Duties Of Wharfinger To Warn Berth Holders On The Suitability Of Moorings

The recent case of George v Coastal Marine 2004 Ltd ("Bon Ami") [2009] EWHC 816 (Admiralty) raises issues concerning the duty of a wharfinger (keeper of the wharf or quay) to take reasonable steps to ensure that the given berth is safe. If the wharfinger is unable to guarantee the safety and suitability of the berth, then it must warn the user of any foreseeable dangers. The case considers the extent of this duty and whether or not the wharfinger is liable as an occupier of the area pursuant the Occupiers Liability Act 1957 notwithstanding the fact that the berth is positioned within an area which it has little or no control over.

Bon Ami was a former fishing vessel owned by Mr George. He had entered into an oral agreement in April 2005 to berth the vessel in Coastal Marine's quay. The vessel was originally to be moored in an area known as 'layerage 1', which was a berth that had previously been occupied by Mr George. However, that mooring became unavailable and Mr George was given the option to come back at a later date or to relocate to an alternative berth known as 'layerage 3', which was located on tidal foreshore and seabed. Mr George was advised that that particular mooring was less suitable, but for all intents and purposes would remain safe so long as the vessel was placed sufficiently to seaward. Mr George agreed to berth Bon Ami at layerage 3 but ignored the berth owner's advice by placing the vessel to the landward end of the berth. Subsequently, the vessel sustained damaged due to its keel being unsupported as it grounded hollow. Mr George issued court proceedings in the sum of £87,949 in damages for, inter alia, past and ongoing repairs, fuel costs and loss of charter income or loss of use.

It was averred by the claimant that the mooring contract contained an implied warranty of safety and that the defendant was under a duty of care in common law and/or pursuant to the Occupier's Liability Act 1957 (the "Act") that the berth would be suitable and safe for the vessel to lie upon. The claimant submitted that the defendant had acted in breach of contract and/or duty of care by failing to supply a safe berth, thereby causing damage to the vessel. By placing the vessel on layerage 3, it was unsupported when grounded on the uneven sea bed as a result of the increased gradient of the beach.

The defendant argued that the berth was safe so long as the vessel was placed to seaward. Its staff had given clear warnings and instructions to...