The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi, on October 30, 2015, in the case ‘Alfred Mizzi v Sullivan Maritime Ltd and Short Med Shipping Co. Ltd’, held, among other things, that Sullivan Maritime was liable for damages for having failed to ensure that the place of work was safe and to implement safety precautions for the safety of the workers unloading the cargo of cars on board the vessel Malta Express.

On November 22, 2002, Alfred Mizzi, a port worker, was assisting on board the vessel MV Malta Express to disembark a number of cars on behalf of Sullivan Maritime Ltd. He slipped on some oil, lost his balance and fell down a shaft, which was the height of one floor.

The port worker tried to hold on to some safety ropes but these were not secured and there were also a number of wires and ropes strewn on the floor.

As a result of his fall, Mizzi suffered a permanent disability of 20 per cent and was out of work from the day of the accident until January 3, 2005.

Faced with this situation, Mizzi filed an action for damages against Sullivan Maritime Ltd, as well as against the owner of the vessel, Short Med Shipping Co. Ltd. He asked the court:

• To declare that Sullivan Maritime and Short Med Shipping or any one of them were responsible for the incident solely owing to their negligence and lack of observance of safety regulations at his place of work;

• To liquidate the damages; and

• To condemn the defendant companies or any one of them to pay him damages which it liquidated.

Short Med Shipping, in reply, pleaded that it was not the legitimate defendant. It said that at the time of the incident it did not operate the vessel. It had signed a charter party with a foreign company and the vessel was in possession of this foreign company. Nor did it have any contractual relations with Mizzi.

Sullivan Maritime also contested the legal action against it. It submitted that it was not responsible as the legitimate defendant. Allegedly, at the time of the incident, it only acted as agent of the charterer of the vessel Malta Express and that it did not have any contractual relations with Mizzi and should be freed from the proceedings.

Sullivan Maritime claimed that theincident was caused owing to Mizzi’s negligence and that of his co-workers.

It added that, if at all, any responsibility attributed to it should be quantified by medical experts appointed by the court and it should also be limited in terms of article 347 et seq of chapter 234 of the Laws of Malta.

On November 2, 2011, the First Hall of the Civil Court liberated Short Med Shipping Co. Ltd from these proceedings. It held Sullivan Maritime, however, to blame for the incident and damages which it quantified as €139,260. Sullivan Maritime Ltd was condemned to pay the damages.

The court said that there was no evidence to show that Mizzi had contributed to the incident of November 22, 2002. Mizzi was wearing protective gear at the time of the incident.

Sullivan Maritime was responsible to ensure that its workers could carry out their work without risk and danger. It should have ensured that the safety ropes were properly secured and that there was no oil spillage on the ground

The court maintained that Sullivan Maritime was responsible as employer to provide a safe workplace. It was useless to have safety ropes which were not secure.

Short Med Shipping was not responsible, pointed out the court, as it did not have possession of the vessel.

Although it was true that Sullivan Maritime had no contractual relations with Mizzi, however, its responsibility did not arise out of contractual relations. Sullivan Maritime had control of the vessel and its operations insofar as the vessel was in port.

Sullivan Maritime was responsible to ensure that its workers can carry out their work without risk and danger. It should have ensured that the safety ropes were properly secured and that there was no oil spillage on the ground.

The first court maintained that Sullivan Maritime could not benefit from limited responsibility under the Merchant Shipping Act once it was in effective control of the vessel and once it failedto provide its workers with a safe working environment.

In determining the quantum of the damages, the court considered that in the period between November 22, 2002, and January 3, 2005, Mizzi made a loss of €80,000. In view of his age when he returned to work (55 years), it applied a multiplier of eight years, an annual income of €30,000 increased slightly in view of any possible wage increase and a disability of 20 per cent. No deductions were given.

Aggrieved by the decision of the first court, both parties entered an appeal.

On the one hand, Sullivan Maritime contested its responsibility, while Mizzi petitioned for greater compensation and sought that the other defendant be held jointly responsible.

Responsibility of agent: The Court of Appeal said that Sullivan Maritime as agent had to act as a bonus pater familias in carrying out its mandate. If an agent failed in his duty, he was responsible for damages: ‘Calleja noe et v Ellul, Sullivan noe’ (PA) dated December 15, 2004. If an agent mismanaged, it was to be presumed that his principal would not have instructed him to act negligently – he would be personally responsible for the incident.

In this case, Sullivan Maritime Ltd as agent had to handle the operation of unloading the cars from the vessel and had to engage persons to discharge the operation.

Sullivan Maritime was responsible for the safety of the workers. Its responsibility was not based on employer/employee relationships: re ‘Mallia v Cortis noe’, dated October 7, 1996, and ‘Spiteri v Malta Freeport Terminals Ltd’, dated October 5, 2007.

It was the duty of the employer to inspect the place of work, evaluate the risks, remove the risks and, if the owner does not cooperate, refuse to carry out the works: ‘Scicluna v TN Waterproofing Ltd’, dated April 20, 2007 (PA).

It was the duty of the employer to provide a safe place of work: ‘Bugeja v Montanaro Gauci’, dated May 14, 2004.

The court was of the opinion that Sullivan Maritime failed to ensure that the place of work was safe and to implement safety precautions for the safety of the workers unloading the cargo of cars: there was oil spillage on the ground, the barriers were too low and the shaft was unsafe. There were a lot of wires and ropes on the ground.

It was only after the incident that Sullivan Maritime started to take safety measures but this did not serve to reduceits responsibility.

The Court of Appeal dismissed Sullivan Maritime’s appeal. As the agent of the vessel, it had a duty to act as bonus pater familias. The court said the company failed in its duty by ordering the commencement of the work without first verifying whether the place was safe and free from danger.

The court did not consider the owner Short Med Shipping to be responsible. The owner was not in control of the vessel at the time of the incident and nor did it result that the vessel was not seaworthy.

The immediate cause of the incident could not be attributed to any failure of the owner of the vessel. The incident arose owing to the lack of diligence of the person in control of the ship, pointed out the court.

In addition, the Court of Appeal considered that a multiplier of eight was not unreasonable in the light of the chances and changes of life. Although it was possible for Mizzi to keep his licence, it could not be assumed that he would work beyond the age of 61 years.

For these reasons, on October 30, 2015, the Court of Appeal rejected both appeals and confirmed in the decision of the First Hall of the Civil Court, with legal interests.

Dr Karl Grech Orr is a partner at Ganado Adovates.