The claimant was the owner of the fibre-optic telecommunications cable which ran across the Irish Sea between Lytham St Annes, England and Dublin, Ireland. The defendant was an individual domiciled in Ireland who owned the motor fishing vessel Willie Joe, registered in Ireland.

The claimant alleged that the cable was damaged by the defendant's vessel while he was scallop trawling, and brought an action for damages. The defendant applied for an order that the Court lacked jurisdiction.

The parties accepted that the location of both the alleged collision and physical damage to the cable and, therefore, the alleged act of negligence occurred in the exclusive economic zone (EEZ) of the UK. The issue was whether the Courts of England and Wales had jurisdiction over the claim, taking into account the effect of Regulation (EU) No 1215/2012 of the European Parliament and of the Council ( Regulation).

The claimant submitted, among other things, that the Court had jurisdiction under the Regulation. The break to the cable occurred within the EEZ of the UK, and occurrences within the EEZ amount to occurrences within the jurisdiction. The United Nations Convention on the Law of the Sea 1982 (UNCLOS) predated the Regulation, which is subject to pre-existing Convention regimes that govern jurisdiction. Article 56 of the UNCLOS confers sovereign rights over the EEZ 'for the purpose of exploring, conserving and managing the natural resources, whether living or non-living, of the waters adjacent to the seabed and of the seabed and its subsoil'.

The defendant's position was that unless a claim arises out of an activity related to the economic exploitation or exploration of resources within the EEZ in respect of an activity related to the economic exploitation or exploration of resources within the EEZ where the coastal State has the sovereign or exclusive right to perform under the UNCLOS, a tortious act occurring within the EEZ is not a tort within England and Wales, so that the Court has no jurisdiction. The freedom or right to lay subsea cables within an EEZ is not sovereign or exclusive to the coastal State under the UNCLOS, but is something that all States can do. The defendant also argued that if the claimant's arguments were correct, an English Court would have jurisdiction over a collision within its own EEZ. Such a conclusion would be a departure from current jurisdictional provisions relating to collisions.

Held: The Court has no jurisdiction over the claim.

In the case of collisions between ships, the in personam jurisdiction of the Admiralty Court is governed by s 22 of the Senior Courts Act 1981 (UK) [based on art 1 of the Collision Convention 1952]:

(2) The High Court shall not entertain any action in personam to enforce a claim to which this section applies unless

(a) the defendant has his habitual residence or a place of business within England or Wales; or

(b) the cause of action arose within inland waters of England or Wales or within the limits of a port of England or Wales; or

(c) an action arising out of the same incident or series of incidents is proceeding in the court or has been heard and determined in the court …

Section 22 does not refer to incidents involving a single ship in collision with a fixed object or installation and is not directly applicable to the present circumstances. However, the Admiralty Court does not have any greater rights over a collision with a fixed structure than it would with respect to any collision between ships. Therefore, the Courts of England and Wales will not have jurisdiction over incidents occurring outside territorial waters unless some Act or rule gives the Courts such jurisdiction.

Article 7.2 of the Regulation provides: 'A person domiciled in a Member State may be sued in another Member State: (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur'.

The relevant provisions of the UNCLOS are found in Pt V. Article 55 clearly indicates that the scope of the extension of powers or rights within the EEZ is limited. The UNCLOS does not, and is not intended to, give a coastal State total rights and sovereignty over the area. That is further explained by Article 56, which is headed 'Rights, jurisdiction and duties of the coastal State in the exclusive economic zone', which does give sovereign rights over certain aspects of the operations within the zone. However, these are limited, under art 56(1)(a), to rights for: (1) the purpose of exploring and exploiting, conserving and managing the natural resources of the waters superjacent to the seabed and of the seabed and its subsoil; and (2) with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. Under art 56(1)(b), jurisdiction is also limited with regard to the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment.

It is self-evident that the overall purpose of the UNCLOS is to allow a coastal State certain powers and rights over structures such as oil platforms and structures which are specially in need of protection. However, it is also clear that submarine cables do not fall within the definition of the interests referred to in the UNCLOS.

Article 58(1) of the UNCLOS provides:

In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines …

Article 58(1) clearly resolves any questions related to whether a coastal State is entitled to exercise jurisdiction over the presence or operation of submarine cable by specifically ranking them with other aspects of marine operation which are considered outside the extension of sovereignty and jurisdiction provided by the UNCLOS, such as the operation of ships.

The coastal State will only have jurisdiction where the damage occurring within the EEZ arises out of a particular activity over which the coastal State has sovereignty or an exclusive right to perform under UNCLOS and/or where it is granted exclusive jurisdiction in respect of the activity.

The mere fact that the alleged damage to the cable occurred in circumstances where the defendant was fishing does not bring the case within the jurisdiction of the English courts. The purpose of art 56 of UNCLOS is to allow coastal States to monitor and control fishing and fishing rights within the EEZ, and to permit the use of fishery protection vessels for that purpose and to prosecute fishers of any nationality who breach rules relating to the size and species of fish to be caught and monitor any relevant quotas. In this sense, the operation is to oversee and enforce the relevant area. However, there is nothing which suggests that the coastal State may assume jurisdiction with respect to civil disputes arising out of fishing. Such an assumption of jurisdiction would be directly contrary to the spirit and intent of the Convention for the Protection of Submarine Telegraph Cables 1884 and considerations of comity between nations. As domestic law should act in accordance with the nation's treaty obligations, it follows that matters arising in respect of submarine cable should be reserved to the jurisdiction of the court of the vessel or of its port of registry.