Ship Recycling and Liability
Preface
The expansion of trade has led to increasing regulatory uncertainty, especially in the maritime field due to its international nature. Written as part of my LLM in Maritime Law at the University of Oslo in April 2022, my thesis addresses these uncertainties in the field of ship recycling and liability for former ship agents and owners towards shipyard workers.
Ship recycling has been regulated through various international instruments and national legislation, but without much actual effect as to limit the unsafe and non-environmentally friendly recycling practices. However, recent case law examines a former ship agents’ responsibility for the death of a shipyard worker based on the knowledge the ship agent ought to have had about the danger created by selling the vessel for recycling. Thus, the tendency points towards the fact that increasing access to information may create a regime of liability under a duty of care not otherwise available through existing legislation.
I hereby extend my gratitude to my academic supervisor, Alla Pozdnakova, for dedicating her invaluable time and knowledge to my project. Special gratitude goes to my significant other, Niclas Kongstad, for always being you and putting your trust in me. Thank you, friends and family. Finally, I congratulate myself for reaching the honorable milestone of being published.
Abstract
The area of liability is facing new difficulties with globalisation and trade expanding. This has also become evident in the maritime industry. An industry, which due to its international nature, inevitably is involved in various parts of the world with endless possibilities for incurring liability both in contract and tort. Especially, the area of ship recycling has within the last decade been exposed to the medias’ eyes and criticism. Even though the area is somewhat regulated, the cases highlighted by the media have shown how the regulatory framework has been unable to combat the issues involved. For this reason, the present thesis aims at assessing the extent to which the gaps in the legal regime of ship recycling are caught by other legal mechanisms, namely the English duty of care notion as applied by the courts.
The recycling of ships is regulated by various instruments at an international level. The thesis concludes that the regulatory regime contains three main gaps. These are the difficulties of proving subjective elements, as it is required that intent to recycle a vessel is present before the Basel Convention and EU Waste Shipment Regulation is applied. Furthermore, the same rules contain the gap that it is possible to argue that the decision was made outside the territory of a party to the rules. Lastly, for EU-flagged vessels, the main gap is that a ship can be reflagged.
Under English Tort law, a duty of care exists, when the relationship is one of proximity, it is foreseeable and fair and just and reasonable to impose such duty. In addition, there is a duty of care for someone who creates a danger exploited by a third party. These two grounds were used for asserting that a former ship agent was liable vis-à-vis a shipyard worker who fell to his death during the demolition of the vessel of the agent in Hamida v Begum. The Courts held that the Claimant had a real prospect of succeeding with the second ground and thus dismissed to strike it out. The thesis concludes that the case is a landmark case in the area of liability for shipowners, ship operators, etc. for their acts and omissions in relation to end-of-life vessels. Even though the case faces extensive hurdles, it is nevertheless arguable that the criteria for a duty of care can be met, because of the knowledge of the seller of the vessel, and thus the foreseeable and proximate conditions. The last requirements paired with the floodgate argument, may be an obstacle. However, the wider tendency to impose liability in similar areas of liability speaks in favour of stretching the duty of care to encompass the present.