Ziemniak v ETPM Deep Sea Limited

The appellant, a seaman injured when a lifeboat suspension chain failed, alleged negligence and a breach of Regulation 43(10) and Schedule 16 Part II(c) of the Merchant Shipping (Life Saving Appliances) Regulations 1980. The defendant conceded breach of the regulation but the county court held that breach of that regulation did not give rise to a private cause of action. The Court of Appeal allowed the appeal.

Legal principles and grounds:

• The court applied established principles on when a statutory breach gives rise to a private right of action: look to the statute as a whole, the class protected and the available enforcement mechanisms.
• The Regulations imposed an absolute duty for the protection of a definable class (seamen) and breach was conceded.
• The Court considered but distinguished the decision in Todd & Others v Adams & Another, concluding that the certification and enforcement regime relied on in Todd (relating to fishing vessels) did not apply to the Life Saving Regulations.
• Taking account of the legislative history (1970s reforms and consolidation into the Merchant Shipping Acts) and analogy with land-based safety legislation, the court concluded Parliament must have intended a civil remedy for breach of the Life Saving Regulations.

Background and facts: The appellant, a marine engineer, sustained serious injuries in November 1997 when a lifeboat chain failed while the vessel was moored. The respondent owned the vessel. The probable cause was stress corrosion cracking of a link. The county court accepted the judge's factual finding that the chain was not visibly corroded so as to render it unsafe to use and dismissed the negligence claim; the appellant appealed the county court's conclusion that breach of the Life Saving Regulations did not give rise to a civil remedy.

Nature of the claim / Relief sought: The appellant sought damages for personal injuries relying on negligence and, separately, on breach of Regulation 43(10) and Schedule 16 Part II(c) of the Merchant Shipping (Life Saving Appliances) Regulations 1980.

Issues framed:

• Whether breach of Regulation 43(10) and Schedule 16 Part II(c) (an absolute duty for the safety of lifeboat launching gear) gives rise to a private civil cause of action.
• Whether the existence of criminal sanctions, inspection, exemption and certification schemes in the maritime statutory framework precludes a private right of action.

Court’s reasoning and disposition: The Court of Appeal accepted that the statutory duty was absolute and that breach was admitted. The respondent relied on Todd & Others v Adams & Another, where rules made under section 121 of the Merchant Shipping Act 1995 were held not to give rise to civil liability because of certification and enforcement mechanisms. The court examined the legislative history (Board of Trade powers under the 1970 Act, Section 21 of the 1979 Act and consolidation in the 1995 Act), analogies with the Factories and Health & Safety legislation, and the absence of an applicable criminal penalty for an incident in port. The court concluded that Todd was distinguishable (the certification regime for fishing vessels was materially different) and that Parliament must have intended the Life Saving Regulations to confer, by implication, a private right of action for the protected class. The appeal was allowed and judgment entered for the appellant for damages to be assessed.

Procedural posture: Appeal from Manchester County Court (His Honour Judge Lyon) where the claim had been dismissed on 29 May 2002; Court of Appeal allowed the appeal on 7 May 2003.

Appeal allowed. The Court of Appeal held that breach of Regulation 43(10) and Schedule 16 Part II(c) of the Life Saving Regulations gives rise to a civil right of action in favour of the protected class. The court distinguished Todd & Others v Adams & Another on the basis that the certification and enforcement regime considered in that case (fishing vessels) was materially different, and relied on legislative history and analogy to other workplace safety legislation to infer Parliament's intention to permit a private remedy. Judgment in the county court was set aside and judgment for the appellant for damages to be assessed was substituted.

Appeal from Manchester County Court (His Honour Judge Lyon) where, on 29 May 2002, the claimant's action in negligence and for breach of the Life Saving Regulations had been dismissed. The appeal to the Court of Appeal ([2003] EWCA Civ 636) was allowed on 7 May 2003.