The law of tort does not stand still: Begum v Maran (UK) Limited
The Court of Appeal reaffirmed that there was an arguable case for the English former owners of a ship to answer in refusing to strike out the claim of a Bangladeshi widow whose husband had been killed whilst breaking up the ship in the Bangladesh shipbreaking yards in Chittagong.
The facts
The claimant was the widow of a Bangladeshi shipyard worker killed in a workplace accident at the Chittagong beach breaking yards. It was accepted that the working conditions in Chittagong were dangerous. The widow, herself a Bangladeshi resident and national, chose not to sue the shipyard owners but to sue the former owners of the ship, formerly the Maran Centaurus, being broken up.
The ship had been sold at the end of its life to a Singapore cash buyer, it had been reflagged and renamed the Ektar. The ship made its final voyage to Chittagong where it was sold to the scrapping yard and was broken up on the beach. Whilst the defendant had no control over the shipyard, was not party to the sale nor to the subsequent sales, it was assumed that for the purposes of the application that the defendant knew that the ship would make its way to Bangladesh for breaking up as opposed to one of the reputable Chinese or Turkish breaking yards where standards were much higher but where the breaking was more expensive.
The claim
The claimant sued under English law in negligence and unjust enrichment for damages under the fatal Accidents Act 1976, and in the alternative under Bangladeshi law. The defendant applied to strike out the claim on the basis that it owed no duty of care and alternatively that the claim was statute barred.
The High Court dismissed the application but gave permission to appeal on the breach of duty point, and the Court of Appeal gave permission to appeal on the limitation issue.
The Court of Appeal
Breach of duty: Coulson LJ said the action could proceed to a full hearing as there was an arguable, and not fanciful, case that “the appellant could, and should, have insisted on the sale to a so called “green yard” where proper working practices were in place”. He further said that “the appellant arguably played an active role by sending the vessel to Bangladesh knowingly exposing workers (such as the claimant) to the significant dangers which working on this large vessel in Chittagong entailed”. However, the court recognised that the claim as pleaded was “an unusual extension” to the law of negligence stating that the claim was at the “forefront of the development of the law of negligence”.
Limitation: The court said that the one year Bangladeshi limitation period should apply dismissing the argument that under Rome II Article 7 the three year English limitation period should apply. However, it was arguable that the Bangladeshi law caused “undue hardship” under Rome II Article 26 and so was incompatible with public policy.
The case was remitted back to the High Court for determination of the issues, with limitation to be tried as a preliminary issue.
Comment
The case is another example of the English appellate courts being willing to consider extensions to the law of negligence in novel areas of law. With developments in the law of modern slavery and human rights and increasing international environmental standards (see for example the impending Hong Kong Convention on ship recycling) the bounds of the law of negligence look likely to be tested further. It will be interesting to see how this case is resolved. However, it might founder on the limitation issue. The claimant was well aware of her ability to sue within the one year limitation period and failed to do so and one year limitation periods are not out of the ordinary.
Further reading:
Begum v Maran (UK) Ltd [2021] EWCA Civ 326.
Law-Now: Contractual protections in scrapping decommissioned assets.
