The report in The Times of The European Gateway 1 is intriguingly headed “Collision inquiry verdict not final”, raising the operation of a continuing (if not everlasting) task for the Wreck Commissioner. However, it was not the finality of the “inquiry verdict” which was the subject of the report but the binding effect of the findings in later civil proceedings between the owners of the ships which collided. It arose by way of a preliminary issue in a collision and a limitation action brought against the owner of the European Gateway by the owners of the Speedlink Vanguard.

The collision between the two occurred on 19 December 1982 in the shallow water approaches to Harwich. In the early part of 1983, the owners of the Speedlink Vanguard issued a writ in a collision action. Also in 1983, the Secretary of State for Transport, acting under provisions of the Merchant Shipping Act 1894, ordered first a preliminary inquiry and subsequently (under s. 466) a formal investigation by a wreck commissioner. At the inquiry, held over 35 days and ending in March 1984, the Commissioner was assisted by four assessors. In addition to the Secretary of State, the owners and masters of the ships and cargo interests became parties to the proceedings and were represented at the hearing. The purposes of the investigation were to consider the cause of the collision and the swift sinking of the European Gateway, the lessons to be learned from the casualty and whether the sinking and loss of life “were caused by the wrongful act or default of any person”.

As to this last question, the Formal Investigation concluded that the collision was the fault of the masters of both vessels, with the major cause being the actions of the master of the European Gateway. Following the report of the Formal Investigation, in June 1985, in the pleadings in the collision action and in a limitation action commenced in 1986, the plaintiffs asserted that the defendants were precluded by the doctrine of “issue estoppel” from reopening issues on which Formal Investigation findings had been made. Whether they were so precluded was the issue before Steyn, J. The learned judge took the criteria required to raise issue estoppel from the judgment of Lord Brandon of Oakbrook in The Sennar (No. 2).2 Steyn, J., saw the real issue as being whether the Formal Investigation was a “court of competent jurisdiction” as between the parties before him in respect of the findings made. Steyn, J., referred to the legislative framework applicable to the inquiry and in particular to the Merchant Shipping Act 1894, ss. 466, 475 and 483 and the Shipping Casualties and Appeals and Rehearing Rules 1923.3 In the light of these provisions, the learned judge held that there was no “lis” between the contending owners and that the functions of the Formal Investigation were investigatory and (to a limited