being matters for trial.

Evidence of fact will be required in relation to the characteristics of the second defendant's jet ski, and whether it was a vessel, and how that jet ski was used. Evidence will also be required in relation to the first defendant's speedboat, as it is also disputed by the plaintiff that this was a vessel used in navigation. In addition, there is likely to be disputed expert evidence, both as to the characteristics of the jet ski and whether it was a vessel used in navigation. The parties cannot even agree on what experts are required. There may also be disputed expert evidence about the characteristics of the speedboat.

The plaintiff is entitled to know where he stands on all outstanding issues, and his approach is not disproportionate or unfair. He suffered a tragic accident with significant consequences for which he was not to blame. He should not be kept out of an assessment of what damages follow from that accident any longer than is necessary.

The defendants have not persuaded the Court that it should reach any different conclusion. The defendants, with the benefit of experienced advisers, are able to form an assessment about the likely prospects of success in relation to the ship issue as part of the evaluating quantum (as is the plaintiff). Certainly a decision on the ship issue is not required to make that assessment.

If the defendants are ultimately right that they can limit liability, but they have been put to the expense of a trial on quantum, because the plaintiff will recover significant damages at least up to any limit that is found to apply, the defendants are also protected because they can have recourse to any damages awarded in order to enforce any costs order in their favour on the ship issue if such a costs order is made. This is not therefore a case of the defendants being compelled to incur significant costs without any recourse to recover those costs if the arguments they wish to advance ultimately prevail.