By Foluke Akinmoladun
In support of a general negligence claim, a claimant must establish that (1) the defendant owed the claimant a duty of care; (2) the defendant breached the duty; (3) the claimant suffered damages; and (4) the breach of the duty proximately caused the damages. Whether a defendant owes a duty to a claimant depends on various factors, and the primary indicator of duty is whether the harm suffered by the plaintiff was foreseeable.
In the United States’ case of Crear v. Omega Protein, Fifth Circuit Court of Appeals January 26, 2004, the district court granted summary judgment to defendant fishing vessel owner where a former employee who had suffered a head injury onboard murdered his grandmother 13 months later. A reasonable employer in defendant’s position would not have foreseen that its negligence in failing to properly affix a stern pole would cause an injured seaman to murder another person.
On explaining the duty of care, in another US case of In re Graham Offshore, Fifth Circuit Court of Appeals April 9, 2002, it was held that nothing in the law imposes a legal duty on a rig owner to oversee that the operations of the boat that is used to evacuate personnel from the rig. This was held to instead be the duty of the boat owner and the boat’s time charterer. Therefore, it is important to be able to establish a duty of care before a case for negligence and subsequent damages can be upheld.
In expatiating on the tort of conversion, the Federal Court of Australia held that claims for delivery up of a ship and for damages for conversion and/or detinue were properly characterised as claims ‘relating to possession of a ship’ on the basis that such claims seek to vindicate the claimant’s right to possession. While claims in conversion and/or detinue are not claims for possession, the effect is that such claims are ‘proprietary maritime claims’ and therefore are sufficient to found the court’s jurisdiction to entertain an action in rem against the vessel. In an action in conversion therefore, whether successful or unsuccessful, can never change possession of the chattel itself but can result in a successful claim for damages.
The expression “a man may not use the highway to stable his horse” reflects the rule of law of the public right of navigation. This reflects the fact that the public right of navigation does not extend to the right of an individual to anchor or moor beyond what is reasonably necessary for the active navigation of their vessel.
The maritime tort of trespassing can thus be understood in the light of the differences between anchoring and mooring. Anchoring is the temporary manner of securing a vessel using tackle that is intended to be hauled aboard the vessel, while mooring is a more permanent method of securing a vessel using ground tackle which is not intended to be, and cannot conveniently be, brought aboard the vessel. The reason these definitions become important is that anchoring is often referred to as mooring, and vice versa, but unlike anchoring, the owner of a vessel who leaves their mooring behind (such as a concrete block and float) may be trespassing even though their vessel is nowhere to be seen.
The Himalaya clause, commonly used as a defense in a claim in tort, as a tort by definition does not require a contractual obligation or privity of contract. Once an injury can be claimed to be connected to an action, a successful claim can be brought. The Himalaya clause, though a contractual clause contained chiefly in bills of lading (but in charter-party agreements alike), has been conceived by maritime commercial practice to protect subjects involved in the various operations of carriage of goods by sea including those who are not directly party to the contract of carriage. Such persons may still be exposed to the claims of the cargo interests without being able to avail themselves of the defenses and limitations of liability that the carrier can benefit from being party to the contract. Therefore, the Himalaya clause is a type of defense, limitation of liability or avoidance of liability where a maritime tort may arise and contractual limitation of liability does not apply.
By way of background, a Himalaya clause is a contractual provision that seeks to provide servants, agents and subcontractors of a carrier by sea with the same protection afforded to the carrier by the contract of carriage. The clause takes its name from a decision of the English Court of Appeal in the case of Adler v Dickson (The “Himalaya”)  2 Lloyd’s Rep 267. In this case the claimant was a guest onboard the S.S. Himalaya. During the subject voyage she was injured when a gangway fell, throwing her onto the quayside below.
A maritime incident must be substantially connected to a traditional maritime activity in order to be considered as maritime tort. There are various types of maritime tort but the common factor is that there was an injury caused and damages arose from them and damages could be claimed. The Himalaya clause provides a defence to claims that may arise in tort for parties involved in the carriage of goods but not protected under the contract of the carriage of goods.
Foluke Akinmoladun is a lawyer, accountant, mediator and arbitrator. She is the Managing Solicitor of Trizon Law Chambers and can be reached at: Foluke.A@trizonlawchambers.com