Targe Towing Ltd and Scheldt Towage Company NV (the plaintiffs) made a claim against the owners of a backhoe dredger named the Von Rocks (the defendant) in negligence and breach of contract. The plaintiffs claimed that the defendant failed to adequately prepare the Von Rocks for towage from Sweden to Scotland. While the Von Rocks was in Irish territorial waters, the plaintiffs sought an order for its arrest, and claimed that the court ought to assume jurisdiction pursuant to art 2 of the Arrest Convention 1952.

On 14 November 1996, the court directed the Admiralty Marshal to arrest the Von Rocks. The Admiralty Marshal complied with this order and the Von Rocks was arrested, although it was permitted to continue to work on contract as a dredger.

The defendant challenged the validity of the arrest of the Von Rocks on the ground that it was not ship within the meaning of the relevant legislation. The issue before the Court was whether a backhoe dredger such as the Von Rocks was a ship for the purposes of s 13(2) of the Jurisdiction of Courts (Maritime Conventions) Act 1989 (the 1989 Act) which gives effect in Ireland to the Arrest Convention 1952.

Held: Judgment for the defendant. The Von Rocks is not a ship within the meaning of the 1989 Act and the Arrest Convention 1952. It should be released from arrest.

The Von Rocks is a maritime dredger. This type of dredger is primarily used in harbours, channels or estuaries to deepen the waters at such locations. When not in operation, it is a floating platform comprising ten individual pontoons bolted together. When in use, it is held in position on the seabed by three spud legs which are capable of being hydraulically lowered and raised. When the legs are lowered to the seabed at the site of dredging the platform becomes a rigid structure and remains that way until the legs are withdrawn and the structure floats again. It has no bow, no stern, no anchors, no rudder or any means for steering, and no keel or skeg. It has no means of self-propulsion, mechanical or otherwise, and it has no wheelhouse. One end is rounded to facilitate the operation of the dredger. It has a lighting tower to illuminate the deck and to warn passing vessels of its presence. It has a steel cabin fixed on the platform that contains an office and a toilet. It does not have an ability to carry cargo, spoil or personnel other than those engaged in the dredging operation. When under tow from one contract site to another, the dredger is unmanned and plays no part in the performance of the operation.

In obtaining the warrant for arrest, the plaintiffs rely upon s 13(2) of the 1989 Act which gives effect to the Arrest Convention 1952.

Article 2 of the Arrest Convention 1952 provides: 'A ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the contracting states in respect of any maritime claim'. It follows from that provision that the jurisdiction to arrest is confined to a 'ship'. In s 13(2) of the 1989 Act 'ship' is defined as follows: '"Ship" includes every description of vessel used in navigation'. The term vessel is defined in the same subsection as follows: '"Vessel" includes any ship or boat, or any other description of vessel used in navigation'.

These definitions, which have had continuous existence in admiralty law in this jurisdiction from 1894, have two common features. First, the definitions of 'ship' and 'vessel' are inclusive and non-exhaustive. The right to arrest a ship is a far-reaching weapon not found in other aspects of the common law. It provides the claimant of a maritime debt with a form of security, being the value of the debtor's interest in the ship and/or cargo. The arrest of the ship may have far reaching consequences for the alleged debtor through interference with the immobilisation of the vessel after arrest. Therefore, it is important that the person seeking to exercise that remedy establishes that the craft to be arrested is in fact a ship or vessel as defined in the 1989 Act. In light of the potentially far-reaching consequences of arrest for a shipowner, the court should be cautious in extending the definition of what is a ship in the context of the Arrest Convention 1952.

The second common feature is that the ship, boat or vessel must be 'used in navigation'. The authorities make it clear that this does not imply that for a floating object to be a 'ship' or 'vessel', it must be capable of self-navigation. It is well established that many types of barge or similar vessel, though incapable of self-propulsion, are 'ships'. Whether a craft is a ship or vessel for the statute depends on the facts of the case.

Halsbury’s Laws of England state that '[t]he purpose for which a vessel has been and is being used is also material when considering whether she is used in navigation'. A backhoe dredger is not 'constructed for navigation' as postulated in Halsbury. Its nature and construction when in operation is that of a rigid platform to which dredging machinery is attached.

When considering whether a particular craft is a ship or vessel within the meaning of the 1989 Act the Court should look primarily to the basic nature and purpose of the structure when in operation. A rigid dredging platform secured to the seabed by substantial hydraulic legs approximately 22 metres high and 1.2 metres square has no capacity for movement and is clearly not a ship or vessel when set up for work. In course of its operation it temporarily becomes a floating object when the legs are raised and it is towed a few metres forward after it has removed all spoil from a given area within the range of the dredging arm. These negligible movements cannot reasonably be regarded as 'used in navigation'. Likewise, the towage of the craft by sea for substantial distances from contract site to contract site does not constitute use of the craft in navigation as postulated by the 1989 Act. It is unmanned, has no capacity for self-propulsion, and has no rudder or any form of steering mechanism. An object under tow which takes no part in the towing operation cannot reasonably regarded as being 'used in navigation'.

Sheen J in Steedman v Scofield [1992] 2 Lloyd’s Rep 163 defined the phrase 'used in navigation' as the 'concept of transporting persons or property by water to an intended destination. ... "Navigation" is not synonymous with movement on water. Navigation is planned or ordered movement from one place to another. A jet ski is capable of movement in water at very high speed under its own power but its purpose is not to go from one place to another.' Sheen J also referred to the navigator being able to determine the ship’s position and the future course to be steered to its intended destination. The Von Rocks is not capable of any of these requirements.

In addition Atkinson J in Polpen Shipping Co Ltd v Commercial Union Assurance Co Ltd [1943] All ER 162 observed 'the dominant idea is something which is "used in navigation" and not merely capable of navigating for the moment.' Even if the Von Rocks were deemed capable of navigation when being towed minute distances, its use in navigation at sea is not the real work of the dredger but merely incidental to its primary purpose of being a rigid platform for dredging.

The fact that the definitions of 'vessel' in other statutes include fixed or floating platforms indicates that the definition found in the 1989 Act is not wide enough to do so.

[For the successful appeal, see The 'Von Rocks' ​[1998] 2 Lloyd's Law Rep 198 (CMI737).]