Lloyd's Maritime and Commercial Law Quarterly
LIABILITY FOR DEFECTIVE SHIP
Coltman v. Bibby Tankers Ltd.
(The Derbyshire)
The Derbyshire was a vessel of some 90,000 tons which broke in two and sank off the coast of Japan in 1980 with the loss of all hands while on a voyage from Canada to Japan with a cargo of iron ore. An action was brought on behalf of the estate of the third engineer, Mr Leo Coltman, against his employers, who were the owners of the ship. The plaintiffs’ case was that Mr Coltman’s death was caused by a defect in the vessel and that the defect was attributable to the fault of the shipbuilders, Swan Hunter Shipbuilders Ltd. If that allegation could be proved, and if the ship was “equipment”, then the plaintiffs had a cause of action against the defendant employers, even if the defendants were not negligent. This strict liability is imposed by the Employers’ Liability (Defective Equipment) Act 1969, s. 1.
The defendants, however, denied that a ship could be “equipment” within the meaning of s. 1(1) of the 1969 Act. The only clue to the meaning of the word is given in s. 1(3), which states that “‘equipment’ includes any plant and machinery, vehicle, aircraft and clothing”, but makes no mention of a “ship”. When the matter came before Sheen, J., on a preliminary point of law in Coltman v. Bibby Tankers Ltd. (The Derbyshire)
1 he decided that the ship was “equipment” provided by the employers in the course of Mr Coltman’s employment. The Court of Appeal, by a majority (O’Connor and Glidewell, L.JJ., Lloyd, L.J., dissenting),2 allowed an appeal, declaring that the vessel was not “equipment”. The House of Lords3 unanimously restored Sheen, J.’s decision, so resolving one of the puzzles about this curiously drafted Act.4
The purpose of the Act was to overcome the effects of the decision in Davie v. New Merton Board Mills Ltd.,5 in which the House of Lords held that an employer who provides an employee with equipment supplied by a reputable manufacturer discharges his duty of care to the employee. The practical effect was to leave the employee without compensation where the negligent manufacturer could not be identified or was insolvent or had ceased to carry on business. Parliament met this by imposing on employers a vicarious liability and providing, in a case where injury was due to a defect caused by the fault of a third party, that the employer should, regardless of his own conduct, be liable to his employee, leaving it to the employer to pursue against the third party such remedies as he might have in contract or by
1. [1986] 1 W.L.R. 751.
2. [1987] I.C.R. 619; [1987] 2 W.L.R. 1098.
3. [1987] 3 W.L.R. 1181.
4. On which, see B. A. Hepple [1970] C.L.J. 25.
5. [1959] A.C. 604.
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