Sea Shepherd Uk v Fish & Fish Limited: Supreme Court Has Bigger Fish To Fry

The Supreme Court has allowed an appeal by Sea Shepherd UK (SSUK) that it should not be jointly liable in tort with its US parent, the Sea Shepherd Conservation Society (SSCS), for its part in an environmental campaign against the overfishing of Bluefin tuna in the Mediterranean.

As part of the “Operation Blue Rage” campaign on 17 June 2010, the “Steve Irwin”, a ship owned and operated by SSCS, attacked a ship owned by Fish & Fish that was transporting tuna in fish cages.

Fish & Fish commenced legal proceedings and contended that SSUK had contributed to the attack on its ship by participating in fundraising for Operation Blue Rage and by recruiting volunteers.

At first instance Hamblen J found that the fundraising amounted to £1,730 and two volunteers helped source a pump for the “Steve Irwin” and spent a day working on the ship.  He considered that these two matters were of minimal importance and played no effective part in the commission of the tort.  The Court of Appeal disagreed, finding that the use of violent confrontation by cutting fishing nets was part of a common design and that it was not necessary to establish that what the SSUK did was of any real significance to the commission of the tort.

By a three to two majority the Supreme Court has overruled the Court of Appeal. The majority were reluctant to disturb Hamblen J’s original decision.  In their view SSUK played a passive role. As such it was properly open for Hamblen J to have found on the evidence before him that SSUK’s part in the commission of the tort was of minimal importance.

Lord Sumption and Lord Mance dissented. Lord Sumption delivered a relatively lengthy judgment that focussed on the intention of SSUK and examined a number of copyright infringement cases. He argued that to establish joint liability a shared intention that an otherwise lawful act would assist a tort was required. In his view, the purpose of the Operation Blue Rage campaign was not limited to investigating illegal fishing but also to confront it.  As such, Hamblen J’s view that the campaign would not necessarily involve violence was unrealistic. It was irrelevant that both SSCS and SSUK both appreciated and perhaps hoped that a confrontation would not occur. Lord Sumption also found that although the financial contribution was small it was not trivial or negligible, and that it was clear that the efficient mobilisation of financial and logistical support was important to SSCS. Or as Lord Mance succinctly observed, every little helps.

Organisations that agree to campaign on behalf of others should ensure that they understand what it is that they are being asked to promote. Lord Sumption and Lord Mance both seem concerned by the way that SSCS used its international network to help it raise money to commit potentially violent and criminal acts.  SSUK is perhaps fortunate that it was not very good at raising funds.