Maran UK v Begum – does English law apply to a fatal accident in a Bangladeshi shipbreakers?

In this recent decision the High Court refused to strike out a claim brought in England by the widow of a Bangladeshi ship worker who had died when he fell during the breaking of a ship disposed of in Bangladesh by an English company. The case turned on the existence (or not) of a duty of care and on the applicable law.

The ship worker’s widow issued proceedings in England against an English company (Maran UK) claiming it was responsible for the disused ship (The Maran Centaurus) ending up in Bangladesh. The company sought to strike out and/or secure summary judgment in its favour arguing that it did not owe a duty of care to the deceased. The claimant submitted that a duty of care arose because, according to her argument, it should be inferred from the evidence that the defendant disposed of the ship to a third party knowing it would be broken up in Bangladesh (where safety standards were said to be lax).

Given the preliminary nature of the argument, Mr Justice Jay noted that tortious liability for third parties was an involved and developing area of the law, meaning it was unnecessary to reach a definitive conclusion on the existence of a duty of care at this summary / strike out stage, since the claimant was not seeking to prove the point conclusively but rather was looking to preserve the right to argue it. The judge relied on this extract of Lord Browne-Wilkinson’s speech in Barrett v Enfield London Borough Council [2001] in which he referred back to his own speech in the lead case X v Bedfordshire [1995]: “I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff’s claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing … it is not normally appropriate to strike out.”

He then considered the applicable law. In respect of the claim in tort, he resolved that it was a straightforward question answered by article 4.1 of the Rome II regulation. Bangladesh was “the country in which the damage occurs” and its law would apply. “All the circumstances of the case” could not be “more closely connected with” – article 4.3 – England merely because the defendant was based here.

However, the claimant also argued that the accident gave rise to a claim for environmental damage, which is governed by article 7 of the regulation, which provides that “The law applicable to a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred.”

It followed that in order for English law to apply and displace Bangladeshi law* otherwise applicable under 4.1, the claimant would need to persuade the court on two points: that the claim was one for environmental damage and that the event giving rise to such damage had occurred in England.

Jay J adopted an extremely broad approach to the former, holding that despite the immediate proximate cause of the death being the fall from the ship, “on a broader, purposive approach the accident resulted from a chain of events which led to the vessel being grounded at Chattogram, in consequence of which damage was no doubt caused at very least to the beach and tidal waters.”

The former test had to a large extent already been fulfilled, in as much as the judge was prepared to accept at this early stage that it was arguable that the defendant owed a duty of care, the breach of which – the tortious event – took place in England in commencing the sequence of events to dispose of the ship in the knowledge it would be broken up in dangerous conditions in Bangladesh.

[* It is worth noting that had Bangladeshi law applied, whether to the conventional tort claim or to the environmental claim, its limitation provisions would mean the claims would have been time-barred.]

The decision not to strike out the claims and therefore to allow the claimant to argue for the existence of a duty of care looks to be a fairly orthodox one at an early procedural stage, given the developing nature of the law on liability for third parties. However, the very wide interpretation of “environmental damage” for the purposes of ascertaining the applicable law is surely much more contentious and might, depending on defendant’s assessment of prospects, be the object of an appeal.

Alistair Kinley – Director of Policy and Government Affairs, BLM

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