The Admiralty Registrar has today handed down judgment in the matter of Virgin Media Ltd v Joseph Whelan T/A M & J Fish.  The judgment considers whether torts committed within the UK’s Exclusive Economic Zone (“EEZ”) are subject to the jurisdiction of the Courts of England and Wales by reason of Article 7 of the recast Judgments Regulation. 

A copy of the judgment can be found here

The scheme of the United Nations Convention on the Law of the Sea (“UNCLOS”) is to divide the sea into principal parts or zones.  An EEZ is “beyond and adjacent to the territorial sea” up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.  Part V of UNCLOS grants the Coastal State (i.e. the state whose EEZ it is) certain exclusive or sovereign rights in respect of the EEZ and confers jurisdiction on the Coastal State over the EEZ for certain limited purposes. 

The Claimant is the owner of the fibre optic telecommunications cable named Sirius South which runs across the Irish Sea between Lytham St Annes and Dublin. The Claimant alleged that the Defendant’s fishing trawler damaged the cable at a location which was outside UK territorial waters but within its EEZ. The Defendant was domiciled in the Republic of Ireland.

The Claimant commenced proceedings in the English Courts claiming damages in negligence.  It contended that the Admiralty Court had jurisdiction over its claim by reason of Article 7 of the recast Judgments Regulation on the basis that the harmful event occurred within England and Wales.  It put particular reliance on the decision of Burton J in Conocophillips (UK) Ltd v Partnereederei MS Jork [2010] EWHC 1214 (Comm) where it was held that a claim for damages caused by a Vessel colliding with an unmanned oil platform located within the UK’s EEZ was subject to the English Court’s jurisdiction under the predecessor to Article 7 of the recast Judgments Regulation.

The Defendant disputed jurisdiction on the basis that the mere fact that a tort occurred within the UK’s EEZ was not enough to ground jurisdiction in the English Courts and that Conocophillips should be distinguished.  In particular, the Defendant relied upon the differential treatment in UNCLOS of, for example, oil platforms (as in Conocophillips) and submarine cables (as in this case).   

In the case of oil platforms, Articles 56 and 60 of UNCLOS granted the Coastal State the sovereign right to explore and exploit the natural resources of the waters, the seabed and subsoil, and the exclusive right to construct installations and structures for the purposes of exploration and exploitation of those resources.  Further, Article 60(2) expressly granted the Coastal State “exclusive jurisdiction” over installations and structures constructed for the purposes of exploration and exploitation of those natural resources.

By contrast, Article 58(1) provided that all States (i.e. not just the Coastal State) had the freedom to lay submarine cables and pipelines within EEZs just as they had on the High Seas.

In other words, UNCLOS does not grant exclusive or sovereign rights to, or confer jurisdiction upon, the Coastal State in respect of all matters and activities within the EEZ.  Rather the grant of rights and conferral of jurisdiction is functional and limited to specific matters or activities.  Those matters or activities do not include the laying of submarine cables.

The Defendant, therefore, argued that there was no necessary connection between the Coastal State and the laying of submarine cables, since any State could lay a cable within any other State’s EEZ.  Given this lack of connection and the absence of any grant by UNCLOS on the Coastal State of a sovereign or exclusive right, still less a conferral of jurisdiction, in respect of submarine cables there was no reason why the UK’s EEZ should be treated as being part of the UK for the purposes of a claim for compensation for damage to a submarine cable. 

The Admiralty Registrar accepted the Defendant’s arguments and held that the Court did not have jurisdiction over the Claimant’s claim.  

Paul was instructed by Dale Stevens LLP on behalf of the successful Defendant.