This was an appeal from the decision of Barr J in Targe Towing Ltd v Owners of 'Von Rocks' [1997] IEHC 198 (CMI734) which held that for the purpose of the Jurisdiction of Courts (Maritime Convention) Act 1989 (1989 Act), which gives effect to the Arrest Convention 1952, a backhoe dredger is not a ship and cannot be arrested.

The first plaintiff was the operator and the second plaintiff was the demise charterer of a tug, the Jerome Letzer, which towed the Von Rocks from Sweden to Scotland. During the course of the voyage across the North Sea, the Von Rocks capsized and was seriously damaged. The insurers of the Von Rocks instituted proceedings in Sweden against the plaintiffs claiming damages amounting to the insured amount of the dredger on the ground that the damage was caused by the negligence of the crew of the Jerome Letzer in the course of towing. The plaintiffs instituted proceedings in the High Court of England and Wales seeking a declaration that under the terms of the towing agreement, they were entitled to be indemnified by the owners of the Von Rocks in respect of the claim made by the insurers. They also claimed GBP 16,598.51 in respect of towage services provided by them.

On 14 November 1996 the plaintiffs sought the arrest of the Von Rocks which was duly implemented by the Admiralty Marshal. Following the arrest the defendant brought a motion before the High Court seeking an order directing the release of the Von Rocks and setting aside the warrant of arrest. Barr J ordered that the Von Rocks be released forthwith and dismissed the proceedings brought by the plaintiffs.

The plaintiffs appealed, submitting that the definition in s 13(2) of the 1989 Act was inclusive and non-exhaustive and that the trial Judge erred in holding that the Von Rocks was not a 'vessel used in navigation'. Further, the plaintiffs submitted that the trial Judge adopted an incorrect approach in holding that a heavy onus lay on the plaintiffs to establish that this was a 'ship' for the purposes of the relevant legislation.

Held: Appeal allowed. The order of the High Court is substituted with an order arresting the Von Rocks.

Article 2 of the Arrest Convention 1952 provides that: '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, but in respect of no other claim'. It is not in dispute that in this case that the Von Rocks was at the time of the arrest within the territorial waters of the State and accordingly within its jurisdiction. Nor is it in issue that the relief being claimed by the plaintiffs in the English proceedings is for a 'maritime claim' within the meaning of art 1.1 of the Arrest Convention 1952.

Section 13(2) of the 1989 Act provides that:

For the purposes of the (Arrest Convention 1952) and this Act, unless the context otherwise requires –

'Ship' includes every description of vessel used in navigation;

'Vessel' includes any ship or boat, or any other description of vessel used in navigation.

This definition of 'vessel' is identical to that used in s 742 of the Merchant Shipping Act 1894. The definition of 'ship' in that Act is also identical to that in the 1989 Act save for the addition of the words 'not propelled by oars' and these words are also to be found in the definition of 'ship' contained in the Mercantile Marine Act 1955. Two features of the definition in the 1989 Act are of importance. First, the word 'includes' indicates that the definition is not intended to be exclusive or exhaustive. Secondly, the word 'ship' is, in a somewhat circuitous fashion, expressly extended to include a 'boat'. 'Ship' in the 1989 Act and the Arrest Convention 1952 thus includes a rowing boat propelled by oars. That of itself is of no immediate relevance but it reinforces the impression given by the use of the word 'includes' that the legislature have deliberately adopted a wide-ranging definition of the word 'ship'.

The authorities demonstrate that it would be difficult, and not particularly helpful, to attempt to formulate a general definition of 'ship' or 'vessel' applicable to every case. However, one can take as a starting point that as a minimum, the object under consideration must not merely be capable of traversing the surface of water, but must spend a reasonably significant part of its operative life in such movement.

It is clear that to come within the definition of a 'ship' it is not essential that the craft under consideration should be capable of self-propulsion. Barges which have no power of their own and are usually towed have been held to be ships (The Mac (1882) Asp MLC 555). The presence of a rudder and the manning of the craft with crew, while an important factor in determining whether the craft is a 'ship' or a 'vessel', is not of itself conclusive (The Queen v St John Ship Building and Dry Dock Co Ltd [1981] 126 DLR (3d) 353). That the carriage of cargo or passengers is not the exclusive or even the primary object for which the craft is being used is also not decisive (Hanly v Kerry County Council). The preponderance of judicial opinion would support the view that, provided the craft was built to do something on water and for the purpose of carrying out that work, was so designed and constructed to be capable of traversing significant water surfaces and did in fact regularly traverse them, it is capable of being classified as a 'ship' despite the absence of any form of self-propulsion or steering mechanism, such as a rudder.

Some of the authorities treat the expression 'used in navigation' as connoting 'free and ordered movement from one place to another' (Polpen Shipping Co Ltd v Commercial Union Assurance Co Ltd). However, that does not necessarily mean the craft must have some form of self-propulsion, a rudder or other means of steering or a crew. The free and ordered movement from one part of the water to another may be the result of towing as in the case of barges and floating cranes. Although in Steedman v Scofield [1992] 2 Lloyd’s Rep 163, when considering whether a jet ski was a ship, Sheen J said that, '[t]o my mind the phrase "used in navigation" conveys the concept of transporting persons or property by water to an intended destination', the preponderance of authority is against that view. Sheen J also observed that the purpose of a 'ship' is to go from one place to another. With respect, this is questionable. In the case of non-commercial craft, such as yachts, it is unreal to regard their purpose as being a journey from one point to a specific destination.

In any event, the definition of 'ship' in the Arrest Convention 1952 is non-exhaustive and accordingly, a craft which might not be regarded as 'used in navigation' in the conventional sense might nonetheless be appropriately categorised as a 'ship'. The trial Judge erred when he took the view that a 'strong onus' rested on the plaintiffs to establish that the Von Rocks was a 'ship' within the meaning of the relevant legislation. That approach does not conform with the wide-ranging definition employed by the Arrest Convention 1952 and gives insufficient weight to what must be presumed to be the underlying policy of this legislation. A person or business that extends credit to the owners of a ship may find that the only asset to which it can have recourse has left the jurisdiction. In contrast, the assets of a debtor within the jurisdiction were regarded as being more readily available to satisfy the creditors. The Von Rocks undoubtedly lacks some of the characteristics one would normally associate with a 'ship'. It is not self-propelled, it normally is not manned by a crew and it has no form of rudder or other steering mechanism. But it is a structure designed and constructed for the purpose of carrying out specific activities on the water and in fact spends significant periods of time moving across the seas from one contracting site to another. If it is to do its normal work it must be in a seaworthy condition and it would seem the regulatory authorities here and elsewhere treat it as subject to compliance with the normal requirements of seagoing vessels. Having regard to the non-exhaustive and wide-ranging definitions supplied by the Oireachtas and the policy which must be assumed to underlie the legislation, the Von Rocks should be regarded as a 'ship' within the meaning of the Arrest Convention 1952.