In March 2018 Storm Emma hit Holyhead from the North East. The marina in Holyhead harbour was damaged. Pontoons forming the marina broke up or became detached. Many craft moored in the marina were also damaged. It was said, based upon expert evidence, that the design, construction and maintenance of the marina were defective. In particular, there was no shelter from the North East. The claimant, Holyhead Marina Ltd, issued proceedings seeking limitation of liability pursuant to s 191 of the Merchant Shipping Act 1995 (UK) (the Act). The defendants to that limitation action are the owners of the damaged craft. The defendants resisted the claim to limit. This case concerns the question whether the claimant, a lessee of the marina in Holyhead harbour, is the owner of a 'dock' and so entitled to limit.

Section 191 of the Act provides as follows:

(1) This section applies in relation to the following authorities and persons, that is to say, a harbour authority, a conservancy authority and the owners of any dock or canal.
(2) The liability of any authority or person to which this section applies for any loss or damage caused to any ship, or to any goods, merchandise or other things whatsoever on board any ship shall be limited in accordance with subsection (5) below by reference to the tonnage of the largest United Kingdom ship which, at the time of the loss or damage is, or within the preceding five years has been, within the area over which the authority or person discharges any functions.
(3) The limitation of liability under this section relates to the whole of any losses and damages which may arise on any one distinct occasion, although such losses and damages may be sustained by more than one person, and shall apply whether the liability arises at common law or under any general or local or private Act, and notwithstanding anything contained in such an Act.
(4) This section does not exclude the liability of an authority or person to which it applies for any loss or damage resulting from any such personal act or omission of the authority or person as is mentioned in Article 4 of the Convention set out in Part 1 of Schedule 7.
(5) The limit of liability shall be ascertained by applying to the ship by reference to which the liability is to be determined the method of calculation specified in paragraph 1(b) of Article 6 of the Convention set out in Part I of Schedule 7 read with paragraph 5(1) and (2) of Part II of that Schedule.
(6) Articles 11 and 12 of that Convention and paragraphs 8 and 9 of Part II of that Schedule shall apply for the purposes of this section.
(7) For the purposes of subsection (2) above a ship shall not be treated as having been within the area over which a harbour authority or conservancy authority discharges any functions by reason only that it has been built or fitted out within the area, or that it has taken shelter within or passed through the area on a voyage between two places both situated outside that area, or that it has loaded or unloaded mails or passengers with the area.
(8) Nothing in this section imposes any liability for any loss or damage where no liability exists apart from this section.
(9) In this section - 'dock' includes wet docks and basins, tidal docks and basins, locks, cuts, entrances, dry docks, graving docks, gridirons, slips, quays, wharves, piers, stages, landing places and jetties; and 'owners of any dock or canal' includes any authority or person having the control or management of any dock or canal, as the case may be.

Held: The allegation that the claimant is not the owner of a dock within the meaning of s 191 of the Act, and the allegation that the limit of the claimants' liability should be assessed by reference to the tonnage of a passenger ferry, must be struck out because they have no real prospect of success. However, the allegation that the claimant has lost the right to limit cannot be struck out because it has, just, a real prospect of success. The claimant is therefore not entitled to summary judgment.

The Judge held that the pontoons that made up the marina at Holyhead were within the statutory definition of a 'dock', being landing places, jetties or stages. The claimants were accepted to be the owners of the marina, that is, of the pontoons which made up the marina, and so were, in principle, entitled to the right to limit conferred by s 191 of the Act.

The claimants also sought to strike out that part of the defence which alleged that 'in the premises the design construction and maintenance of the Marina constituted or comprised personal acts or omissions of the Claimant done recklessly and with knowledge that the damage suffered would probably result'. Section 191(4) of the Act incorporates art 4 of the LLMC 1996 which provides that: 'A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result'. There is no dispute that the burden lies upon the defendants to allege and prove conduct which bars the right to limit. There must also be alleged and proved actual knowledge that the loss which occurred would probably result. In contrast with the position with regard to carriage by air, conduct barring the right to limit must be the 'personal' act or omission of the shipowner or other person seeking to limit liability. It is not enough that a servant or agent of the shipowner or other person seeking to limit liability has been guilty of the requisite conduct. Thus what must be shown is that the alter ego or directing will and mind of the shipowner, or in this case the dock owner, has been guilty of conduct which bars the right to limit. In the present case the alter ego or directing will and mind of the claimant was not identified. Whether the defendants were relying upon the state of mind of the servants or agents of the claimant at the time of the design, construction and maintenance or the state of mind of the alter ego of the claimant was not stated. The former would not be a sufficient plea. The latter must be alleged. This was the principal difficulty with the defendants' original pleading. It did not identify the alter ego or directing will and mind of the claimant, that is, the natural person whose act or omission would amount to the personal act or omission of the claimant committed recklessly and with knowledge that the damage which occurred would probably result. An amended pleading was served on 10 June 2020. Mr Hughes and Mr Garrod, as directors of the claimant, were identified as 'the controlling minds' of the claimant. The Judge concluded that although it remained most improbable that the requisite actual knowledge would be established, the defence should not be struck out prior to trial.

The quantum of the limit is assessed 'by reference to the tonnage of the largest UK ship which, at the time of the loss or damage is, or within the preceding five years has been, within the area over which the authority or person discharges any functions' (see s 191(2) of the Act). The method of calculation is that provided by the LLMC 1996. There was a dispute as to 'the area over which the authority or person discharges any function'. The claimant said that the area was the area of the marina because that was the only area over which it had any control, by reason of its lease of the marina. The defendants said that it was the entire harbour. The Judge held that while it could fairly be said that the claimant discharged a function over the marina, it could not fairly be said that it discharged a function over the area of the harbour beyond the boundaries of the marina. Rather, it discharged a function over the craft which proceeded to and used the marina. While there was logic or reason in limiting the liability of the marina to the tonnage of the largest craft using the marina, there was no logic or reason in limiting the liability of the marina to a passenger ferry which used the harbour but over which the owners of the marina exercised no function and which did not (and almost certainly could not) use the marina. For these reasons the Judge concluded that the defendants had no real prospect of establishing that the limit of the claimant's liability exceeded the total sum claimed of some GBP 5 million. There was no suggestion that evidence would or might be available at trial which suggested that a craft of greater tonnage than 140 tons had visited the marina in the preceding five years.

[For the unsuccessful appeal to the England and Wales Court of Appeal, see Holyhead Marina Ltd v Farrer (Storm Emma) [2021] EWCA Civ 1585 (CMI1616).]