HL Deb 09 February 1971 vol 315 cc19-27

3.20 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Drumalbyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair]

Clause 1 [Liability for oil pollution]:

On Question, Whether Clause 1 shall stand part of the Bill?


I should like to take this opportunity of asking the Government a question which arises both on this Bill and on the Bill which we are to discuss immediately afterwards. I think it can as conveniently be taken under Clause 1 stand part as anywhere. The question is about the powers of the Governments of this country to seize ships. This clause of this Bill lays liability on shipowners in respect of sea pollution. Cases may be brought under that clause in the courts to which the Government may be party. The courts may award damages against the shipowner to the Government, or to the Government acting on behalf of local authorities or other parties, and the liable party may then fail to pay. In that case, have the Government sufficient powers to detain either the ship itself which was responsible for the original damage, if it is a British-registered ship or a ship which happens to be in this country; or, even more important, to detain another ship belonging to the same owner as that against which liability has been awarded, or, indeed, to distrain on other property of that owner?

I lay special emphasis on the latter point because I have seen a report of a court case, the precise circumstances of which are not familiar to me though they will be to the Government, in which the judgment appeared to cast doubt on the right of the British Government to seize a second ship belonging to the owner of a first ship which had incurred liability—or criminal liability, I forget which— for pollution or for accident (again I forget which, but it does not affect the issue in this case). The question arises as much in the case of the next Bill which will come before the Committee of your Lordships' House and which concerns criminal liability as it does under the present Bill, which concerns civil liability. It may be that one of the Ministers concerned will find it convenient to give an explanation of the present situation to-day at either of the Committee stages. If they do not, so far as noble Lords on this side of the Committee are concerned, it will be quite all right if, at a convenient point in the Report debates on either of these Bills we can have the answer then. But I feel that the Committee would find it an advantage to know what is the actual sanction of power which backs up the liabilities and powers which are being introduced by these two Bills.


The noble Lord has asked about the power of the Government to detain ships. That is, in one case, the ship from which oil has actually escaped, or has been discharged, and which causes pollution damage. This is a question rather more for the next Bill than for this, because here, as he rightly said, we are dealing with civil liability, and it is those who have a claim arising out of Clause 1 of the Bill who would go to the court and ask for an order to detain the ship. One effect of Clause 13(1), which makes it clear that claims under Clause 1 come within the Admiralty jurisdiction of the High Court, is that by virtue of Section 3(2) of the Administration of Justice Act claims arising under this Bill will be included among those for which proceedings in rem can be taken. In such proceedings the ship which is the subject of the action, or a ship under the same ownership, may be arrested and may be security for any judgment.

The noble Lord is well aware that in the case of the "Torrey Canyon" it was possible to arrest in Singapore a ship under the same ownership. If proceeding are brought in personam a judgment can be enforced against a ship within our jurisdiction in the same way as against any other chattel. If the Government were the claimant, then no doubt the court would allow the Government to detain the ship. Further points which assist in the enforcement of judgments are that if an owner wishes to limit his liability he has to pay the amount of the limitation fund into court. This will be available to claimants. In addition, the provisions for compulsory insurance, mutual enforcement of judgments and direct action against insurers are designed to strengthen further the position of the claimant. The noble Lord will also be aware, from reading the Bill, that on payment into court of the sum specified in the Bill (which is related to the tonnage of the ship), to cover the liability, the ship would be released. I hope this covers what the noble Lord wanted to know, but if there is anything further I shall be glad to deal with it at the next stage of the Bill.


I am most grateful to the noble Lord for that explanation. On hearing it like that, I think it does cover everything that was worrying me, but perhaps I can read it to-morrow in Hansard. I am glad to know that the noble Lord will not be averse to corning back to it if need be.


Suppose the ship is a one-vessel fleet and is a total loss: how do the Government proceed against the insurance company if it is a foreign company? Have they any power to distrain on some other ship which it happens to be insuring in our ports?


One of the problems in legislation of this sort is bringing to book certain kinds of offender where they have no property in this country and where it is not possible to lay hands on any. This is a real difficulty. If this was the one ship in the ownership of one person, and that ship sank, then it would be very hard to meet that situation within any kind of Bill. The question would be whether the owner had any assets, and whether it was possible to get at those assets from this country.

Clause 1 agreed to.

Clause 2 [Exceptions from liability under section 1]:

3.30 p.m.

LORD KENNET moved Amendment No. 1: Page 2, line 26, after ("hostilities") insert ("or").

The noble Lord said: Clause 2 states that a shipowner does not incur any liability if pollution occurs from—and I quote from paragraph (a): an act of war, hostilities, civil war, insurrection "— and so far I think all is plain sailing— or an exceptional, inevitable and irresistible natural phenomenon". It seems to me, as it will seem to all of your Lordships—and, indeed, to all persons who have ever sailed the seas—that one keeps on meeting exceptional, inevitable and irresistible natural phenomena. They are called storms. A storm is exceptional in that most days there are not storms; but one day there is a storm and it is exceptional. It is certainly natural and, according to the size of your ship, it may or may not be irresistible; this is simply a matter of scale. In moving to delete those words, to get rid of the concept of the exceptional storm which lets the tanker owner off his liability, it seems to me that I am really suggesting that the Committee should close a very large loophole in this Bill. Because, of course, it would not be good enough if a chap could come to court and be able to prove that as there was a Force 9 wind blowing it was not his fault. I beg to move.


I should like to support my noble friend in this Amendment, because the interpretation of this subsection could be so broad that the sea lawyers, qualified lawyers and even Lord Chancellors could have a whale of a time interpreting it. The semantics may look all right, but the logic and the law would certainly give a judge, let alone a Welsh layman, a headache in trying to interpret them. Paragraph (a) states: resulted from an act of war, hostilities "— that is clear— civil war, insurrection or an exceptional, inevitable and irresistible natural phenomenon But if I were a little fellow running a tanker up the River Severn, I could make a good case for saying that on that special day the tidal bore upset my ship and spilled the oil on the waters, and that would exempt me from paying compensation because the tidal bore is an inevitable and irresistible natural phenomenon". Once in my life I was in a typhoon in the China Seas and I never want to be in one again. But I believe that I could interpret that as exceptional, and could even say the same about the North Sea when some of us have had rough passages.

Without asking now for skilled legal interpretation, I really believe that this phrase should be narrowed, if possible; otherwise, most people could find an exemption at any time they were sailing on one of the Seven Seas. Although I may have appeared a little jocular about the interpretation, it is clear that there is a need for a more precise and concise interpretation of these words. Therefore, I support my noble friend and I thank the Committee for its attention.


Surely the paragraph cannot mean a storm or a hurricane or a typhoon, because they are not "exceptional". It surely means a tidal wave or an earthquake. I do not see how the noble Lord can use the argument of a typhoon or a hurricane. I should not call them at all exceptional.


The noble Viscount should be aware, if he has read his Henry IV, that when Owen Glendower was born there was a storm, but it was an exceptional storm. He will also know that Hotspur said that he, too, could call spirits from the deep; and in any storm a captain on the seas can occasionally call spirits from the deep. The point is that nobody, except the crew of the ship, is on the spot when the storm takes place. If it is a storm with cyclonic conditions it may have a radius of only five or ten miles. Not even the coastguard or the lighthouse keeper will be aware of its being in a certain spot, and who can deny my interpretation as captain of the ship? I believe that these words need looking at again.


I think the fact that the noble Lord is standing opposite us at the moment is proof that typhoons are not necessarily irresistible. The word "irresistible" really governs this paragraph because the master mariner is expected, and expects, to weather typhoons, storms and so on, but is not prepared to cope with earthquakes and tidal waves. I am sure that "irresistible" is the key word in this phrase.


In dealing with this Bill, I think we have to bear in mind—it is perhaps as well that I say this now, because the noble Lord, Lord Kennet, is very well aware of it—that its main purpose is to enable the Government to give effect to the International Convention on Civil Liability for Oil Pollution Damage. This clause reflects the Convention, and the Convention states in almost identical words: No liability for pollution damage shall attach to the owner if he proves that the damage resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character and so on. I recognise that your Lordships will want some reason for this being contained in the Convention, and will want to know why it was that those who attended the Convention reached that conclusion. The effect of the noble Lord's Amendment is also to leave out the word "insurrection". He did not mention that, and I am not quite sure whether he meant it. But there is a slightly declining order of intensity from "war, hostilities, civil war" to "insurrection" which is, as it were, midway between riot and civil war.

The Convention then goes on, … or a natural phenomenon of an exceptional, inevitable and irresistible character. This exception is rather similar to the defence known as Act of God in English law. But the meaning of Act of God has never been clearly established and is difficult to translate into other languages and systems of law, especially in those countries which do not recognise God anyway. This exception was therefore intended to be both clear and more limited. If I were asked to give an example of what was at one and the same time exceptional, inevitable and irresistible, I should be very hard put to it to do so, and it is necessary to cover the cases which one cannot think of. I am not quite certain whether the noble Lord moved the next Amendment at the same time.


I moved Amendment No. 1 only, but I should have explained that I was speaking to Nos. 1 and 2 together. I should like to speak to Amendment No. 3 separately.


I hope that I have said enough to make it clear that we are merely following up the Convention here. It may be that I shall have to say that more than once in the course of our consideration of this Bill.


First of all, let me disclaim any intention of haggling about the details of where one might propose to cut this clause. If "insurrection" is particularly important and should be left in, then let us leave it in and I shall confine the rest of my remarks to the desirability of deleting the words thereafter. The noble Lord has said that this is the form of words in the Convention, and that in this Bill we are following the Convention. I quite take the point. It is a strong point, but I should like to put the opposite point to the Committee.

If the noble Lord were to come to this House and say, "There is something in the Convention which we are not reproducing in our Bill because we think it goes too far", then that would be a difficult ground to defend and this House, and indeed any national Parliament, would probably be right to chastise this Government for excessive nationalism in lagging behind the other Governments of the world. If, on the other hand., a national Parliament to whom was submitted an international Instrument for ratification (which is what is being done now) were to find out that it did not go quite far enough, and was faced by the argument—as I submit this Committee is now faced by the argument—from the Government that, because, the international community had been prepared to go only one mile forward, therefore we in this country must not go two miles forward, then I believe that that national Parliament would be justified in rejecting the argument and saying, "Maybe they have only gone so far, but we ought to go farther. We shall have a better national law if we go farther than the international Convention suggests we should go." That is really the gist of my argument in moving this deletion.

Lastly, I think the noble Lord said that it was his purpose to cover something which he could not think of. It would be our purpose, the purpose of those on this side, to leave uncovered anything which we cannot think of, so that if something happens which never occurred to anybody the man will be liable for the damages he causes rather than he should be let off simply because of the mere unthinkability in advance of what has happened. I should like this Bill to cover contingencies, not to leave them deliberately uncovered. It is not my intention to press this Amendment at this stage. I do not believe that the argument, "It is in the Convention, therefore that is all we should do", is a good one. I am glad that the Government are going as far as the Convention. I would urge them to go further in this respect, and I would urge the noble Lord to consider this wording again between now and the next stage to see whether he cannot meet the points we have made by agreeing to the deletion of these words and allowing this country to get a little bit ahead of the international community, though not so far ahead as other countries (and I instance in particular Canada), before we reach the next stage of the Bill.


I would ask the noble Lord to bear in mind that a Convention of this kind represents a coming together of interests of various kinds. What this Bill does is to impose a liability of a strict character on the owner of the vessel. Now there are exceptions to that strictness. What the noble Lord is asking us to do is to make it a little more strict. The difficulty here is that in the course of the Convention there has inevitably been a lot of argument as to what the insurable limit is, and in arriving at the figures in the Bill, for example, which we shall come to, this has been taken into account. It would be difficult to alter the limits of coverage without at the same time altering the financial limits. They are all worked in together, and they are all part of the Convention. This is the problem here. I am not saying that at no part of the Bill have we not gone a little further than the Convention, but not in matters which affect all members of the Convention. Where we have gone a little further, it is entirely within our own jurisdiction.


I take that argument, and I think it is a strong one, but I wonder whether at the next stage, when we come back to this, as I think we should, the noble Lord will be able to tell us about present and intended legislation in the United States and in Canada, and whether all that is entirely free of anything which might possibly be held to affect the liability levels later on.

Amendment, by leave, withdrawn.

House resumed.