What is a “ship”: R v Goodwin in the Court of Appeal.

Bruce Grant

Newcastle Law School

[email protected]

The author is Chairman of the Legal and Government Affairs Committee of the Royal Yachting Association, but the views expressed do not necessarily represent those of the Association.

Summary

This casenote considers the judgment of the Court of Appeal (Criminal Division) in R v Goodwin [2005] EWCA Crim 3184; [2006] 1 WLR 546, where the court had to consider if a personal watercraft used for purposes of recreation was a ship for the purposes of the Merchant Shipping Act 1995.  It points out some of the difficulties which flow from the court’s reasoning and questions whether the court would have reached the same conclusion had it been better informed of the factual background.  The conclusion is reached that reform is necessary, and can be achieved through the exercise of powers in the Railways and Transport Safety Act 2003.

Contents

Introduction
R v Goodwin – trial and appeal
Was the Waverunner a “ship”?

“…every description of vessel…”
“… used in navigation”
“Sea-going ships”
“Master employed”

The ratio of Goodwin.
The implications of Goodwin.

Legislation which applies to “ships” and “sea-going ships”.
Legislation which applies to “vessels”.
The public right of navigation

Reform?
Conclusion

____________________________________________________________________

Introduction

R v Goodwin [2005] EWCA Crim 3184; [2006] 1 WLR 546⁽¹⁾ is something of a rarity.  The Court of Appeal (Criminal Division) had to rule on the application of the Merchant Shipping Act 1995 to a personal watercraft⁽²⁾ in use for recreational purposes.  Giving the judgment of the Court, Lord Phillips CJ held (at para 46) that the prosecution under the Merchant Shipping Act was “misconceived”, but in so doing adopted reasoning which may have wider unintended consequences.

R v Goodwin – trial and appeal

In May 2004 Mark Goodwin was on the sea in Weymouth Bay within the Port of Weymouth riding his Yamaha Waverunner, a type of PWC. He was involved in a collision with another stationary PWC causing serious injury to its rider.  In July 2005 he was indicted before Salisbury Crown Court on a single count of doing an act which caused or was likely to cause serious injury, contrary to section 58(2)(a) of the Merchant Shipping Act 1995.

The s.58 offence applies to the master of, or any seaman employed in, a United Kingdom ship, and is committed if such a person while on board his ship or in its immediate vicinity—

(a) does any act which causes or is likely to cause--
….

(iii) the death of or serious injury to any person,

The only defence offered at the trial was that the Waverunner PWC was not a “ship” for the purposes of s.58.  Mr Recorder A Davies QC, sitting in the Crown Court at Salisbury ruled the Waverunner was within the statutory definition of “ship” in the Merchant Shipping Act 1995.  The defendant changed his plea to guilty, and was later sentenced to six months imprisonment, but released on bail pending appeal against conviction and sentence.

In December 2005 his appeal was allowed.  The Court of Appeal refused leave to appeal to the House of Lords but certified the following questions of law of general public importance were involved in its decision: (i) whether the Waverunner was a 'ship' within the meaning of s 58 of the Merchant Shipping Act 1995; (ii) whether the Waverunner craft was a 'seagoing ship' within the meaning of reg 4 of the Merchant Shipping Act 1970 (Unregistered Ships) Regulations 1991 (SI 1991/1366); and (iii) whether reg 4 applies only to masters employed in a seagoing ship. In March 2006 the prosecution’s petition for leave to appeal to the House of Lords was refused.

Was the Waverunner a “ship”?

The statutory definition of a “ship” for the purposes of the Merchant Shipping Act 1995 is provided in s.313(1):- “ship includes every description of vessel used in navigation”.  In Goodwin the court treated this as a two-part test. For these purposes a “ship” has to be (i) a vessel, and (ii) used in navigation.

“…every description of vessel…”

On the question of what constitutes a vessel, the Court considered Steadman v Scofield [1992] 2 Lloyds Rep 163, a decision of Sheen J. in the Queen’s Bench Division Admiralty Court. The facts were that the defendants were engaged in waterskiing with a speedboat off Brighton Pier when they were in collision with the plaintiff, riding a Kawaski Jet Ski.⁽³⁾ The plaintiff claimed in negligence within three years.  The defendants argued that the claim became statute barred at the expiry of two years from the date of the injury by reason of the Maritime Conventions Act, 1911, s.8 which provides:-

No action shall be maintainable to enforce any claim . . . against a vessel or her owners in respect of any damage or loss to another vessel . . . or damages for . . . personal injuries suffered by any person on board her caused by the fault of the former vessel . . . unless proceedings therein are commenced within two years from the date when the . . . injury was caused . . .

The relevant definitions were in the Merchant Shipping Act, 1894, s.742 of which defined a "vessel" as including any ship or boat or any other description of vessel used in navigation; and further defined a "ship" as “including every description of vessel used in navigation not propelled by oars”.  If the plaintiff’s Jet Ski was a “vessel used in navigation”, then since it was not propelled by oars, it followed it was a “ship”.

Sheen J held the Jet Ski was not within the relevant definition. He held at p.166

“A vessel is usually a hollow receptacle for carrying goods or people. In common parlance 'vessel' is a word used to refer to craft larger than rowing boats and it includes every description of watercraft used or capable of being used as a means of transportation on water.”

In Goodwin Lord Phillips CJ accepted that “every description of vessel” was sufficiently wide to cover a craft like the Appellant’s Yamaha Waverunner, and so was able to distinguish Steedman v Scofield [1992] 2 Lloyds Rep 163.  Referring to Sheen J.’s contrast between a jetski and a boat, “which conveyed the concept of a structure with a concave shape providing buoyancy for the carriage of persons or goods”, Lord Phillips CJ, held at para. 17,

“The [Waverunner] has a concave hull that gives the craft sufficient buoyancy to enable three riders to sit astride the saddle. The craft bears a much closer resemblance to a boat than that which Sheen J. had to consider.”

It appears the Court of Appeal has accepted that to fall within the statutory definition, the “thing” in question must be a “hollow receptacle”. A bathtub, (with the plug in) would qualify, but a surfboard whether sail powered, kite powered, motorised, or un-powered would not.  Rafts of wood might not be classed as hollow receptacles but have been held to be ships for certain purposes.⁽⁴⁾  In Wells v Owners of Gas Float Whitton (No 2) [1897] AC 337, 345 Lord Herschell accepted a raft might be a “ship” for the purposes of the Admiralty salvage jurisdiction.

“… it must be remembered that rafts are frequently so constructed as to be in a sense navigated: they are capable of being and are steered.  They often have crews resident on board; they are used for the transport, from place to place, by water, of the timber of which they consist, and sometimes of timber placed upon them.” ⁽⁵⁾

The “hollow receptacle” test has unfortunate consequences if its effect is to exclude such craft from being “vessels”.  In Steedman v Scofield [1992] 2 Lloyds Rep 163, Sheen J did not suggest this was the only test merely that, “A vessel is usually a hollow receptacle for carrying goods or people” (my emphasis).  He went on to propose a broader test, namely that vessel “includes every description of watercraft used or capable of being used as a means of transportation on water”.  It is submitted that is more satisfactory than the “hollow receptacle” test, even if, as Lord Phillips CJ apparently accepted at para 27 in Goodwin, the transportation of goods or persons is not a necessary requirement of the act of navigation.

Sheen J. qualified his test by saying that vessels are “larger than rowing boats”.  In the context that was understandable, because the statutory definition with which he was concerned extended only to vessels “not propelled by oars”.  The exclusion of vessels propelled by oars no longer applies, and there is no reason why a Viking longship propelled by sweeps or a Greek trireme should not be classed as “vessels” merely by reason of their form of propulsion.

“… used in navigation”

The main part of the Court of Appeal’s reasoning in Goodwin rests on the meaning to be given to the second part of the definition of “ship”, namely a vessel “used in navigation”.  After an examination of the authorities, the Court of Appeal held it was not satisfied the defendant's PWC was “used in navigation”.  As Lord Phillips CJ put it:

The Court of Appeal reached this conclusion partly by determining the intended purpose of the Merchant Shipping legislation and partly upon a number of persuasive authorities.

Lord Phillips CJ’s view at para 18 of the judgment in Goodwin was that  Part III of the Merchant Shipping Act 1995, which includes s.58, is primarily concerned with shipping “carried on as a business” not with pleasure boating.  On the authorities, the Court’s starting point was Steadman v Scofield where Sheen J described navigation in the following terms.

“Navigation is the nautical art or science of conducting a ship from one place to another. The navigator must be able (1) to determine the ship's position and (2) to determine the future course or course to be steered to reach the intended destination. The word 'navigation' is also used to describe the action of navigating or ordered movement of ships on water. Hence 'navigable waters' means waters on which ships can be navigated. To my mind the phrase 'used in navigation' conveys the concept of transporting persons or property by water to an intended destination. A fishing vessel may go to sea and return to the harbour from which she sailed, but that vessel will nevertheless be navigated to her fishing grounds and back again. 'Navigation' is not synonymous with movement on water. Navigation is planned or ordered movement from one place to another.”

Lord Phillips C.J. also considered The “Von Rocks” [1998] 2 Lloyd's Rep 198, a decision of the Irish Supreme Court. The Von Rocks was a backhoe dredger, described in the headnote as having

“no bow, no stern, no anchors, no rudder or any means of steering and no keel or skeg. It had no means of self-propulsion mechanical or otherwise and it had no wheelhouse”.

The question for the Irish Supreme Court was whether it was a “ship” for the purposes of the Irish Jurisdiction of Courts (Maritime Convention) Act 1989. That Act provided that “ship” included “every description of vessel” and that “vessel” included “any ship or boat or any other description of vessel used in navigation”.

Keane J, giving the judgment of the Supreme Court considered Steedman v Schofield and questioned “whether, to come within the category of a “ship” the purpose of a craft must be “to go from one place to another”. He went on:-

“In the case of non-commercial craft, it seems somewhat unreal to regard their purpose as being a journey from one point to a specific destination. Yachts which take part in the America's Cup are designed and constructed with a view to testing the excellence of their technology and the seamanship of their crews rather than transporting people from one place to another. On a less exalted level, people will for long continue to derive enjoyment from being on the sea, not because they are accomplishing a journey to an intended destination but simply for the pleasure of – in the well worn phrase from The Wind in the Willows – ‘messing about in boats’.”

As was pointed out in Goodwin, this reasoning was obiter. The Irish Supreme Court held the Von Rocks was a ship because although it was not adapted for the carriage of goods or persons, it was “a structure designed and constructed for the purpose of carrying out specific activities on the water, is capable of movement across the water”.

On the basis of The Von Rocks and Perks v Clark [2001] 2 Lloyd’s Rep 431 (where the Court of Appeal held a jack-up drilling rig was a “ship” for tax purposes) Lord Phillips CJ in Goodwin accepted that “that for a vessel to be "used in navigation" under the Merchant Shipping Acts it is not a necessary requirement that it should be used in transporting persons or property by water to an intended destination” (para 27).

The Court of Appeal’s sole reason for holding that a PWC is not used in navigation was the notion that navigation consists of ordered movement from A to B. Lord Phillips CJ also relied on Curtis v Wild [1991] 4 All ER 172, where Henry J sitting in the High Court in Manchester held that sailing dinghies being used for pleasure purposes on a small inland reservoir described as “messing about in boats” - were not being “used in navigation”. The legal issue was the same as that which arose subsequently in Steedman v Scofield [1992] 2 Lloyds Rep 163, namely whether the two year limitation period provided by the Maritime Conventions Act 1911 s.8 applied.

“Sea-going ships”

The second question of law of general public importance certified by the Court of Appeal was whether the Waverunner was a sea-going ship. This arose because by the Merchant Shipping Act 1970 (Unregistered Ships) Regulations 1991 (SI 1991/1366) Reg 4, the Merchant Shipping Act 1995, s.58 applies to unregistered ships (this PCW was not registered) only if they are “sea-going”. The court made short shrift of the Crown’s argument that “sea-going” meant something that was used on the sea as opposed to inland waters. As Lord Phillips CJ explained at para 39,

“The suggestion that the Waverunner was a sea-going ship is worthy of A.P.Herbert. By no stretch of the imagination could that craft be so described. While jet-skis are used on the sea in proximity to land, they do not go to sea on voyages nor, we suspect would they be seaworthy in heavy weather.”

“Master employed”

The third certified question was whether the Merchant Shipping Act 1970 (Unregistered Ships) Regulations 1991 (SI 1991/1366) Reg 4 applies only to masters employed in a seagoing ship. “Not without hesitation …” Lord Phillips CJ concluded s.58 applies “only to a master employed as such” (para 40).  The reasoning was that if that were not so, the owner of a yacht registered in the United Kingdom who damaged it would be guilty of a criminal offence with a maximum punishment of two years imprisonment.

The ratio of Goodwin.

It may be noted that the Court of Appeal did not have before it evidence of the passage-making capability of PWCs.  Crossing the English Channel in PWCs is commonplace; and a PWC has crossed the Atlantic, although not by continuous passage-making.⁽⁶⁾  Had the Court of Appeal been aware of this, it is doubtful whether it would have held PWCs to fall quite so clearly outside the definition of a ship.  If a PWC is engaged in “ordered progression … from one place to another” it is “used in navigation” and the possibility the driver is “having fun”, when crossing shipping lanes at more than 30 knots should not preclude such a finding.

The view that “messing about in boats” precludes being “used in navigation” appears to have originated with the judgment of Henry J in Curtis v Wild [1991] 4 All ER 172, 174 where he held that a sailing dinghy on an inland reservoir was not a “ship” in the statutory sense because it was not used for “going from point A to point B”, but rather by “people simply messing about in boats”. He based himself on the judgment of Lord Coleridge CJ in Southport Corporation v Morriss [1893] 1 QB 359, 361 where the court concluded that “navigation” in the statutory sense was not possible where a launch took passengers for pleasure trips on an artificial lake no more than half a mile long.⁽⁷⁾  Lord Coleridge CJ’s reasoning was directed at the size of the sheet of water on which the pleasure launch plied, rather than the nature of the trips (ie the pleasure of the passengers).  Henry J’s “messing about in boats” reasoning was then extended in Steedman v Scofield [1992] 2 Lloyds Rep 163 to craft in use on the open sea.

In other contexts, pleasure craft have been held to be vessels used in navigation. In The Goring [1988] AC 831 the House of Lords was concerned with a salvage claim in respect of a pleasure craft adrift on the non-tidal Thames.  In the Court of Appeal Bingham L.J. with whom Ralph Gibson L.J. agreed held that a pleasure craft could not be the subject of a salvage claim.  On appeal, counsel for the Respondent made a concession that, contrary to what had been held by the Court of Appeal, the pleasure craft was a “vessel used in navigation”. Lord Brandon said he thought counsel had been right to make that concession (p. 856).

In R v Carrick District Council ex p Prankerd [1999] QB 1119 the issue arose whether mooring charges were “ship dues” for the purposes of the Harbours Act 1964, s.26(3). The Applicant’s pleasure yacht had been stationary on its mooring in Truro Harbour for some time. Was it a “ship or vessel used in navigation”? Lightman J. giving the judgment of the Court said:-

“The relevant phrase is “used in navigation” as contrasted with the phrase “used for navigation.” The phrase "used for navigation" connotes that the actual current use of the ship is for navigation purposes; by way of contrast, the phrase "used in navigation” connotes that (irrespective of the actual current use) the ship is actually or potentially capable of being used for navigation. According to the ordinary use of the English language a ship remains “used in navigation” though rendered incapable of navigation, so long as there is a reasonable expectation that it will regain its capacity to navigate.” (p. 1126)

By this reasoning a vessel such as a PWC which has the capability of being used in navigation, would not cease to be a ship merely on the ground that it was currently being used for pleasure purposes not involving ordered progression from A to B. The same would apply to other small craft such as recreational fishing boats, speed boats, sea kayaks, canoes, and the like, which may be used either for messing about or for passage making.

The implications of Goodwin.

While the decision that Mark Goodwin had not committed the offence with which he was charged may be supported on the third point – he was not “a master employed”, the Court of Appeal’s reasoning on the “used in navigation” and “sea-going ship” may well have wider and possibly unintended consequences.

Legislation which applies to “ships” and “sea-going ships”.

Many provisions of the Merchant Shipping Act 1995 apply to “ships” or to “sea-going ships” within the statutory meaning with which the Court of Appeal was concerned in Goodwin.  The common formula is “all United Kingdom ships wherever they may be and all other ships while they are within United Kingdom waters”.⁽⁸⁾ If a vessel is not a ship, or sea-going ship as the case may be, these provisions will not apply.

(a) COLREGs

Perhaps most importantly, and despite Lord Phillips CJ’s obiter dictum to the contrary at para 45, the ratio of Goodwin confirms that in the UK, PWCs are not subject to the International Regulations for the Prevention of Collisions at Sea (COLREGs)⁽⁹⁾ The source of COLREGs is an International Maritime Organisation Convention (with amendments) adhered to by most of the world’s maritime countries including the UK.

COLREGs are implemented in the UK by Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 (SI 1996/75) made under the authority of the Merchant Shipping Act 1995, s.85 which empowers the making of regulations for “securing the safety of United Kingdom ships and persons on them”, and “other ships and persons on them whilst they are within United Kingdom national waters”.  Breach of COLREGs is a criminal offence in the UK.

Rule 3 of COLREGs provides a general definition of vessel which is wide enough to include PWCs. 

For the purpose of these Rules, except where the context otherwise requires:

(a) The word “vessel” includes every description of water craft, including non-displacement craft, WIG craft⁽¹⁰⁾ and seaplanes, used or capable of being used as a means of transportation on water.

By limiting the application of COLREGs to “ships”, the UK would appear to be in partial breach of its international obligations to “give effect to” COLREGs.

Even if COLREGs are not applied to PWCs by the 1996 Regulations it does not follow they are wholly irrelevant.  They could be relevant, for example, to defining the standard of care for purposes of establishing civil liability.

(b) Register of British Ships.

By the Merchant Shipping Act 1995 s.1, a ship is a British ship if it is registered in the United Kingdom or is a small ship (less than 24 metres in length) wholly owned by qualified owners as specified by the Secretary of State.  There was evidence in Goodwin (para 11) in the form of a witness statement from the operations manager of the Registrar of Shipping that 646 “wet-bikes” were on the register of British ships. If Goodwin is correct, they should not be registered, unless of course they were “used in navigation” at some time.  As Lord Phillips CJ noted (at para 12), one of the reasons for placing a vessel on the Part 1 Register is to use the ship as security to obtain a marine mortgage which in turn is registered.

(c) Miscellaneous cases

Other potentially inapplicable provisions are those in Part IV of the Act relating to safety including the duty to offer assistance at sea,⁽¹¹⁾ Part VI relating to pollution at sea, Part VIII relating to Lighthouse Authorities, including the power to levy light dues on ships.⁽¹²⁾  Ships of less than 20 tons are currently exempt from light dues⁽¹³⁾ but from time to time there are proposals to alter or remove this exemption.

Legislation which applies to “vessels”.

Where a legislative provision applies to a “vessel”, Goodwin creates a problem only if it is treated as authority for the “hollow receptacle” test to the exclusion of any wider test of what constitutes a vessel.  For an example of legislation of this type see the Harbours, Docks and Piers Clauses Act 1847, s.83 which gives harbour bye law making powers limited to making orders in respect of "vessels”.

The public right of navigation

There is at common law a public right of navigation in tidal waters.  Goodwin was concerned only with the meaning of “used in navigation” in the definition of “ship” for the purpose of the Merchant Shipping Act 1995. The public right of navigation is not necessarily affected by the decision, but if the same reasoning were to be applied, “messing about in boats” would not be in exercise of the public right of navigation. There is persuasive authority from Scotland against restricting the public right in this way. The House of Lords in Wills' Trustees v Cairngorm Canoeing and Sailing School Ltd 1976 SC (HL) 30 held that the public right of navigation on a river might be exercised by sailing dinghies and canoes in what may be described as “messing about in boats”.⁽¹⁴⁾

The public right of navigation also finds expression in what is usually referred to as the “open port duty” provided for by the Harbours Docks and Piers Clauses Act 1847 s. 33 -

Upon payment of the rates made payable by this and the special Act, and subject to the other provisions thereof, the harbour, dock, and pier shall be open to all persons for the shipping and unshipping of goods, and the embarking and landing of passengers.

Section 33 makes no mention of ships whether sea-going or otherwise. It is commonly understood as conferring a general right for all craft to use harbour waters on payment of any relevant harbour dues, and there is no reason to suppose that is affected by Goodwin.

Reform?

Does Goodwin leave the law in need of reform and if so, how?  Goodwin ensures that the distinction between “messing about in boats” and “ordered progression from A to B” will be applied to the definition of “ship” not only in the Merchant Shipping Act 1995 but in all other legislation dependent on that definition.

It appears Parliament has to some extent foreseen the reasoning which led to the decision in Goodwin. By the Railways and Transport Safety Act 2003, s.89,

(1) In this Part–

(a) “ship” includes every description of vessel used in navigation, and
(b) a reference to the navigation of a vessel includes a reference to the control or direction, or participation in the control or direction, of the course of a vessel.

The Part of the Act to which s.89 refers was intended to be applied to PWCs and this test of navigation appears to be intended to get round the reasoning in Steedman v Scofield [1992] 2 Lloyds Rep 163.  When the Bill was debated in Parliament, Viscount Astor proposed an amendment which would have inserted the words “a ship includes a vessel used in a private capacity for sport or leisure purposes”.⁽¹⁵⁾  Viscount Astor’s amendment was withdrawn following Government assurances that PWCs were caught by the wording of what is now s.89.

If s.89 were to be extended to the general definition of “ship” in the Merchant Shipping Act 1995, s. 313(1) it would undo one potential mischief of Goodwin by removing the distinction drawn there between “messing about in boats” and navigating them in ordered progression between A and B.  One consequence of this would be that small craft used in navigation on navigable waters would be subject to a two year limitation period for personal injury claims, rather then the conventional three year period.

The Railways and Transport Safety Act 2003 also contains powers which would enable the Secretary of Sate to take a more radical solution to the problems posed by Goodwin. Section 112(1) empowers the Secretary of State to:-

(a) provide for a shipping provision to apply (with or without modification) in relation to specified things which are used, navigated or situated wholly or partly in or on water;
(b) provide for a shipping provision not to apply in relation to specified things which are used, navigated or situated wholly or partly in or on water;
(c) modify a shipping provision in its application in relation to specified things which are used, navigated or situated wholly or partly in or on water.

By sub-section (2) a “shipping provision” means a provision which-

(a)    is made by or by virtue of an Act (including this Act), and
(b) is expressed to apply in relation to ships, vessels or boats (or a specified class or description of ship, vessel or boat).

By sub-section (4) an order under subsection (1) shall have effect despite (and may amend) any provision which-

(a) forms part of or relates to the shipping provision concerned, and
(b) defines "ship", "vessel" or "boat" or in any other way limits or determines the application of the shipping provision concerned.

These powers are wide enough to apply or disapply particular provisions of the Merchant Shipping Act and related legislation to particular classes of "ship", "vessel" or "boat".

Conclusion

The Secretary of State should exercise powers under the Railways and Transport Safety Act 2003 to bring a broader range of vessel types within the scope of the shipping provisions specified in the Act.  At the very least the powers should be exercised to permit the UK to comply with its international obligations under COLREGs and SOLAS.

It would be remiss if English law did not provide for any criminal offence if one party by reckless conduct causes injury to another in the circumstances alleged in Goodwin. The common law of Scotland provides an offence of reckless endangerment.⁽¹⁶⁾  In England and Wales in suitable circumstances it might be possible to charge the offences of assault and battery, or certain offences under the Offences against the Person Act 1861.  The defendant in Goodwin was originally charged with the offence of furious driving of a carriage contrary to the Offences against the Person Act 1861, s.35. This charge was withdrawn with leave, and the charge substituted under the Merchant Shipping Act 1995 s.58.  The law of England and Wales on non-fatal offences against the person has long been recognised as in need of reform, but that is a matter beyond the scope of this casenote.