Link: Case Summary Document
Citation:  EWCA 544 (England and Wales Court of Appeal, Mummery, McCombe, Beatson LLJ.)
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This appeal dealt with the issue of whether a charity, Sea Shepherd UK (SSUK), was liable as a joint tortfeasor (wrongdoer) in a situation where the property of the appellant was damaged in an action which was designed to stop what the respondent regarded as illegal fishing of blue fin tuna.
SSUK is a company limited by guarantee, and a registered charity. It was the first defendant in the proceedings at first instance. The second and third defendants (both served outside the jurisdiction) were the Sea Shepherd Conservation Society (SSCS) and Paul Watson, the founder of SSCS, and a director of SSUK.
The appellant operates a fish farm off the coast of Malta which is authorised by the International Conference for the Conservation of Atlantic Tuna (ICCAT). ICCAT and European Council Regulation (EC) No. 302/2009 regulate the fishing of Atlantic blue fin tuna. Fishing is only permitted during a limited period each year and a quota system restricts catches. The appellant was not operating outside any official guidelines.
On 17 June 2010 two of the appellant’s vessels were towing cages containing live blue fin tuna from Libya to its fish farm, when, as part of ‘Operation Blue Rage’, a campaign by SSCS, one of them was rammed by another vessel, the ‘Steve Irwin’. A cage was damaged and some 33 tonnes of the total catch of 64 tonnes of fish were released into the sea by divers from the ‘Steve Irwin’. The appellant claimed €760,148 in damages for trespass to and/or conversion of its property. SSUK is the registered owner of the ‘Steve Irwin’, which it purchased in 2006 with funds provided by SSCS. The ship is registered in The Netherlands.
SSCS is a conservation charity based in the United States of America. It was founded in 1977 following a split from Greenpeace. It is an Oregon corporation, and is now based in Washington State. In 2010 it launched ‘Operation Blue Rage’, a campaign aimed at preventing fishing of Atlantic blue fin tuna contrary to the ICCAT’s Regulations and Council Regulation (EC) No. 302/2009. A posting on SSCS’s website dated 23 January 2010 stated that ‘the objective will be to intercept and oppose the illegal operations of blue fin tuna poachers’ and that ‘Sea Shepherd intends to confront the poachers and will not back down to threats and violence from the fishermen’. Watson is the founder and organisational head of SSCS. He is a director, but not an employee, of SSUK. On 17 June 2010, Watson was the Master of the ‘Steve Irwin’.
Were the Sea Shepherd parties all joint tortfeasors? Was there a common design underlying their actions? The judge at first instance said no. The judge rejected the appellant’s case that Watson was the controlling mind behind all the Sea Shepherd entities and acted on behalf of them all. The judge accepted the evidence of the witnesses called on behalf of SSUK that the international organisation is SSCS, to which the national charities, such as SSUK provide support. He stated (at  of the original judgement):
‘…while it is correct that there is a close connection between the various Sea Shepherd entities worldwide, the different entities are separate legal bodies and the operational reality is that SSCS is the global organisation which utilises the resources of other Sea Shepherd entities when it is convenient.’
The judge also held that although the ‘Steve Irwin’ was legally owned by SSUK, it was, at all material times, beneficially owned by SSCS. The ship was being used in an SSCS campaign, for SSCS purposes. In addition, Watson’s title as a director of SSUK was merely honorary, and had no real substance. SSUK did not facilitate the campaign on the evidence, although the facts showed that it made the ship available to SSCS, and was involved in fundraising and other activities attached to the campaign. However, it was held that SSUK was not part of the tort.
On appeal, only the common design issue was in contention. The requirement of a common design in tort law is one that provides protection against indeterminate and uncertain liability. The current legal position on common design in tort is that there are two requirements:
- there must be a common design that the acts relied on as tortious should be done by one or more of the alleged joint tortfeasors, who are the actual perpetrator or perpetrators;
- the other alleged joint tortfeasor, the alleged participator, itself did acts in furtherance of the common design. There is, however, no need for the participator to commit an independent tort.
Thus, once a common design has been established, the question becomes whether the defendant who is said to be a joint tortfeasor has done something that has furthered that common design. In modern terms, providing that the act furthering an undoubted common design is more than de minimis (minimal), it will be sufficient for determining joint liability. There is no longer any need for the act to have been an essential part of or of real significance to the commission of the tort.
Was the trial judge correct to say that there was no common design in this case? Did the judge err in finding that SSUK’s participation was ‘of minimal importance and played no effective part in the commission of the tort’? Beatson LJ (in the leading judgement of the Court of Appeal) said on this point (at ):
‘I have concluded that, in the context of a common purpose which included action to free blue fin tuna from nets and cages by intercepting the fishermen, even leaving aside acts by SSUK which were done for SSCS but not specifically for the “Blue Rage” campaign and what was said during the court proceedings in Seattle, the action of SSUK showed that it had “joined in” the common design by doing acts in furtherance of it. It does not follow from this that the volunteers who drove to France with parts for the vessel, or who supported the campaign by donating small amounts of money, would become joint tortfeasors. It would be necessary to show, in respect of any of them, that their actions amounted to more than facilitation of the tort. Absent evidence about them showing that they made the wrongful act their own, such as the evidence about SSUK, for instance in the Trustees’ Report, their cases appear analogous to those of the seller of goods who knows that they will be imported into the United Kingdom and sold in breach of a patent or copyright…’
Therefore, the requirements for a common design were met:
- SSCS and Watson were the perpetrators of the plan of action; and
- SSUK was the participator who assisted the plan to come to fruition
McCombe and Mummery LLJ agreed on the common design point, with McCombe going further and saying that the appeal should have been allowed on the other point in contention, that of capacity (at -):
‘In my view, it is difficult to see how Mr Watson could discard his position as a director of SSUK and say he was merely acting, on the occasion in question, only for SSCS. He was a director of SSUK, which was not merely a “shell company”. It had its own independent activities within the global Sea Shepherd organisation. With respect to the judge, I do not know what an “honorary” director of a company is. Either he was a director of SSUK or he was not. SSUK remained the legal owner of the vessel and, while it may not have been (on the judge’s finding) in possession or control of the vessel or its beneficial owner, it retained that status and had left the vessel in the control of SSCS for the purposes of, what this court finds, was the “common design” of the two entities. Mr Watson’s name appears as a trustee and director in SSUK’s report to June 2010 in which SSUK’s public benefit role could not have been more clearly stated. That report, as Beatson LJ notes, was issued with the company’s authority. When the vessel and its crew, including Mr Watson, embarked upon the attack about which complaint is made, he was still a director of that company – a status which he could not shake off – carrying out one of SSUK’s express corporate objects. Was it open for him to choose, from minute to minute, the capacity in which he was acting? Both SSCS and SSUK wanted such attacks to occur, where required in furtherance of their common objectives. Mr Watson, it is accepted, was the overall directing mind of the operation and, in my judgment, might well be said to have been acting with the status in each organisation which, in fact, he held.’
Therefore, although the actual perpetrators of the tort were SSCS and Watson, SSUK was held to have participated by doing actual acts which furthered the common design. The appeal was allowed, and all three respondents were held to be joint tortfeasors, and jointly liable in damages yet to be determined.
The case may be viewed at: http://www.bailii.org/ew/cases/EWCA/Civ/2013/544.html
Implications of this case
The Court of Appeal rejected the findings of the trial judge on the issue of a common design involving all the Sea Shepherd parties in a joint tort. The Court of Appeal held that they were all involved. However, joint responsibility in the law of tort is more restricted than it is in the criminal law. The law of tort does not recognise true accessory liability, only joint liability where the person who can be termed the actual perpetrator is the agent of another person. Nevertheless, a joint tortfeasor is fully liable for the claimant’s loss. This could represent a substantial liability for a charity found to be a joint tortfeasor, even as a mere ‘participator’ (which SSUK was found to be in this case).