Natural Resources Conservation Authority and Another v Owners of M/v Neolla #7
| Jurisdiction | Jamaica |
| Judge | Campbell, J |
| Judgment Date | 17 May 2013 |
| Judgment citation (vLex) | [2013] 5 JJC 1701 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. A00003/2001 |
| Date | 17 May 2013 |
[2013] JMSC Civ. 62 (Admiralty)
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN ADMIRALTY
CLAIM NO. A00003/2001
and
Ms. Tova Hamilton and Mr. Harrington McDermott , instructed by Director of State Proceedings for the Claimants .
Mr. Christopher Kelman and Mr. Robert Collie , instructed by Myers , Fletcher & Gordon for the Defendant .
NEGLIGENCE — SHIP GROUNDED ON CORAL REEF — STATUTORY FRAMEWORK FOR OPERATIONS IN THE KINGSTON HARBOUR — REGULATIONS BREACHED — ORDER FOR METHODOLOGY OF COMPUTATION OF CORAL REEF DAMAGE — EXPERT TESTIMONY — NATURAL RESOURCE ECONOMIST — MARINE BIOLOGIST — FACTORS IN ASSESSING EXPERT TESTIMONY — COST OF REINSTATEMENT AS AGAINST THE DIMINUTION IN THE VALUE
The Kingston Harbour is the seventh largest natural harbour in the world. It is 16 kilometres long and 3.2 kilometres wide, it is virtually landlocked. It is ringed by the capital city of Kingston, Portmore, one of the largest growing communities in the Caribbean and the old buccaneer town of Port Royal, which was destroyed by an earthquake in 1695.
On the 28 th July 2001, the Cambodian fishing vessel, M/V Neolla #7, arrived in Jamaica to replenish supplies. It was the vessels fourth visit to the island. Whilst entering the Kingston Harbour, the vessel ran aground at Rackham's Cay, in the vicinity of Port Royal.
The 1 st Claimant, the Natural Resources Conservation Authority (NRCA), was established by legislation in 1991 to, among other things, take such steps as are necessary for the effective management of the physical environment of Jamaica so as to ensure the conservation, protection and proper use of its natural resources.
The 2 nd Claimant sues in a representational capacity on behalf of the Crown, pursuant to the Crown Proceedings Act.
On the 2 nd August 2001, the Claimants filed a Writ of Summons to recover damages for negligence, ‘that on or about the 28 th day of July 2001 the servant and/or agent of the Defendant so negligently managed, controlled or steered the M/V Neola # 7 causing same to collide into the Rackham's Cays, located in Jamaican territorial waters, thereby causing damage thereto and whereby the Plaintiffs suffered loss and incurred expenses.’
The Statement of Claim, which was filed on the 29 th January 2003, averred;
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(1) The Plaintiff is a statutory body and is established under the Natural Resources Conservation Authority Act and is among other things responsible for managing, protecting and conserving the natural resources which are found within the Island of Jamaica and within the territorial waters.
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(2) The 2 nd Plaintiff sues in a representational capacity on behalf of the Crown under and by virtue of the Crown Proceedings Act.
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(3) The Defendants are those who own or are interested in the Neolla # 7 (Fishing Vessel).
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(4) The coral reef which forms the subject matter of the claim is a natural resource which lies within the territorial waters of the Island of Jamaica and is vested in the Crown by virtue of section 11 of the Maritime Areas Act 1996 (5).
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(5) On or about the 28 th July 2001, the Noella # 7, a fishing vessel with gross tonnage of 930 tonnes and measuring 56 metres in length and 9.70 metres in breath, grounded on a reef on Rackham's Cay.
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(6) The said grounding was solely or contributorily caused by the negligent navigation of the Noella # 7 by the servants and agents of the Defendant.
Particulars of Negligence-
(a) Navigating the Neola #7 beyond the sea buoy marker without a pilot.
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(b) Navigating the Neola #7 into the Kingston Harbour without the aid of instruments and or nautical charts which indicated the position of coral reefs in circumstances in which it was dangerous and or careless to do so.
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(c) Failing to take all possible precautions to avoid colliding into and damaging the coral reef at Rackham's Cay.
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(d) Navigating the Neola # 7 into the Kingston Harbour without taking all due care.
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(e) Failing to stop, slow down or to navigate the Neola # 7 (Fishing vessel) in any other way so as to avoid a collision with the coral reef.
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(7) In the alternative, the Plaintiff relies on the doctrine of Res Ipsa Loquitor.
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(8) By reason of the negligence and or carelessness of the servants and or agents of the Defendant, the Neolla # 7 grounded on the reef thereby causing substantial damage to it.
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(a) Scaring to the coral reef measuring 26m in length.
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(b) All reef framework within area of scaring destroyed.
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(c) All living coral within area of scaring destroyed
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(d) Reef substrate destabilized.
On 21 st April 2006, the Defendants filed an Amended Defence, in which it was contended;
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1. Paragraphs 1 and 2 of the Statement of Claim are not admitted as the Defendant does not know whether the allegations contained thereon are true.
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2. Paragraph 3 of the Statement of Claim is admitted.
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3. Save and except that the Defendant does not know and accordingly, does not admit that the coral reef referred to is vested in the Crown as alleged at paragraph 4 of the Statement of Claim is admitted.
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4. Paragraph 5 of the Statement of Claim is admitted,
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5. In response to paragraph 6 of the Statement of Claim, the Defendant denies that the grounding was caused solely or partially by the negligent navigation of the vessel by servants and or agents of the Defendant.
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6. In response to the Particulars of Negligence set out in paragraph 6 of the Statement of Claim, the Defendant says as follows:
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a) The Defendant denies that the navigation referred to in paragraph (a) of the Particulars of Negligence in and of itself amounts to negligence.
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b) Paragraph (b) of the Particulars of Negligence is denied. The Defendant contends that a Pilot failed to board the vessel and manoeuvre the vessel through the channel despite the vessel's request. The Defendant further contends that the vessel was positioned in the shipping lane entering the Kingston Harbour, awaiting a Pilot and failing the attendance of the Pilot, the vessel was manoeuvred out of the shipping lane.
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c) Save that it is admitted that the Noella # 7 ran aground and save that the Defendant will say that the vessel was proceeding at a slow speed at the material time paragraphs (a), (d) and (e) of the Particulars of Negligence are denied.
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In response to paragraph 7 of the Statement of Claim, the Defendant will contend that the doctrine of res ipsa locquitor is inapplicable.
In response to Paragraph 8 of the Statement of Claim, the Defendant
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a) denies that its servants and/or agents were negligent and/or careless, and
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b) denies that the damage to the reef was substantial
In response to the Particulars of Damage set out in paragraph 8 of the Statement of Claim, the Defendant states as follows;
10. Further or in the alternative, the Defendant will contend that the reef which is the subject of this claim has, subsequent to July 28, 2001, been partially altered, re-shaped, obliterated or removed by the Port Authority of Jamaica, or its servants or agents, in order to widen the shipping lane. In the circumstances the Defendant will contend that any claim for general or special damages has been extinguished and/or significantly reduced and will request the Court to consider this if the Court intends to make an award in the Claimants favour.
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a) Paragraph (a) of the Particulars of Damage is denied. The Defendant contends that the scaring to the reef did not exceed a length of 24.4 metres.
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b) Paragraph (b) of the Particulars of Damage is denied. The Defendant contends that the vessel is curved in both the longitudinal and traverse aspects and that this is in addition to the sloping seafloor did not result in the destruction of all reef framework within the area of scaring.
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c) Paragraph (c) of the Particulars of Damage is not admitted and the Defendant will put the Claimants to strict proof regarding the condition of the coral reef prior to and subsequent to the Neolla # 7 running aground.
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d) Paragraph (d) of the Particulars of Damage is denied. The Defendant contends that the only area of contact that the vessel had with the reef is the centreline portions of the vessel. The Defendant further contends that numerous sessile organisms within the contact points survived the impact of the grounding.
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e) Paragraph (e) of the Particulars of Damage is not admitted as the Defendant does not know whether this allegation is true and the Defendant will put the Claimants to strict proof thereof.
On the 21 st January 2008, the Defendant filed a request for information seeking, among others, answers to the following questions;
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(i) Itemize the damage to the reef caused by the grounding of the Defendant's vessel.
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(ii) Advise the cost of the restoration of the material portion of the reef and how this cost is calculated.
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(iii) Has any modification to the reef area occurred subsequent to damage caused by the alleged collision in 2001?
The Claimants filed the following Answers dated 3 rd February 2010;
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1. The ‘scar’ caused by the grounding of the Defendant vessel was measured as having a width of approximately 7.4 metres and a length of approximately 26 metres.
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2. The rehabilitation cost of the material portion of the reef would be $346,320.00. This cost was calculated based on the review of literature, namely Economics of Coral Reef Restoration by James Spurgeon & Ulf Lindall. From the review an estimate of US18 Million per hectare was proposed. Based on the...
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