On 10 May 2017, a helicopter was landing on the aft leisure deck of a superyacht, the Bacarella, in Bergen Harbour in Norway. The cover of a fuel tank on the deck of the vessel was blown off by the down blast of the helicopter. The cover was pulled into the rotating blades of the aircraft. Control of the helicopter was lost, but due to the exceptionally fast actions of the pilot in command, Captain Smith, the helicopter was able to be ditched in the sea instead of crashing onto the yacht.

The helicopter was a constructive total loss. The value was agreed at GBP 2,092,369. The first claimant was the owner of the helicopter; the second claimant was its insurer. Although originally there was an issue as to which of them was entitled to bring the current action to recover the value of the helicopter, it is now common ground that it must be one or the other. The defendant is a British Virgin Island (BVI) company that owned the Bacarella. The vessel was registered in the Cayman Islands. The crew were employed by another company in the same stable.

One of the issues was whether the defendant was entitled to limit its liability under s 391 of the BVI Merchant Shipping Act 2001 (the Act), which gives domestic effect to the LLMC 1976.

Held: The defendant is entitled to limit its liability under the Act.

Section 390(1) of the Act says: 'Shipowners and salvers may limit their liabilities in accordance with this Chapter.' The Act reproduces the text of the LLMC 1976. The Act has to be construed in the same way as the Convention. The claimant refers to the case of CMA CGM SA v Classica Shipping Co Ltd (The CMA Djakarta) (CMI728) where the Court of Appeal made clear that the Court should avoid placing a gloss on the words used in the LLMC 1976 which is not apparent from the words used. This approach was approved by the Supreme Court of the United Kingdom in Gard Marine & Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) (CMI16). It was also agreed in The CMA Djakarta that the object and purpose of the LLMC 1976 was as follows:

(a) the general purpose of owners, charterers, managers and operators being able to limit their liability was to encourage the provision of international trade by way of sea carriage;
(b) the main object and purpose of the 1976 Convention was to provide for limits which were higher than those previously available in return for making it more difficult to 'break' the limit, to use the colloquial expression. Before 1976, any person, arguing in the United Kingdom that the limit should not apply, only needed to show 'actual fault or privity' on the part of the party relying on the limit. Under the 1976 Convention the (now higher) limit is to apply unless it can be shown that the loss resulted from the personal act or omission of the party relying on the limit 'committed with intent to cause such loss or recklessly with the knowledge that such loss would probably result'. It is thus particularly difficult to break the limit, but the amount available for compensation is higher than it was previously;
(c) one of the other objects of the Convention was to enable salvors to claim that their liability could be limited in the same way as owners and charterers.

The Court of Appeal accepted this formula, and held that it was 'not ... possible to ascertain with certainty any object or purpose of the LLMC 1976 beyond this common ground'.

Section 391 of the Act, in so far as relevant, applies limitations to losses occurring on board or in direct connection with the operation of the ship. It is common ground that what occurred was off the ship because the destruction of the helicopter took place before the helicopter had landed. Instead, limitation is argued on the basis as to whether the accident was in direct connection with the operation of the ship. The claimant argues that:

The connection must be directly related to the operation of the ship, as a ship, not a non-maritime or aviation function which is being carried out on it ... . There is no case supporting the proposition that an activity, such as a landing facility for aircraft, not integral to the operation of a ship as such, or its typical maritime trade, is to be treated as 'the operation' of the ship for the purposes of the Convention. On the contrary, such authorities as there are suggest that the operation of the ship has to be something integral to essential functions as a ship. The purpose of the Convention is to provide maritime trade, not other activities of shipowners such as aviation. The line has to be drawn somewhere. It is also clear from above that the types of activities that are treated as part of the operation of the ship cannot stretch to the present facts, and would be most unlikely to have been the type envisaged when the provisions of the 1976 Convention, on which Section 391(a) is based, were drafted.

A difficulty with the claimant's argument is that there is necessarily a grey area on this analysis. In an international Convention of this type, that is inherently unlikely. The drafters of international Conventions will strive to establish bright lines.

Applying the guidance as to the interpretation of international Conventions, was the landing of the helicopter on 10 May 2017 in direct connection with the operation of the motor yacht Bacarella? The claimant sought to analyse this question in terms of whether this was an operation of the ship qua ship and said that the landing was the Bacarella acting qua aerodrome. This sort of Aristotelian analysis is not appropriate. Whether St Thomas Aquinas would have considered that there was a change in the Aristotelian substance of the Bacarella when the ship took on the function of an aerodrome is not a relevant question in construing an international Convention.

The operation of a ship can involve numerous different processes. There is no difficulty in saying that a ship can operate as a floating helicopter landing point and that, when it is operating in that way, it is also operating as a ship. It is simply wrong to make a distinction between ship qua ship and ship qua aerodrome. A ship like the Bacarella can be both at the same time.

This was a superyacht which was being used for a holiday by helicopter enthusiasts. The landing of the helicopter was in direct connection with that use of the vessel and therefore was in direct connection with the operation of the ship.

[For subsequent proceedings, see HQ Aviation Ltd v Sun Vessel Global Ltd (CMI2046).]