Journal of Maritime Law & Commerce, Vol. 47, No.

4, October, 2016

Is It a Vessel, a Ship or a Boat, Is It Just

a Craft, Or Is It Merely a Contrivance?

Gotthard Mark Gauci*

I
INTRODUCTION

Over the centuries, legislators have struggled to define the

terms ‘ship’ and ‘vessel,’ and such definitions have been further
beset by interpretational problems. The emergence of new
commercial craft, including autonomous vessels and floating
storage regasification units, as well as the development of
innovative ‘contrivances’ such as amphibious cars, amphibious
planes, submersible aircraft, autonomous underwater vehicles,
and inflatable banana rafts,1 has plagued maritime law. This
problem must be seen in the context of an admiralty law system
which for a substantial period of time was in the midst of a
struggle taking place between the Courts of Common Law and the
Court of Admiralty.2 Furthermore, in those instances where
statutory definitions are provided, different laws frequently
provide definitions which are, in varying degrees, differently
worded.
The least problematic definition of ‘vessel’ is probably the one
contained in arguably the most important regulatory legislation in
maritime law, i.e. the International Regulations for Preventing
Collisions at Sea, 1972, otherwise known as COLREGS, Rule
--------------------
*Gotthard Mark Gauci LLD (Malta), LLM (Southampton), PhD (Wales),
Lecturer, Plymouth University, UK; Adjunct Professor, World Maritime University,
Sweden. ([email protected])
1
See McEwan v. Bingham [2000] CLY 49.
2
Roscoe E. S., A TREATISE OF THE JURISDICTION AND PRACTICE OF THE
ADMIRALTY DIVISION OF THE HIGH COURT OF JUSTICE, 1 (2d Edition, Stevens and
Sons, London, 1882).

479
480 Journal of Maritime Law & Commerce Vol. 47, No.4

3(a) of which provides that: “the word ‘vessel’ includes every

description of water craft, including non-displacement craft and
seaplanes, used or capable of being used a means of transportation
on water.” The use of the terms ‘includes,’3 ‘watercraft,’ as well
as ‘capable of being used’ in this definition ensures that the
judiciary are unlikely to be stifled if they are minded to apply a
purposive interpretation to the legislation; similarly the
International Convention On Liability And Compensation for
Damage in Connection with the Carriage of Hazardous and
Noxious Substances By Sea (HNS 1996) utilises the term ‘any
type whatsoever’ in its definition of ‘ship’ as meaning ‘any
seagoing vessel and seaborne craft, of any type whatsoever,’4
although ‘seagoing’ can be substantially restrictive as will be
discussed below. The Wreck Removal Convention 2007 also
utilises the ‘seagoing’ restriction and makes specific reference to
the inclusion of aircushion vehicles and submersibles:

“Ship” means a seagoing vessel of any type whatsoever and

includes hydrofoil boats, air-cushion vehicles, submersibles,
floating craft and floating platforms, except when such platforms
are on location engaged in the exploration, exploitation or
production of seabed mineral resources.5

At the other end of the spectrum, one can refer to the definition
in the International Convention on Civil Liability for Oil Pollution
Damage 1969,6 which was only intended to apply vis a vis a
specific type of ‘ship,’ i.e. one actually employed in the carriage
in bulk of persistent oil as cargo; hence, ‘ship’ is defined in
Article 1(1) as meaning ‘any seagoing vessel and any sea-borne
craft of any type whatsoever, actually carrying oil in bulk as
cargo.’ This restricted definition has now been largely superseded
by the more detailed upgrade contained in the consolidated text of
--------------------
3
See Ex p Ferguson (1871) LR QB 280, at 291.
4
HNS 1996, Article 1(1).
5
Loc.cit., Article 2 (See Schedule 11ZA of the Merchant Shipping Act 1995).
6
CLC 1969. The same definition applies to the International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage
1971.
October 2016 What is a Ship? 481

the International Convention on Civil Liability for Oil Pollution

Damage 1992,7 which will be discussed in further detail below.
Another specifically restricted definition is that contained in the
Maritime Labour Convention (MLC) 2006 which defines a ‘ship’
simply by excluding one ‘which navigates exclusively in inland
waters or waters within, or closely adjacent to, sheltered waters or
areas where port regulations apply’; in a further exercise of
delimiting application, Article II (4) of MLC 2006 provides that
‘except as expressly provided otherwise, this Convention applies
to all ships, whether publicly or privately owned, ordinarily
engaged in commercial activities, other than ships engaged in
fishing or in similar pursuits and ships of traditional build such as
dhows and junks. This Convention does not apply to warships or
naval auxiliaries.’
When a statute imposes liability on the owner of a vessel, an
issue may well arise as to ownership of a vessel which has been
abandoned sine spe recuperandi or otherwise. There is a risk that
some jurisdictions may well treat that vessel as res nullius,
thereby depriving a victim of a remedy as the vessel has arguably
no ownership. The appropriately cautious solution adopted by the
United States Federal Oil Pollution Act of 19908 is to extend the
definition of ‘responsible person’ to include ‘the persons who
would have been responsible parties immediately prior to the
abandonment of the vessel.’9

II
THE MERCHANT SHIPPING ACT 1995

The current definition of ‘ship’ in Section 313 of the English

Merchant Shipping Act 199510 is a problematic one which can
trace its origin to preceding and now largely defunct Merchant

--------------------
7
CLC 1992.
8
Public Law 101–380 (H.R. 1465), 18th August 1990.
9
OPA 1990, s. 1001 (32)(F). See, further, Gauci G., The Abandonment of an Oil
Tanker: Compensation and Insurance Implications, J. BUS. L., 105–17 (March 1995).
10
1995 Chapter 21.

481
482 Journal of Maritime Law & Commerce Vol. 47, No.4

Shipping statutes. The current statute defines a ‘ship’ without

defining a vessel11 and states that “‘ship’ includes every
description of vessel used in navigation”.12 The preceding
corresponding definition can be found in legislation enacted a
century earlier in section 742 of the Merchant Shipping Act 1894,
which provided a circular13 definition of a ‘vessel’ and a ship:
“‘vessel’ includes any ship or boat or other description of vessel
used in navigation; ‘ship’ includes every description of vessel
used in navigation not propelled by oars.”14 Under this provision a
‘boat’ with oars could be included under the term ‘vessel’ but,
subject to the decision in Ex p Ferguson15 would be excluded as a
‘ship.’ The 1894 Act does not provide a definition of a ‘boat.’
Whereas part of the definitional problem, i.e. the requirement of
not being propelled by oars,16 was altered by a pre-consolidation
amendment,17 the current definitional reliance of ‘used in
navigation’ has been beset by problems which the English
judiciary in particular have struggled to handle. Courts have at
times tended to examine whether the craft in question was
actually being used in navigation during the operation giving rise
to litigation. This process may well be achieved not merely by
assessing the operation of the craft but also by assessing the
susceptibility of the actual waters to being navigated. The case of

--------------------
11
A ‘vessel’ is defined, however, for the purposes of Part IX (Salvage and Wreck)
of the Merchant Shipping Act 1995 in section 255(1) as ‘including any ‘ship or boat, or
any other description of vessel used in navigation.’ This provision utilises the same
wording used in the definition of ‘vessel’ in section 742 of the Merchant Shipping Act
1894.
12
An almost identical definition is utilised in the Civil Procedure Rules Part 61
(Admiralty Claims) where ‘ship’ is defined as including ‘any vessel used in
navigation’ [§61.1.2(k)].
13
Mandaraka-Sheppard, A., MODERN MARITIME LAW, 14 (2d Ed., Routledge,
London, 2007).
14
Similarly, the 1854 Merchant Shipping Act provided that: “ship shall include
every description of vessel used in navigation, not propelled by oars.”
15
(1871) LR 6 QB 280.
16
See Ex p Ferguson (1871) LR 6 QB 280.
17
See the Merchant Shipping (Registration etc.) Act 1993, Schedule 4, paragraph
2(1)(a).
October 2016 What is a Ship? 483

Curtis v. Wild18 is an illustration of this process related to the

time-bar defence under section 8 of the Maritime Conventions
Act 1911,19 which necessitated the use of the definition of ‘vessel’
under section 742 of the Merchant Shipping Act 1894. The craft
in this case was a so-called ‘lark dinghy’ being used on a reservoir
(Belmont reservoir) with a width of less than one half of a
nautical mile. In the penultimate paragraph of the judgment, the
judge makes quite clear his reliance on his view that the waters of
the reservoir in question were ‘not waters which can be navigated
within the sense used by authorities.’ A lark dinghy, it seems, can
be a craft ‘used in navigation’ but never on Belmont reservoir. A
similar decision had been reached in relation to an electric launch
on an inland lake in Southport Corporation v. Morriss.20 On the
other hand, in Weeks v. Ross,21 a river is treated differently from a
reservoir and Judge Bray was of the opinion in that case that: ‘a
river is a place for navigation and a canal is a place for navigation,
and they are none the less places for navigation because as it
happens this vessel only used a portion of them.’22 Lord Coleridge
in the same case similarly was of the view that ‘if ships coming to
and from the sea were clearly navigating these waters, the fact
that these particular vessels in question did not proceed to sea
does not prevent these waters being navigated by them as they
would be by ships going to and from the sea.’23
The judge in Curtis v. Wild also used the familiar reasoning
used by Judge Schofield in the well-known case of Steedman v.
Scofield,24 to the effect that movement on water does not
constitute navigation, i.e. “there was no evidence . . . that there
was any navigation in the sense of proceeding from an originating
place A to a terminus B for the purpose of discharging people or
cargo at the destination point.”25 This approach led the court of
--------------------
18
[1991] 4 All ER 172, Henry J, QBD Manchester.
19
See now section 190 of the Merchant Shipping Act 1995.
20
[1893] 1 QB 359.
21
[1913] 2 KB 229.
22
Id., at 234.
23
Id., at 235.
24
[1992] 2 Lloyd’s Rep. 163.
25
(1991) 4 All ER 172 at 176.

483
484 Journal of Maritime Law & Commerce Vol. 47, No.4

first instance in Steedman v. Scofield to exclude the applicability

of the two year time-bar to an incident involving a jet-ski. In that
case the jet-ski was being used for fun as distinct from strict
conventional navigation. The second reason was that the jet-ski
was, unlike traditional watercraft, not hollow structured. The
same approach was adopted by the Criminal Court of Appeal in R.
v. Goodwin,26 in the application of the definition of ‘vessel’ in
section 313 of the Merchant Shipping Act 1995 to section 58 of
the same statute. Paragraph 33 of the judgment in this case by the
Criminal Court of Appeal goes seemingly further in excluding jet-
skis from the definition of ‘vessel’ irrespective of the actual use:

The words ‘used in navigation’ exclude from the definition of ‘ship

or vessel’ craft that are simply used for having fun on water without
the object of going anywhere, into which jet-skis plainly fall.

One cannot but help remarking that it is a well-known fact, at

least in maritime circles, that jet-skis are ‘capable of navigation,’
particularly when used by military and law-enforcement
authorities, in which case the purpose of the use is undoubtedly
navigation and navigation related, and the element of ‘fun’ is
excluded. However the statute does not refer to ‘capability of
navigation,’ it is only ‘use’ which is referred to, and to this extent
R v. Goodwin is correctly decided. For the purposes of the term
‘ship’ as used in the Athens Convention, in The Sea Eagle,27 the
Admiralty Registrar was of the opinion that ‘used in navigation’
means ‘capable of being used in navigation whether or not she is
actually being used in navigation at the relevant time.’28 This
would, according to the Admiralty Registrar, include navy ships
like HMS Victory which were used once in navigation and at the
relevant time moored and utilised as restaurants/livery halls.29 The
Admiralty Registrar in the same paragraph seems to suggest that
jet-skis would never be considered as vessels ‘as they were
--------------------
26
[2005] EWCA Crim 3184.
27
[2012] 2 Lloyds Rep. 37.
28
Id., at paragraph 28.
29
Ibid.
October 2016 What is a Ship? 485

designed or intended for “messing about” on the water.’ Potential

future use seems to be a matter which is not relevant. On the other
hand, past use is relevant.30
Even if a legal definition of ‘vessel’ were to utilise the wide
terminology ‘contrivance capable of being used in navigation,’ a
court is unlikely to adopt an ‘anything which floats’ approach. In
a United States Supreme Court judgment Lozman v. City of
Riviera Beach, Florida,31 the litigation related as to whether or not
a floating home, which was not self-propelled, should be
considered to fall within the terms of the definition of vessel in
terms of 1 U.S.C. §3 which defined a ‘vessel’ as including ‘every
description of watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on water.’
Lozman’s artificial contrivance was described by Judge Breyer in
the following words:

But for the fact that it floats, nothing about Lozman’s home
suggests that it was designed to any practical degree to transport
persons or things over water. It had no rudder or other steering
mechanism . . . Its hull was unraked, and it had a rectangular bottom
10 inches below the water. It had no special capacity to generate or
store electricity but could obtain that utility only through ongoing
connection with the land . . . Its small rooms looked like ordinary
non-maritime living quarters. And those inside those rooms looked
out upon the world, not through watertight portholes, but through
French doors or ordinary windows . . . . Lozman’s home was able to
travel over water only by being towed. Prior to its arrest, that
home’s travel by tow over water took place on only four occasions
over a period of seven years . . . And when the home was towed a
significant distance in 2006, the towing company had a second boat
follow behind to prevent the home from swinging dangerously from
side to side . . . The home has no feature that might suggest a design
to transport over water anything other than its own furnishings and

--------------------
30
See, The Sea Eagle, [2012] 2 Lloyd’s Rep. 37 at paragraph 19, where the
judgment of Lord Gorell in the case St John Pilot Commissioners v. Cumberland
Railway and Coal, [1910] AC 208 is referred to.
31
Lozman v. City of Riviera Beach, Florida, 568 U.S. ___ (2013) (majority
decision).

485
486 Journal of Maritime Law & Commerce Vol. 47, No.4

related personal effects. In a word, we can find nothing about the

home that could lead a reasonable observer to consider it designed
to a practical degree for ‘transportation on water.’

Judge Breyer took a practical rather than a theoretical

approach:

. . . in our view a structure does not fall within the scope of this
statutory phrase unless a reasonable observer, looking into the
home’s characteristics and activities, would consider it designed to
a practical degree for carrying people or things over water.

It is probable that a similar approach would be adopted in the

application of the slightly different wording of section 31332 of the
British Merchant Shipping Act 1995 to a floating home. One may
also note that the ‘anything which floats’ approach was not
applied in the recent judgment in the case The Environment
Agency v. Gibbs.33 The dispute related to the definition of ‘vessel’
in Article 2 of the Inland Waterways Order which defined ‘vessel’
as including ‘every description of vessel with or without means of
propulsion of any kind and includes anything constructed or used
to carry persons, goods, plant or machinery, or to be propelled or
moved, on, in or by water.’ The contrivances alleged to be
‘vessels’ were houseboats; a detailed description of the assembly
prior to placing into water is provided in paragraph 1434 of the law
report. After towage to their allocated place in the marina, these
contrivances were held in place via a system of embedded poles
together with chains and anchors. The houseboats were then
connected to the water, sewage and electricity systems. It was
held that these houseboats did not constitute ‘vessels.’ In
particular Holroyde J. stated that:

To my mind, the word ‘vessel’ in its ordinary use means a ship,

boat or craft designed or used to carry persons and/or goods across
--------------------
32
Supra, text at fn. 12.
33
[2016] 2 Lloyd’s Rep. 69; [2016] EWHC 843 (Admin). This was an appeal by
way of case stated from the Crown Court.
34
Per Lindblom LJ.
October 2016 What is a Ship? 487

water. The word connotes not merely something which floats, or

something which floats and upon which persons and/or goods may
be supported; it connotes something which is designed or used to
convey persons and/or goods across water, and for that reason is
capable of being directed to its intended destination.35

On the other hand, In Chelsea Yacht and Boat Co. Ltd v.

Pope,36 a houseboat was held not to be part of the land for the
purposes of the Housing Act 1988, and Tuckey LJ was of the
view that ‘it is common sense that a boat on a river is not part of
the land. A boat, albeit one used as a home, is not of the same
genus as real property.’37
Similarly in The Craighall,38 a landing stage described as ‘a
huge floating structure intended to be a permanent structure and
stationary, except in one respect, namely, that, for the convenience
of passengers, it has the power of rising and falling with the water .
. . [o]therwise . . . absolutely fixed’39 was held not to be a vessel for
the purposes of the Rules of the Supreme Court, 1883.40
There is no requirement for self-propulsion or self-direction for
a craft to be considered as vessel for the purposes of the Merchant
Shipping Act 1995 and its predecessors. In The Mudlark,41 a
dredger (sea-going hopper barge) with no autonomous means of
propulsion, i.e. other than by way of tugs, was held to be a vessel
with the right to limit liability. Similar decisions were reached in

--------------------
35
Loc. cit., at §82, emphasis added.
36
[2000] 1 W.L.R. 1941 (Court of Appeal).
37
[2000] 1 W.L.R. 1941, p. 1946.
38
[1910] P. 207 (Court of Appeal).
39
Per Fletcher Moulton L.J., [1910] P. 210 at 212.
40
Order XIX, r. 28, Rule 28: “In actions in any division for damage by collision
between vessels, unless the court or a judge shall otherwise order, the solicitor for the
plaintiff shall, within seven days after the commencement of the action, and the
solicitor for the defendant shall, within seven days after appearance, and before any
pleading is delivered, file with the registrar, master, or other proper officer, as the case
may be, a document to be called a preliminary act . . . and which shall contain a
statement of the following particulars: “(a) the names of the vessels which came into
collision and the names of their masters; (b) . . . .”
41
[1911] P. 116.

487
488 Journal of Maritime Law & Commerce Vol. 47, No.4

and The Lighter (No. 3)42 and The Harlow.43 Newly launched
vessels create specific definitional problems of their own, but the
lack of self-propulsion and self-direction is not a bar to such craft
being deemed to be a vessel: this has been borne out by various
decisions including The St Machar,44 in relation to a just launched
new build. According to Lord Carmont:

I am of the opinion that the Gwenthills was being used in navigation

at the collision took place. She was waterborne at the time, and I
cannot deny to her the character of a vessel merely because she was
not capable of self-propulsion as was suggested, or because she was
incapable of self-direction, on the assumption that she had no
rudder.45

III
MARINE INSURANCE

Ability to navigate and a hollow structure, however, were held

insufficient on their own to give a craft the character of a vessel
for the purposes of a collision liability clause (in a marine
insurance contract) which provides for indemnification of the
insured owner with respect to liabilities arising as a result of a
collision ‘with any other ship or vessel.’ In Polpen Shipping v.
Commercial Union,46 the issue related to whether a flying boat
constituted a vessel when it was damaged in Falmouth Harbour by
the Polperro which had dragged its anchor. Despite the fact that
the craft in question had the attributes of a flying boat rather than

--------------------
42
[1902] 18 T.L.R. 322.
43
[1922] P. 175.
44
(1939) 65 LL. L. Rep. 119 (Court of Session, Scotland). See also, The
Andalusian (No. 2) [(1877) LR 3PD 182] where Sir Robert Phillimore denied the right
to limitation of liability to a newly built craft which had damaged a vessel at launching
not on the grounds that she was not a vessel but rather on the grounds that the right
accrued to a British registered ship under the 1854 Merchant Shipping Act.
45
Per Lord Carmont, at (1939) 65 Ll. L. Rep. 125.
46
(1943) 74 Ll. L. Rep. 157.
October 2016 What is a Ship? 489

a seaplane,47 it was held by the court of first instance that the

policy wording ‘ship or vessel’ did not include a flying boat as
‘ability to navigate’ is only ‘incidental to its real work’ i.e.
flying.48 A flying boat undoubtedly regularly navigates in water to
take off and land, but this part of its work is not its primary
purpose. It is not clear from a reading of the judgment whether the
flying boat was anchored or moving in contact with the water at
the time of the incident; the actual use at the time of the incident
is not taken into account by the judge. In Merchants Marine
Insurance v. North of England P & I,49 the Court of Appeal
addressed the issue as to whether a floating crane was a ship or a
vessel for the purpose of an exclusion in a Protection and
Indemnity Rulebook; according to Lord Justice Bankes, who gave
the leading judgment, the structure as well as past and future use
of the floating crane are relevant;50 it was held that the floating
crane was not a ship or vessel.51 The approach taken by the
adjudicator in such cases will in practice be relevant as to which
insurer is likely to pick up the obligation of indemnification, i.e.
whether it is the hull insurer providing coverage in whole or in
part for collision liability, or whether it is the Protection and
Indemnity (P & I) Club in whole or in part as the general liability
insurer.
Also in the context of the collision liability clause, one comes
across the issue as to whether a sunken vessel constitutes a vessel
or ship. The existence of a reasonable prospect of salving the
sunken vessel is likely to determine whether or not the sunken

--------------------
47
The differences are highlighted by Judge Atkinson in his judgment at (1943) 74
Ll. L. Rep. 158, column 2.
48
(1943) 74 Ll. L. Rep. 157, at 161.
49
(1926) 26 Ll. L. Rep. 201.
50
(1926) 26 Ll. L. Rep. 201 at 202.
51
One must note however that the owners of the Titan, a floating crane adrift,
(according to Lord Justice Bankes [(1926) 26 Ll. L. Rep. 201 at 202] differently
constructed and possessing a different life history to the one in the 1926 Merchant
Marine judgment), were allowed to limit liability ‘the claim being unopposed.’ (1923)
14 LL. L. Rep. 484 at 485.

489
490 Journal of Maritime Law & Commerce Vol. 47, No.4

craft is a vessel or a wreck.52 Temporary loss of the ability to

navigate does not deprive a sunken craft from its status as a vessel
for the purposes of the collision liability clause. Again, in practice
the issue is likely to be whether the obligation of indemnity is one
for the hull underwriter or one for the Protection and indemnity
Club.

IV
THE CLC 1992 / FUND CONVENTION 1992
DEFINITION OF ‘SHIP’

As indicated in the introductory part of this article, the

definition of ‘ship’ in the 1969/1971 versions of these two
Conventions defines a ship on the basis of the determining factor
that the said craft is actually carrying oil in bulk as cargo at the
time of the incident; that specific definition was a clear one and
avoided the problems associated with convoluted wording in an
earlier draft.53 The upgraded definition in the 1992 versions
unfortunately largely overlooks the general requirement of ‘actual
carrying of oil in bulk’ and it seems very difficult, if not
impossible, to argue that a purposive interpretation of the
Convention is likely to insist on the requirement of actual carriage

--------------------
52
See Lambeth R.J., TEMPLEMAN ON MARINE INSURANCE – ITS PRINCIPLES AND
PRACTICE, 401, (6th Ed., Pitman Publishing, London, 1986). This view is supported by
the statement of Mr Justice Greer in Pelton SS v. North of England P & I, to the effect
that: “Just as a man may be moribund without ceasing to be a man if the doctors are
hopeful that they will be able to secure his recovery by treatment, so I think a ship may
remain a ship or vessel even though she be damaged and incapable of being navigated,
if she is in such a position as would induce a reasonably minded owner to continue
operations of salvage; and if so she would in the ordinary use of the English language
be still described as a ship or vessel though described as one which was in serious
danger of ceasing to be a ship or vessel.” 1925 22 LL. L. Rep. 510 at 512. A limited
definition of ‘wreck’ can be found in section 510 of the 1894 Merchant Shipping Act
1894 (reproduced in section 255 of the Merchant Shipping Act 1995) which provides
that ‘wreck’ “includes jetsam, flotsam, lagan and derelict found in or on the shores of
the sea or any tidal water.”
53
See IMCO, Official Records of the International Conference on Marine
Pollution Damage 1969, at pp. 442 et seq.
October 2016 What is a Ship? 491

other than in the limited application of the last part of the

definition, i.e. in relation to combination carriers. Articles 2(1)
and 2(3) of the CLC and Fund Conventions 1992 Protocol define
‘ship’ as meaning ‘any sea-going vessel and seaborne craft of any
type whatsoever constructed or adapted for the carriage of oil in
bulk as cargo, provided that a ship capable of carrying oil and
other cargoes shall be regarded as a ship only when it is actually
carrying oil in bulk as cargo and during any voyage following
such carriage unless it is proved that it has no residues of such
carriage of oil in bulk aboard.’
The International Oil Pollution Compensations Funds (IOPC
Funds) have been at the cutting edge of discussions relating to the
definition of a ship for the purposes of the CLC 1992/Fund
Conventions 1992, particularly in relation to floating storage and
offloading units (FSOs) and Floating Production storage and
offloading units. A legal opinion on the construction of the term
‘ship’ by Professor Vaughan Lowe QC who was engaged by the
Director of the IOPC Funds is available in IOPC Funds
documentation.54 There are various types of FSOs, in particular
some with their own motive power and some without. FSOs
without motive power can only be regarded as ships ‘if they are or
about to be under tow.’55 If they are under tow, they should be
considered as vessels as tug and tow should be considered as one
unit. This raises the difficulty of ownership of the ‘vessel’ if tug
and tow are in different ownership. The reference in the legal
opinion to ‘about to be under tow’ raises the further difficulty of
the point in time when carriage commences and storage ends.
Another related issue is the difficulty created as to whether
tankers utilised for the mobile storage of oil constitute vessels—
this is the so-called mother-ship problem. Such mother ships
anchor for varying periods of time, and may well engage in slow
steaming and engage in ship-to-ship transfer operations when a
buyer is found for the oil. An IOPC Director’s Note dated 14

--------------------
54
IOPC/OCT11/4/4, Annex 1.
55
IOPC Funds documentation: IOPC/OCT11/4/4 (14th September 2011, Annex 1,
paragraph 120).

491
492 Journal of Maritime Law & Commerce Vol. 47, No.4

September 2011,56 states that such ships are within the definition
of ‘ship’ ‘because they are in the course of a voyage carrying oil
as cargo, which they would continue after the STS transfer.’57
However the IOPC Funds Director proceeds to state in the next
paragraph58 that ‘the legal opinion also states that it is within the
discretion of the Member States to decide, if they so wish, the
appropriate time beyond which it would not be reasonable to say
that a vessel remains on a voyage, for the carriage of oil by sea as
cargo, and thus to deprive a vessel of its character as a ‘ship’ for
CLC purposes...’ On this last point, it is submitted with respect by
the author that there is no legal basis for this view under the 1992
Conventions which largely did away with the 1969/1971
requirement for a Convention ‘ship’ to be actually carrying oil in
bulk as cargo. It is furthermore submitted that a vessel constructed
or adapted for the carriage of oil in bulk as cargo should be
considered a CLC ship, irrespective of its actual use as a storage
unit as long as the vessel is seaborne and seagoing. Actual
carrying of oil is a requirement only for the application of the
second part of CLC 1992 article 1(1) in respect of a combination
carrier, i.e. a ship capable of carrying oil and other cargoes e.g. oil
bulk ore carriers (obo’s); this last part also covers a ballast voyage
in respect of a combination carrier ‘unless it is proved that it has
no residues of such carriage of oil in bulk aboard.’
The term ‘any sea-going vessel and seaborne craft of any type
whatsoever’ raises the issue of the meanings of the words ‘sea-
going’ and ‘seaborne.’ The term ‘seagoing’ was addressed by the
1992 Fund Executive Committee at its 22d Session59 in relation to
an incident on the Volga River. The Victoriya ‘was registered by
the Russian Maritime Register of Shipping for river and sea
navigation and the vessel traded regularly in the Mediterranean,
Black Sea and Black Sea areas.’60 The Executive Committee

--------------------
56
IOPC Fund Documentation IOPC/OCT11/4/4.
57
Loc. cit, at paragraph 3.15.
58
Loc. cit, paragraph 3.16.
59
IOPC Fund Documentation: 92Fund/EXC.22/14 24, 24th October 2003.
60
IOPC Fund Documentation: 92Fund/EXC.22/14 24, 24th October 2003, at
§3.8.8.
October 2016 What is a Ship? 493

records indicate ‘that the vessel had not been adapted or

appropriated for trading exclusively in rivers and that it still
operated regularly as a sea-going vessel.’61 The Executive
Committee decided that the 1992 Conventions were applicable to
this incident.62 An inland water tankship actually operating at sea
will also fall within the definition of ‘seagoing ship or other
seaborne craft.63
It is unfortunate that these IMO Conventions do not address the
issue of oil pollution damage from waterborne mobile storage
facilities. The issue is however addressed in the voluntary
Offshore Pollution Liability Agreement [OPOL]64 which excludes
‘any ship, barge or other craft not being used for the storage of
Oil, commencing at the loading manifold thereof’ from the
definition of ‘Offshore Facility.’65 The manifest intention behind
the OPOL agreement is to provide for remedial measures as a
result of the fact that the IMO Conventions, namely CLC 1992,
Fund Convention 1992, and the Supplementary Fund Protocol of
2003, do not address pollution from offshore facilities pollution.

V
THE INTERNATIONAL CONVENTION RELATING TO
THE ARREST OF SEA-GOING SHIPS 1952

The Arrest Convention 1952 does not provide a definition of

ship or vessel.66 However, the issue as to whether or not an arrest
is being attempted in respect of a ship/vessel has arisen on
numerous occasions. A case in point is the judgment delivered by
the Irish Supreme Court in The Von Rocks.67 The craft in question
--------------------
61
Ibid.
62
IOPC Fund Documentation: 92Fund/EXC.22/14 24, 24th October 2003, at
§3.8.13.
63
IOPC Fund Documentation: 92Fund/EXC.8/8, 6th July 2000, at §4.2.5.
64
Current available text effective as of April 1 2016.
65
OPOL text effective as of April 1 2016, Clause 1(8).
66
Similarly there is no definition of a ship in the 1999 International Convention on
the Arrest of Ships.
67
(1998) 2 Lloyd’s Rep. 198.

493
494 Journal of Maritime Law & Commerce Vol. 47, No.4

was a ‘backhoe dredger, which is primarily used in harbours,

channels or estuaries to deepen the waters at such locations.’68 It
had no means of self-propulsion or self-direction. It lacked the
vessel-associated characteristics of a bow, stern, or possession of
an anchor.69 Dredging was carried out whilst it was jacked-up in
position on the seabed through the use of hydraulically operated
spud legs, which could later be raised to enable towing; an
alternative method of movement would involve dismantling and
transportation.70
The implementation of the Arrest Convention 1952 into Irish
legislation involved the application of a definition section with
words defining ship and vessel in wording identical to that
contained in the amended British 1894 Merchant Shipping Act.
The Court of first instance presided by Judge Barr accepted the
defendant’s argument that the Von Rocks was not a vessel. The
Judge applied the ‘primary/incidental purpose reasoning in marine
insurance flying boat case Polpen v. Commercial Union,71
referred to above, and came to the conclusion that the primary
purpose of the backhoe dredger was that of being a rigid dredging
platform.72 The judgment was however reversed on Appeal to the
Irish Supreme Court; Judge Keane specifically rejected this
argument and came to the conclusion that the statutory definition
was not exhaustive and that a vessel which was not used in
navigation ‘in the conventional sense’ could still fall within the
category of ‘ship.’73 However, one can envisage the difficulty
which may well arise if this type of dredger whilst not being

--------------------
68
Per Barr J., in court of first instance [(1998) (2 Lloyd’s Rep. 198 at 199)].
69
Per Barr, J., in court of first instance [(1998) 2 Lloyd’s Rep. 198 at 199)].
70
2 Lloyd’s Rep. 198 at 202.
71
See text above at fn. 46.
72
[1998] 2 Lloyd’s Rep. 198.
73
[1998] 2 Lloyd’s Rep. 198, at 208. See also Global Marine Drilling & Co. v.
Triton Holdings Ltd (The Sovereign Explorer) [2001] 1 Lloyd’s Rep. 60, where at
page 61 Lord MacFadyen (Scotland Outer Court, Court of Session) refers to earlier
litigation in that case (involving a mobile offshore drilling unit): “A motion for recall
of that arrestment on the basis that Sovereign Explorer is not a ship, and on the basis
that the arrestment was nimious and oppressive, was refused by Lord Marnoch on Nov.
12, 1999”. This point was not addressed at the appellate stage.
October 2016 What is a Ship? 495

navigated is used negligently and damage is caused to third

parties, e.g. through the negligent triggering of dredged explosive.
At that point in time, it would be extremely difficult to treat the
craft as a vessel for the purpose of section 313 of the British
Merchant Shipping Act 1995, as the vessel is not in the act of
being navigated.
However, English Courts may well tend towards the view that
actual use is less important than its capability and design. This
approach may well avoid inconsistency in decisions particularly
in the context of tax legislation; in Perks v. Clark,74 Longmore
L.J. expressed the view that, with a view to achieving a
consistency of approach, it would be unsatisfactory to treat
submersible oil rigs, semi-submersible oil rigs and jack-up rigs
differently.75 However, where the pilings of the structure are
embedded into the seabed or ocean-floor, there will be a very
strong argument that the structure is not a vessel.76

--------------------
74
[2001] 2 Lloyds Rep. 431.
75
“It is not part of the function of this Court to provide a definition of a ship,
watertight or otherwise. It is, however, part of our function to encourage consistency of
approach in fact-finding tribunals. Drilling ships and drilling barges must be ships.
Semi-submersible oil rigs in which drilling operations are carried out while the rig is in
a floating condition, submersible oil rigs in which drilling is carried out when the rig is
resting on the sea bed, and jack-up drilling rigs which, when drilling, have legs resting
on the sea bed (and are thus not subject to the heaving motion of the sea, in the same
way as semi-submersible oil rigs and drilling ships) are all different forms of structure;
it could be said that since the jack-up rigs cannot perform their main function without
their legs being on the sea bed, they should be singled out and should not be regarded
as ships. It would, however, be unsatisfactory if some forms of oil rigs were ships and
others were not. One approach should be that all three forms of oil rig should either be
ships or not ships” (per Longmore LJ at 441).
76
See Schoenbaum, T., ADMIRALTY AND MARITIME LAW, §1.6 (3d Ed., 2001), and
Blanchard v. Engine and Gas Compressor Services, 575 F. 2d 1140, 1140 (5th Cir.
1978).

495
496 Journal of Maritime Law & Commerce Vol. 47, No.4

VI
SHIP UNDER CONSTRUCTION

In the recently reported judgment of the Federal Court of

Australia, Virtu Fast Ferries v. The Ship Cape Leveque,77 a ship
under construction which, unlike that in The Saint Machar78
litigation, had not been launched, was held not to constitute a
‘ship’ for the purpose of in rem proceedings; the applicable
legislation was quite clear that ‘ship’ did not include ‘a vessel
under construction that has not been launched.’79 A requirement
of ‘launching’ can also be found in Part II of Schedule 7
(Convention on Limitation of Liability for Maritime Claims 1976)
of the Merchant Shipping Act 1995, which extends the application
of that Convention to any structure (whether completed or in
course of completion) launched and intended for use in navigation
as a ship or part of a ship.80

VII
THE LONDON SALVAGE CONVENTION 1989

The International Convention on Salvage 198981 provides a

definition in Article 1(b) to the effect that a ‘vessel means any
ship or craft, or any structure capable of navigation.’ It would
appear that capability to navigate attaches to ‘structure’ as distinct
from ‘ship’ or ‘craft.’82 The requirement for any structure to have
capability to navigate raises the issue of whether such capability
should be in existence both before and after the casualty giving
rise to the need for salvage assistance. Probably the better view is

--------------------
77
[2015] 2 Lloyd’s Rep. 222.
78
[1939] 65 LL. L. Rep. 125.
79
[2015] 2 Lloyd’s Rep. 222, at 224.
80
Merchant Shipping Act 1995, Schedule 7, Part II, paragraph 12.
81
London, April, April 28, 1989.
82
See Reeder, J., BRICE ON MARITIME SALVAGE, §1.6 (4th Ed., 2003) (London,
Sweet & Maxwell).
October 2016 What is a Ship? 497

that post-casualty capability is unnecessary.83 Whether a

hovercraft should fall within the definition of vessel is not
addressed in the Salvage Convention, and this particular lacuna is
addressed by Article 8 of the Hovercraft (Application of
Enactments) Order 1972, which puts the hovercraft on a par with
a ship for the purpose of the receipt of the provision of salvage
services.84 It is interesting to note that Article 3 of the Convention
limits the application of the Convention by providing that it ‘shall
not apply to fixed or floating platforms or to mobile offshore
drilling units when such platforms or units are on location
engaged in the exploration, exploitation or production of sea-bed
mineral resources.’
Although the Salvage Convention 1989 has gone some way in
dealing with the issue of what can constitute a subject of salvage,
the prior legal position gave rise to a number of instances leading
to litigation. For instance in The Raft of Timber,85 Dr. Lushington,
J., stated that the raft of timber was ‘neither a ship or sea-going
vessel; it is simply a raft of timber’86 therefore it was held not to
be a subject of salvage. In Wells and Another (Paupers) v.
Owners of the Gas Float Whitton No. 2,87 a structure including a
gas cylinder functioning as a navigation beacon which had lost its
moorings was held not to be a subject of salvage. These rulings,
however, must be assessed in the context of the law of maritime
salvage applicable prior to the Salvage Convention 1989, i.e. that
the only subjects of salvage were a ‘ship, her apparel and cargo,
including flotsam, jetsam, and lagan, and the wreck of these and
freight; that the only subject added by statute is life salvage . . .
.’88 A different conclusion may well be reached under the modern
law of maritime salvage as a raft of timber may, in the right
circumstances, be a ‘structure capable of navigation’ under
Article 1(b) of the Salvage Convention, and the Gas Float

--------------------
83
Id. at §3.09.
84
Id. at §3.21.
85
166 E.R. 749 (1844).
86
166 E.R. 749, at 751.
87
[1897] A.C. 337 [House of Lords].
88
[1896] P. 42, CA at p. 63 per Lord Esher M.R.

497
498 Journal of Maritime Law & Commerce Vol. 47, No.4

Whitton may, also in the right circumstances, constitute ‘property

not permanently and intentionally attached to the shoreline’
within Article 1(c) of the said Convention.

VIII
‘SEAGOING’ VESSEL

Some statutes refer to a seagoing vessel, and this would

exclude certain vessels. In R. v. Goodwin, Lord Phillips did not
provide an answer as to whether ‘a ship which remains within
coastal waters is or is not a seagoing vessel.’89 In The Sea Eagle,90
the court decided that the rigid inflatable craft in question was
‘seagoing’ for the purposes of the Athens Convention 1974 on the
basis that the trip in question was in waters classified as ‘sea’ in
terms of a Merchant Shipping Notice (MSN 1776).91 A distinction
was made in that case between the issue as to whether a
contrivance is a ‘ship’ and as to whether she was ‘seagoing.’
Seagoing went beyond ‘used in navigation’ and it is thus further
necessary ‘to consider the actual use to which the vessel is being
put in the context of the claim being brought against her.’92 The
Admiralty Registrar considered the case of Salt Union v. Wood;93
in that case Lord Coleridge had stated,

I cannot conceive anything more likely to lead to confusion and

difficulty than if we were to give a construction to the word “sea-
going,” which would involve the magistrates entertaining a variety
of considerations - such as whether the ship might go to sea, or
might be sent to sea, or was capable of going to sea - and would
involve their deciding whether those conditions precedent to the
exercise of their jurisdiction were made out. It is a simple
proposition to hold that a sea-going ship means a ship which does
go to sea. It is not disputed that this ship does not go to sea. She is
--------------------
89
[2006] 1 Lloyd’s Rep. 432, at para. 43.
90
[2012] 2 Lloyd’s Rep. 37.
91
See [2006] 1 Lloyd’s Rep. 432, at para. 10–15.
92
[2012] 2 Lloyd’s Rep. 37 at paragraph 31.
93
[1893] 1 QB 370.
October 2016 What is a Ship? 499

one of a line of ships which conduct traffic along a river to a point

in the Mersey, where they are met by, and transfer their cargo to,
ocean-going ships. She cannot, to my mind, be said to be a sea-
going ship. No doubt she could go to sea; but she does not go.94

IX
CONCLUSION

Case-law relating to differently worded definitions has

struggled and probably failed to come up with future-proof literal
or other interpretations which can convince a layman as to the
precise meaning of the terms ‘vessel’ and ‘ship.’ Undoubtedly
new ‘contrivances’ will continue to be added to the list of items
which are popularly called vessels or ships, and some legal
definitions will be altered and new ones created; legislators,
national and international, usually lag behind an industry focussed
on innovation, thereby providing a playing field for litigation
lawyers. If ever any proof were needed that, in the words of an
eminent Roman jurist, every definition in law is dangerous,95 one
need look no further than the travails of the legal profession and
the judiciary in defining a ‘vessel’ and a ‘ship.’

--------------------
94
[1893] 1 QB 370, at 374.
95
Lucius Iavolenus Priscus: “Omnis definition in iure civili periculosa est; parum
est enim, ut non subverti posset.” (Dig. 50.17.202; Iavolenus 11 epist.).

499