George v Coastal Marine 2004 Ltd (t/a Mashfords)

A berth operator does not ordinarily give an absolute warranty that a tidal berth is safe or fit for use. The implied contractual obligation is to take reasonable care to ascertain whether the berth is reasonably safe and, where it is not, to give an adequate warning. The same limited standard applies to the common-law duty and to the duty under the Occupier’s Liability Act 1957. A warning is effective only if, in all the circumstances, it enables the visitor to be reasonably safe. Where an adequate warning identifies a safe alternative berthing position, the operator is not liable for damage caused by the visitor’s refusal to follow it.

The claimant’s wooden vessel was damaged after grounding hollow in a tidal berth operated by the defendant shipyard. He alleged breach of contract, common-law negligence and breach of duties under the Occupier’s Liability Act 1957, contending that the berth was unsafe and that the defendant should have provided a safe berth or warned him of its condition.

The defendant maintained that the berth was reasonably safe if the vessel was moved astern to avoid a change in seabed gradient, and that its employees had given that warning. The central issues were whether the warning was given and adequate, and whether the vessel would have lain safely had it been followed.

1. Duty. The bed of the berth was tidal foreshore and seabed, and the defendant did not exercise sufficient control over it to owe an absolute obligation to repair or make it fit for berthing. The arrangement was a classic The Moorcock situation: the implied contractual duty was to take reasonable care to see that the berth was safe and, if it was not, to warn customers. The defendant gave no absolute contractual warranty of safety ([18]–[20]).
2. The defendant was an occupier of the quay or sea wall. Its duty under section 2(2) of the Occupier’s Liability Act 1957 was a duty to take reasonable care to see that the claimant was reasonably safe, not an absolute liability for defects in the berth ([20]).
3. Under section 2(4), a warning does not automatically absolve an occupier. It must be sufficient, in all the circumstances, to enable the visitor to be reasonably safe. Section 2(5) preserved the defence that the claimant willingly accepted the risk ([21]).
4. The evidence established that moving the vessel 12 feet astern would have placed it seaward of the change in gradient and would have allowed it to lie reasonably safely aground. The berth remained less suitable than another berth, but it was not so unsafe that the defendant should have prohibited its use ([23]–[35]).
5. The defendant’s employees had warned the claimant to move the vessel 12 feet astern because the beach sloped up and the vessel would otherwise ground hollow. The claimant refused and instead left the vessel in the unsafe position. The warning was therefore adequate, and there was no liability in contract, tort or under the 1957 Act ([48]–[54]).
6. The claim failed. The judge gave provisional views on quantum in case the liability conclusion was wrong, including limited recovery for necessary outstanding repairs, slippage, lay-up costs and fuel, and loss of use calculated by reference to the vessel’s capital value for two years only ([55]–[63]).

First-instance decision. No prior or appellate decision is stated in the judgment.