QUEEN'S BENCH DIVISION
Rolls Building, Fetter Lane, London, EC4A 1NL
B e f o r e :
| FISH & FISH LIMITED
|- and -
|SEA SHEPHERD UK
SEA SHEPHERD CONSERVATION SOCIETY
Mr John Russell (instructed by Clyde & Co.) for the 1st Defendant
Hearing dates: 28, 29 and 30 May 2012
Crown Copyright ©
Mr Justice Hamblen :
"Whether the incident on 17 June 2010 was directed and/or authorised and/or carried out by the First Defendant, SSUK, its servants or agents as alleged in paragraph 9 of the Particulars of Claim and as further particularised in paragraph 6 of the Reply and accordingly whether SSUK is liable, directly or vicariously, for any alleged damage to the tuna fish cage and/or the release of the fish."
"Established in 1977, Sea Shepherd Conservation Society (SSCS) is an international non-profit, marine wildlife conservation organization. Our mission is to end the destruction of habitat and slaughter of wildlife in the world's oceans in order to conserve and protect ecosystems and species.
Sea Shepherd uses innovative direct-action tactics to investigate, document, and take action when necessary to expose and confront illegal activities on the high seas. By safeguarding the biodiversity of our delicately-balanced ocean ecosystems, Sea Shepherd works to ensure their survival for future generations."
"Captain Watson is a sea captain in the truly traditional sense- where he is the master and commander of his own ships and is not dictated to by a corporate Board. He makes the decisions and he bears the full responsibility for his actions.
Without a doubt, the Sea Shepherd is the most experienced marine wildlife conservation interventionist organization in the world and Captain Watson is the single most experienced conservation sea captain on the high seas today."
To raise funds for and awareness of campaigns to protect marine wildlife and ecosystems worldwide. To investigate UK based work for the protection of marine and/or freshwater wildlife with the aim of UK based campaigns.
The purposes of the charity are: 1) to advance education in the field of marine and freshwater ecology; 2) to promote the conservation and preservation of marine and freshwater living organisms; 3) to promote humane behaviour towards animals, particularly but not exclusively marine animals, which are in need of care and attention by reason of sickness, maltreatment, poor circumstances or ill usage; 4) any other purposes deemed charitable under the laws of England and Wales.
- makes grants to organisations
- provides buildings/facilities/open space
- provides services
- provides advocacy/advice/information
- sponsors or undertakes research
- other charitable activities
Where the charity operates
- throughout England and Wales, Scotland."
The Claimant's claims
The relevant legal principles
"I use the words common design because they are readily to hand but there are other expressions in the cases, such as "concerted action" or "agreed on common action" which will serve just as well. The words are not to be construed as if they form part of a statute. They all convey the same idea. The idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for any common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements."
"The underlying concept for joint tortfeasance must be that the joint tortfeasor has been so involved in the commission of the tort as to make himself liable for the tort. Unless he has made the infringing act his own, he has not himself committed the tort. That notion seems to us what underlies all the decisions to which we were referred. If there is a common design or concerted action or otherwise a combination to secure the doing of the infringing acts, then each of the combiners has made the act his own and will be liable."
The capacity issue
(1) SSCS's money bought the "STEVE IRWIN". The evidence was that SSCS paid off the loan made to it and SSUK to purchase the vessel and that it made the additional payments necessary for the purchase;
(2) SSCS paid for the extensive modifications made to the "STEVE IRWIN". The evidence was that these cost over US$783,000;
(3) SSCS bought the helicopters for the vessel. The evidence was that in 2010 over US$970,000 was spent on helicopters;
(4) SSCS bore the vast majority of the maintenance and repair costs of the "STEVE IRWIN";
(5) SSCS bought the bunkers for the "STEVE IRWIN";
(6) SSCS paid operational costs such as Panama transit;
(7) The crew were paid by SSCS (to the extent that the crew were paid - the majority of the crew are SSCS volunteers);
(8) SSCS chose which volunteers will be on the vessel, and the volunteers entered agreements with it (including an agreement whereby SSCS own all image rights in relation to the campaign);
(9) SSCS decided on what campaigns would be carried out and whether and how the "STEVE IRWIN" would be used in those campaigns.
(1) It was SSCS which commissioned and chose the Blue Rage campaign logo;
(2) It was SSCS which entered the agreements with media organisations to produce the television programmes which publicise its actions and gain support for the campaigns and which received the proceeds therefrom;
(3) It was SSCS which organised the fundraising mailshot for the campaign;
(4) It was SSCS which paid the cost of the Blue Rage campaign, a cost of over US$1million;
(5) The daily reports from the vessel during the course of the operation were sent to SSCS recipients (not to Mr Collis). Only a very small number of Mr Collis's emails at the material time make any reference to Blue Rage at all and it would appear that it was only after the incident had already occurred that he learnt anything about what was actually going on in the campaign.
The common design issue
"OPERATION BLUE RAGE
2010 Mediterranean Bluefin Tuna Defense Campaign
We intend to seize, cut, confiscate, and destroy every illegal tuna fish net we find !"
Making the vessel available for the campaign
Paying the crew
Paying for repairs to the vessel
Seeking campaign contributions