England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SALISBURY CROWN COURT
MR RECORDER DAVIES QC
T2005 7001

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 December 2005

Lord Phillips, CJ :

1. On 5 July 2005 in the Crown Court at Salisbury the Appellant pleaded guilty to a single count of doing an act which caused or was likely to cause serious injury, contrary to section 58(2)(a) of the Merchant Shipping Act 1995. On 5 August 2005, at the same court, he was sentenced to 6 months imprisonment. He now appeals against conviction and sentence by leave of the single judge who, on 22 September 2005, granted the Appellant unconditional bail pending appeal.

Section 58 of the Merchant Shipping Act 1995 ("Section 58")

2. The following provisions of section 58 are material:

"58(1) This section applies –

(a) to the master of, or any seaman employed in, a United Kingdom ship; and

(b) to the master of, or any seaman employed in, a ship which –

(i) is registered under the law of any country outside the United Kingdom; and

(ii) is in a port in the United Kingdom or within United Kingdom waters while proceeding to or from any such port.

(2) If a person to whom this section applies, while on board his ship or in its immediate vicinity –

(a) does any act which causes or is likely to cause –

(i) the loss or destruction of or serious damage to his ship or its machinery, navigational equipment or safety equipment, or

(ii) the loss or destruction of or serious damage to any other ship or any structure, or

(iii) the death of or serous injury to any person, or

(b) omits to do anything required –

(i) to preserve his ship or its machinery, navigational equipment or safety equipment from being lost, destroyed or seriously damaged, or

(ii) to preserve any person on board his ship from death or serious injury, or

(iii) to prevent his ship from causing the loss or destruction of or serious damage to any other ship or any structure, or the death of or serious injury to any person not on board his ship,

and either of the conditions specified in subsection (3) below is satisfied with respect to that act or omission, he shall (subject to subsections (6) and (7) below) be guilty of an offence.

(3) Those conditions are –

(a) that the act or omission was deliberate or amounted to a breach or neglect of duty;

(b) that the master or seaman in question was under the influence of drink or a drug at the time of the act or omission.

(4) If a person to whom this section applies –

(a) discharges any of his duties, or performs any other function in relation to the operation of his ship or its machinery or equipment, in such a manner as to cause, or to be likely to cause, any such loss, destruction, death or injury as is mentioned in subsection (2)(a) above, or

(b) fails to discharge any of his duties, or to perform any such function, properly to such an extent as to cause, or to be likely to cause, any of those things,

he shall (subject to subsections (6) and (7) below) be guilty of an offence.

(5) A person guilty of an offence under this section shall be liable –

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

…

(8) In this section –

"breach or neglect of duty", except in relation to a master, includes any disobedience to a lawful command;

"duty" –

(a) in relation to a master or seaman, means any duty falling to be discharged by him in his capacity as such; and

(b) in relation to a master, includes his duty with respect to the good management of his ship and his duty with respect to the safety of operation of his ship, its machinery and equipment; and

"structure" means any fixed or movable structure (of whatever description) other than a ship.

The Facts

3. The circumstances giving rise to the charge under section 58 were as follows. On 15 May 2004 the Appellant was riding a Yamaha Waverunner jet ski ("the Waverunner") at Bowleaze Cove, Weymouth when he collided with another jet ski which was stationary in the water. The rider of the other jet ski, Mr Paul Facer, was injured and thrown into the water. The Appellant jumped in and supported Mr Facer until help came. It proved that Mr Facer had sustained very serious facial injuries. He had to be placed on a life support system and required reconstructive surgery to his cheekbone, eye socket and jaw.
4. The Appellant was originally indicted under section 35 of the Offences Against the Person Act 1861. A few days before the trial on that indictment the Crown, without opposition, obtained permission to prefer a fresh indictment under section 58.
5. The Appellant applied to Mr Recorder A Davies QC to have the indictment quashed. He argued that the Waverunner was not a "ship" within section 58(1). Section 313(1) of the 1995 Act, the definition section, provides that:

(1) "Ship" includes every description of vessel used in navigation".

The Appellant contended that the Waverunner was not a "vessel used in navigation". He relied upon the decision of Sheen J in Steedman v Scofield [1992] 2 Lloyds Rep 163, which had held that a jet ski was not a "ship" within the essentially identical definition of the Merchant Shipping Act of 1894. The Recorder dismissed the application, holding that the features of the Waverunner differed from the features of the jet ski in Steedman v Scofield to an extent that brought the former within the definition of a "ship".

6. Having failed in this application, the Appellant pleaded guilty to the charge. He did so on the basis that he was the master of the Waverunner under the definition of "master" in section 313, namely:

" "master" includes every person (except a pilot) having command or charge of a ship…"

and that he had been in breach of duty in failing to keep a good look-out.

7. When the appeal initially came before this court, counsel for the Appellant proposed to take the point relied upon below, namely that the Waverunner did not fall within the definition of a "ship" in the 1995 Act. Counsel for the Crown made it plain that this was being treated as a test case. This caused us some concern for a number of reasons. Firstly, no attention appeared to have been given to the requirement in subsection (1) of section 58 that the ship should be either a United Kingdom ship or a ship registered under the law of a country outside the United Kingdom. Secondly, we were aware of a number of authorities in relation to the meaning of "ship" or "vessel" to which counsel had not referred in their skeleton arguments. Thirdly, we were not satisfied that section 58 had any application to negligent navigation. In these circumstances we adjourned the case so that these points could be considered. When the case came back before us Admiralty leaders had been instructed: in the person of Mr Nigel Teare QC for the Crown and Mr Lionel Persey QC for the Appellant. The latter had produced a 38 page skeleton argument and we were referred to some 40 authorities. We are grateful to counsel for the assistance which they have provided in this case, which is one of some general importance.

Registration

8. It is now common ground that the Waverunner was, at the material time, registered neither in the United Kingdom nor in any country outside the United Kingdom. However, Mr Teare wove his way through a tortuous statutory path and persuaded both Mr Persey and us that, by reason of section 17(2)(a) and (b) of the Interpretation Act 1978, Regulation 4 of Statutory Instrument 1991 No.1366 remains in force and takes effect so far as relevant, as follows:

(1) It is hereby directed that section 58 of the Merchant Shipping Act 1995 shall extend to ships (other than fishing vessels) of the following description, that is to say sea-going ships-

(i) which are wholly owned by a person resident in … the United Kingdom; and

(ii) which are entitled to be registered in the United Kingdom under the Merchant Shipping Act 1995 but are not registered whether in the United Kingdom or elsewhere;

and to masters and seamen employed in them.

(2) It is hereby directed that the said section 58 shall apply to sea-going ships (other than fishing vessels) which are not registered, whether in the United Kingdom or elsewhere, other than ships falling within paragraph (1) above, and to masters and seamen employed in them, when such ships are within the seaward limits of the territorial sea of the United Kingdom while proceeding to or from a port in the United Kingdom.

9. The Waverunner was jointly owned by the Appellant and a friend of his, also resident in the United Kingdom. Thus, if the Waverunner was a "sea-going ship" and the Appellant was the "master employed in" her, section 58 applied to him.

The issues

10. The following issues were canvassed before us:

(1) Was the Waverunner a "ship"? If so

(2) Was the Waverunner a "sea-going ship"?

(3) Was the Appellant the "master … employed in" the Waverunner?

(4) Did section 58 apply to negligent navigation?

Was the Waverunner a "ship"?

11. Part 1 of the 1995 Act deals with the registration of British ships. Section 10 requires the Secretary of State to make regulations providing for the registration of such ships. He has done so. Under these regulations a register of British ships is maintained. A witness statement from the Operations Manager responsible for this register informs us that 646 "wet bikes" are registered. (For copyright reasons jet skis are described as wet bikes on the register). Provided that a British owner can submit all the appropriate documentation, which includes a survey certificate for tonnage measurement and a completed "carving and marking note", a wet bike will be registered.
12. Guidance published by the Registry of Shipping and Seamen under the heading "Registering Pleasure Vessels (Part 1)" explains:

"The main reason for registering a ship has always been to prove its nationality. For merchant/pleasure ships, Part 1 identification is essential for overseas voyages. Another reason for Part 1 registration is to use the ship as security to obtain a marine mortgage which in turn is registered. Ownership details are fully investigated. Purchasers of UK registered ships can obtain a Transcript of Registry which shows the registered owners of the ship and whether there are any outstanding mortgages lodged against that vessel."

We suspect that the reason why so many jet skis have been registered may be because those providing finance for their purchase have required this. We can see the attraction of giving a broad definition to "ship" for the purposes of registration of title. Nonetheless, the fact that such craft are registered does not demonstrate conclusively that they fall within the definition of "ships" under the 1995 Act – see European and Australian Royal Mail Co v P & O Steam Navigation Co (1864) 14 LT 704.

13. The Recorder described the characteristics of the Waverunner as follows:

"…if it has a length of 3.2 meters and a beam of 1.2 meters. It has a boat like deep 'V' planing type hull, and mention is made of a keel. It has seats, not one but three, and inferentially can accommodate a rider (and I use the term loosely) and 2 passengers. A person can sit in it when it is stopped in the water, as one can in a boat."

We have seen a photograph of the Waverunner. It has handlebars and seats which resemble those of a motor cycle. Thus the seats are in a row one behind the other and one sits astride them. We think that the Recorder's use of the word "rider" was appropriate. We would describe the rider and any passenger as sitting on, rather than in, the Waverunner. The Waverunner has no mast or structure to which a flag could be attached, nor does it appear to have any storage space.

14. Mr Teare accepted that one would not describe the Waverunner as a "ship", giving that word its normal English meaning. He submitted, however, that the normal meaning was extended by the definition in section 313 of the 1995 Act as including "every description of vessel used in navigation". Mr Persey argued that there were two reasons why the Waverunner did not fall within the definition of a "ship". The first was that by reason of the nature of its construction, the Waverunner could not be described as a vessel: the second was that the Waverunner was not "used in navigation".

The construction of the vessel

15. Mr Persey, understandably, put at the forefront of his case the decision of Sheen J, sitting in the Admiralty Court, in Steedman v Scofield [1992] 2 Lloyd's Rep 163. That case involved a collision between a jet ski and a speedboat. The owner of the latter brought a claim in negligence and the defendants sought to have it struck out as time barred under section 8 of the Maritime Conventions Act 1911. The time limit under that section related to any claim against a 'vessel'. Section 10 of the 1911 Act provided that it was to be construed as one with the Merchant Shipping Acts. Section 742 of the Merchant Shipping Act 1894 provided:

" "vessel" includes any ship or boat, or any description of vessel used in navigation:

"ship" includes every description of vessel used in navigation not propelled by oars…"

Sheen J held that the jet ski did not fall within this definition.

16. Part of the reason for Sheen J's conclusion was the nature of the construction of the jet ski. It was very different from that with which we are concerned. When floating in the water it could not be boarded. The rider lay on his stomach on the craft, holding on to the handlebars and squeezed the throttle. Only when the craft attained a sufficient speed to attain stability could the rider pull himself aboard and kneel on the rear deck pad. From that position he could then stand up, operating the jet ski from a standing position. Sheen J contrasted the jet ski with a boat, which conveyed the concept of a structure with a concave shape providing buoyancy for the carriage of persons or goods. He went on to observe that, in common parlance, a "vessel" was a word used to refer to craft larger than rowing boats, which included every description of watercraft used or capable of being used as a means of transportation on water.
17. The Recorder, understandably, contrasted Sheen J's jet ski with the Waverunner which is the subject of this appeal. The latter has a concave hull that gives the craft sufficient buoyancy to enable three riders to sit astride the saddle. The craft bears a much closer resemblance to a boat than that which Sheen J. had to consider. We do not consider that it is possible to conclude, on the basis of its construction alone, that it is incapable of falling within the first part of the definition of a ship in section 313 of the 1995 Act, namely "every description of vessel". Of much more importance is the qualification that the definition adds to that phrase, namely "used in navigation".

'Used in navigation'

18. Before turning to the authorities where this phrase has been considered, it is worth considering the context in which the definition is set. The early Merchant Shipping Acts were concerned with commercial shipping, and this concern remains the predominant theme of the 1995 Act. The primary concern of this legislation is shipping carried on as a business. This is certainly true of Part III of the Act, in which section 58 appears. Part III deals with 'Masters and Seamen'. Section 24, with which this Part begins, provides that, subject to certain exceptions, the Part applies "only to sea-going ships and masters and seamen employed in sea-going ships". The excepted sections are not restricted to sea-going ships, but they are nonetheless directed to ships upon which seamen are serving under contracts of employment.
19. In Steedman v Scofield Sheen J reached the following conclusions in relation to the phrase "used in navigation":

"Navigation is the nautical art or science of conducting a ship from one place to another. The navigator must be able (1) to determine the ship's position and (2) to determine the future course or courses to be steered to reach the intended destination. The word "navigation" is also used to describe the action of navigating or ordered movement of ships on water. Hence "navigable waters" means waters on which ships can be navigated. To my mind the phrase "used in navigation" conveys the concept of transporting persons or property by water to an intended destination. A fishing vessel may go to sea and return to the harbour from which she sailed, but that vessel will nevertheless be navigated to her fishing grounds and back again.

"Navigation" is not synonymous with movement on water. Navigation is planned or ordered movement from one place to another. A jet ski is capable of movement on water at very high speed under its own power, but its purpose is not to go from one place to another. A person purchases a jet ski for the purpose of enjoying "the thrills of waterskiing without the ties of a boat and towrope" and for the exhilaration of high speed movement over the surface of water. The heading of the craft at any particular moment is usually of no materiality. (I use the word "heading" because it is more appropriate than the word "course". The word "course" denotes a constant direction on the same heading.) Indeed part of the thrill of driving a jet ski appears to come from frequent alterations of heading at high speed.

It may be possible to navigate a jet ski but in my judgment it is not "a vessel used in navigation"."

20. This passage, if correct, is fatal to the prosecution's case. Mr Teare submitted, however, that Sheen J was in error in Steedman v Scofield in stating that "used in navigation" conveyed the "concept of transporting persons or property by water to an intended destination" and in saying that "navigation" was "planned or ordered movement from one place to another". His submission was to the effect that navigation involved no more than controlled travel over water. In so submitting he relied particularly on two authorities.
21. The "Von Rocks" [1998] 2 Lloyd's Rep 198 was a decision of the Irish Supreme Court. At issue in that case was whether a backhoe dredger was a ship or vessel subject to arrest pursuant to the Irish Jurisdiction of Courts (Maritime Convention) Act 1989. That Act provided that "ship" included "every description of vessel" and that "vessel" included "any ship or boat or any other description of vessel used in navigation". The headnote to the report accurately described the dredger as follows:

"Von Rocks was a type of maritime dredger called a backhoe dredger which was primarily used in harbours, channels or estuaries to deepen the waters at such location. When not in operation it was a floating platform comprising 10 individual pontoons bolted together. When in use it was held in position on the sea-bed by three spud legs which were capable of being hydraulically lowered and raised. A backhoe dredger had no bow, no stern, no anchors, no rudder or any means of steering and no keel or skeg. It had no means of self-propulsion mechanical or otherwise and it had no wheelhouse.

On completion of a contract a backhoe dredger could be moored to the site of its next engagement either by being dismantled and transported by road or by being towed by sea. Extensive preparations were required to make the dredger seaworthy for towing for any significant distance. When under tow the dredger was unmanned and played no part in the performance of the operation."

At first instance, Barr J held that the dredger was not a "ship or vessel" within the Act. In so doing he stated that he accepted the conclusion of Sheen J in Steedman v Scofield that transporting persons or property by water to an intended destination was a concept inherent in navigation.

22. The Supreme Court reversed Barr J. Keane J, giving the judgment of the court, held at p. 207:

"… the fact that the carriage of cargo or passengers is not the exclusive or even the primary object for which the craft is being used is not a decisive consideration. The preponderance of judicial opinion would support the view that, provided the craft was built to do something on water and, for the purpose of carrying out that work, was so designed and constructed as to be capable of traversing significant water surfaces and did in fact regularly so traverse them, it is capable of being classified as a "ship" despite the absence of any form of self-propulsion or steering mechanism, such as a rudder."

23. Keane J considered Steedman v Schofield and observed:

"The finding in that case that a jet ski was not a "ship" within the meaning of the Merchant Shipping Acts is hardly surprising, but it is questionable, with respect, whether, to come within the category of a "ship" the purpose of a craft must be "to go from one place to another". In the case of non-commercial craft, it seems somewhat unreal to regard their purpose as being a journey from one point to a specific destination. Yachts which take part in the America's Cup are designed and constructed with a view to testing the excellence of their technology and the seamanship of their crews rather than transporting people from one place to another. On a less exalted level, people will for long continue to derive enjoyment from being on the sea, not because they are accomplishing a journey to an intended destination but simply for the pleasure of – in the well worn phrase from The Wind in the Willows – "messing about in boats"."

24. This statement was obiter, as Keane J's final summary of the court's reasons for finding that the dredger was a ship demonstrated:

"Von Rocks undoubtedly lacks some of the characteristics one would normally associate with a "ship". It is not self-propelled, it normally is not manned by a crew and it has no form of rudder or other steering mechanism. But it is a structure designed and constructed for the purpose of carrying out specific activities on the water, is capable of movement across the water and in fact spends significant periods of time moving across the seas from one contracting site to another. It was indeed in the course of just such a voyage that it met with the mishap which has given rise to the present proceedings. If it is to do its normal work, it must be in a seaworthy condition and, it would seem, the regulatory authorities here and elsewhere treat it as subject to compliance with the normal requirements as to seagoing vessels."

25. The other decision relied upon by Mr Teare was a decision of the Court of Appeal in Perks v Clark [2001] 2 Lloyd's Rep 431. The issue in that case was whether jack-up drilling rigs, which were towed from one location to another to drill for oil, were "ships" for the purposes of the Income and Corporation Taxes Act 1988, which made more generous provisions in relation to seafarers serving on ships. Reversing the decision of the judge below, and restoring that of the Commissioners, the Court held that such rigs were ships.
26. In the leading judgment, Carnwath J considered a number of authorities, including The Von Rocks and concluded that:

"… so long as "navigation" is a significant part of the function of the structure in question, the mere fact that it is incidental to some more specialized function, such as dredging or the provision of accommodation, does not take it outside the definition. There may be an issue of degree as to the significance of the navigation on the facts of a particular case, but that, as the observations of Lord Justice Scrutton show, is a question for the fact-finding tribunal. Those examples also show that "navigation" does not necessarily connote anything more than "movement across water"; the function of conveying persons and cargo from place to place" (in the judge's words) is not an essential characteristic."

27. After considering these and other authorities, we have come to the conclusion that for a vessel to be "used in navigation" under the Merchant Shipping Acts it is not a necessary requirement that it should be used in transporting persons or property by water to an intended destination, although this may well have been what navigation usually involved when the early Merchant Shipping Acts were enacted. What is critical in the present case is, however, whether, for the purposes of the Merchant Shipping Act definition of ship, navigation is "the planned or ordered movement from one place to another" or whether it can extend to "messing about in boats" involving no journey at all. As to this question there are a number of relevant authorities to which we have not yet referred.
28. In The Mayor of Southport v Morriss [1893] 1 QB 359 the issue was whether a launch used for the purpose of carrying passengers on pleasure trips round an artificial lake half a mile long by 180 yards wide was a ship for the purposes of the Merchant Shipping Act 1854, which defined ship as including "every description of vessel used in navigation not propelled by oars". In considering a case stated by the magistrates, Lord Coleridge CJ held that the launch was not a ship. He held at p. 361:

"We are therefore reduced to the question whether this launch was a vessel used in navigation. I think that, having regard to the size of the sheet of water on which it was used, it was not. Navigation is a term which, in common parlance, would never be used in connection with a sheet of water half a mile long. The Attorney-General has asked where we are to draw the line. The answer is that it is not necessary to draw it at any precise point. It is enough for us to say that the present case is on the right side of any reasonable line that could be drawn."

29. Dicta of the House of Lords in Wells v Owners of the Gas Float Whitton No 2 [1897] AC 397 lend further support to the thesis that navigation for the purposes of the Merchant Shipping Acts involves the ordered progression by water from one place to another, usually with cargo or passengers. In that case the relevant issue was whether a gas float, shaped like a boat but moored in tidal waters as an aid to navigation was a ship or vessel that could be the subject of salvage. Holding that it was not Lord Herschell observed at p. 243

"It was not constructed for the purpose of being navigated or of conveying cargo or passengers"

At p. 345, commenting on cases where salvage had been awarded in respect of rafts of timber, he said:

"But here again it must be remembered that rafts are frequently so constructed as to be in a sense navigated: they are capable of being and are steered. They often have crews resident on board; they are used for the transport, from place to place, by water, of the timber of which they consist and sometimes of timber placed upon them."

30. Lord Watson at p. 347 approved the statement that:

"there are no proper subjects of a maritime claim for salvage other than vessels or ships used for the purpose of being navigated and goods which at one time formed the cargoes of such vessels."

31. Finally we refer to the case of Curtis v Wild [1991] 4 All ER 172. This was an action by one dinghy sailor against another for personal injuries as a result of being run down after capsizing. The issue was whether the claim was subject to the two year limitation period imposed in relation to claims against vessels or their owners by section 8 of the Maritime Conventions Act 1911, which fell to be construed as one with the Merchant Shipping Acts. After consideration of Southport Corporation v Morriss and a case which distinguished it, Ross v Weeks [1913] 2 K B 229, Henry J concluded that navigation involved proceeding from an originating place A to a terminus B and not just the "use of vessels for pleasure purposes by people who were messing about in boats".
32. In considering the effect of these authorities one must not lose sight of the context in which the issue of the meaning of a "ship" arises. This is not easy, as the 1995 Act consolidates a number of statutes dealing with shipping, not least of which is the Merchant Shipping Act 1894, itself a consolidating Act. Whilst, as we have observed, there may be reasons for giving "ship" a wide meaning for the purposes of Part I which deals with registration, one must not adopt a meaning that makes a nonsense of other provisions which govern the use and operation of ships. Those provisions, as the title 'Merchant Shipping' suggests, are primarily aimed at shipping as a trade or business. While it may be possible to extend the meaning of ship to vessels which are not employed in trade or business or which are smaller than those which would normally be so employed, if this is taken too far the reduction can become absurd.
33. The meaning that Mr Teare would give to "used in navigation" adds nothing to the ordinary meaning of vessel. We have concluded that those authorities which confine "vessel used in navigation" to vessels which are used to make ordered progression over the water from one place to another are correctly decided. The words "used in navigation" exclude from the definition of "ship or vessel" craft that are simply used for having fun on the water without the object of going anywhere, into which category jet skis plainly fall. Mr Teare pointed out, by reference to a chart of Weymouth Harbour, that jet skis were required to follow a channel from the shore before reaching more open waters in which they could be driven. He argued that this demonstrated that jet skis are used in navigation. We do not agree. Following the channel was merely the means of getting to the area where the jet skis could be used for racing around in the manner which led to the accident with which this case is concerned.
34. For this reason alone, we have concluded that the Recorder was wrong to hold that section 58 applied to the facts of this case.

"Sea-going"

35. We had little argument as to what was meant by a "sea-going ship", perhaps because counsel only realised late in the day that section 58 only applied to the Waverunner if it was a seagoing ship. Mr Teare submitted that the craft was a sea-going ship because it was being used on the sea as opposed to on inland waters. Mr Persey submitted that the craft was not sea-going because it was being used, as the evidence showed, within the limits of the port of Weymouth.
36. Part III of the 1995 Act is headed 'Masters and Seamen'. Section 24 provides that, with the exception of certain specified sections, Part III applies only to "ships which are sea-going ships and masters and seamen employed in sea-going ships". Section 58 is one of the excepted sections but, as we have explained in paragraphs 8 and 9 above, only applies to unregistered ships if they are seagoing ships.
37. There is no statutory definition of 'sea-going' but a clue to its meaning is given by another excepted section, section 49. This provides:

"(1) Subject to section 48, if a ship to which this section applies goes to sea or attempts to go to sea without carrying such officers and other seamen, as it is required to carry under section 47, the owner or master shall be liable –

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine;

and if the ship, if in the United Kingdom, may be detained.

(2) This section shall, in its application to ships which are not sea-going ships, have effect as if for the words "goes to sea or attempts to go to sea" there were substituted the words "goes on a voyage or excursion or attempts to do so" and the words "if in the united Kingdom" were omitted."

The inference is that a sea-going ship is a ship which 'goes to sea' and that a ship which remains within the United Kingdom is not a sea-going ship. What is not clear is whether a ship which remains within coastal waters is or is not a sea-going vessel. We need not resolve this question. Section 49 buttresses our conclusion that a vessel used in navigation is a vessel which is used to make ordered progression from one place to another, though we accept that an excursion arguably extends this concept to embrace a round trip.

38. A sea-going vessel is a vessel which sets out to sea on a voyage. Thus section 42, which applies only to sea-going ships, implies a term into the contract of employment of seamen that the owner and the master will use all reasonable means to ensure the seaworthiness of the ship "for the voyage."
39. The suggestion that the Waverunner was a sea-going ship is worthy of A.P.Herbert. By no stretch of the imagination could that craft be so described. While jet-skis are used on the sea in proximity to land, they do not go to sea on voyages nor, we suspect would they be seaworthy in heavy weather. This is a further reason for allowing this appeal.

"Master or seamen employed in the ship"

40. While section 58 states that it applies to "the master of, or any seaman employed in", a United Kingdom ship, Regulation 4 of S.I. 1991 No 1366 provides that section 58 applies to a "master and crew employed in" an unregistered ship. Mr Persey submitted that the section only applies to a master who is employed as such. Not without some hesitation we have concluded that he is correct. Part III deals largely with the terms under which masters and crew serve. Some sections in Part III expressly apply to a master employed as such. We have concluded that the same must be true of Section 58. Were this not so, the owner/master of a yacht registered in the United Kingdom who causes serious damage to its engines or navigational equipment when under the influence of drink will be guilty of a criminal offence punishable, on indictment, with up to two years imprisonment. We find it hard to believe that Parliament intended to make it a criminal offence to damage ones own property.
41. As the Appellant was not employed as master of the Waverunner section 58 did not apply to him. This is a further reason for allowing this appeal.

Does section 58 apply to negligent navigation?

42. Some of the provisions that now form section 58 have a long history. Section 220 of the Merchant Shipping Act 1894 provided:

"If a master, seaman, or apprentice belonging to a British ship, by wilful breach of duty or by neglect of duty or by reason of drunkenness –

(a) does any act tending to the immediate loss, destruction, or serious damage of the ship, or tending immediately to endanger the life or limb of a person belonging to or on board the ship; or

(b) refuses or omits to do any lawful act proper and requisite to be done by him for preserving the ship from immediate loss, destruction, or serious damage, or for preserving any person belonging to or on board the ship from immediate danger to life or limb,

he shall in respect of each offence be guilty of a misdemeanour."

43. In Deacon v Evans [1911] 1 KB 571 the master of a three-masted barque was prosecuted under this section for failing to keep a proper look-out when on watch. His failure resulted in a collision with a steam trawler that sank in consequence with the loss of ten hands. The master was convicted before the magistrates, but successfully appealed by way of case stated. Lord Alverstoke CJ gave the following short judgment:

"This section, which has been copied in practically identical terms from earlier Acts, is more than fifty years old, and it is no exaggeration to say that there have been hundreds and thousands of cases in which, if the conduct of the respondent here is to be regarded as a criminal offence, prosecutions might have been maintained. Therefore when we find it suggested that the negligent conduct of a man who is purporting to discharge his duty of assisting in the navigation of a ship amounts to a criminal offence, it is of great importance to determine whether that suggestion is well founded. The negligence complained of here was either that the master did not keep a proper look-out himself so as to have seen any vessel four or five miles away for at least half and hour, or that he did not put a look-out man on the forecastle, from which position the man stationed there could have seen any vessel right up to the time of the collision; and the question is whether such negligence is the kind of neglect of duty which is struck at by s.220. In my opinion it is not; that section was not intended to make criminally liable a person who has been negligent in the discharge of his duty, which he is carrying out or purporting to carry out, in the navigation of a ship. If it was intended to make simple negligence a criminal offence other language would have been used. The appeal must be dismissed."

44. The provisions of section 220 of the 1894 Act survive as section 58(2) of the 1995 Act, albeit that the provisions have been extended to cover acts or omissions causing damage to other vessels and structures, or causing death or serious injury to persons not on board the ship on which the breach of duty occurs. Section 58(4) extends the description of the conduct which attracts criminal liability.
45. It is clearly arguable that this extension of the ambit of the relevant section embraces breach of duty in relation to the navigation of a vessel, and Mr Teare so submitted. This is not, however, an issue that we have to resolve having regard to our finding that section 58 had no application on the facts of this case. We would simply observe that failure to comply with the International Regulations for the Prevention of Collisions at Sea is made an offence by the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 and that the offence carries the same maximum penalty as section 58. Where allegations are made of conduct which infringes the Collision Regulations it would seem simpler and more appropriate to charge this offence rather than to allege breach of section 58.

Conclusion

46. The prosecution of the Appellant under section 58 was, for the reasons that we have given, misconceived. On the advice of his counsel he took one valid objection to the charge. As we have shown, that was not the only ground of objection. This appeal is allowed.