When analysing the regulatory regime of ship recycling, one finds that both on an international level as well as on an EU regulatory level, instruments have been implemented to ensure a safe recycling practice. The regulation is both aimed at the recycling of waste as well as specifically vis-à-vis end-of-life ships. The regulation however has three main gaps. For non-EU-flagged vessels, one must comply with the import and export rules laid down in the Basel Convention and EU Waste Shipment Regulation if one intends to dispose of the ship. Intent is however a subjective matter and thus hard to prove, which is one of the gaps in the regulatory framework. Another gap is that compliance is further based on the vessel being in the jurisdiction within the scope of the regulations. Thus, any decision to recycle an end-of-life ship can just be made outside the territories of parties to the regulations. Lastly, a gap for EU-flagged vessels is that the vessel can be reflagged prior to recycling which renders the EU Ship Recycling Regulation inapplicable. These gaps have led to the continued use of shipyards using unsafe and non-environmentally friendly practices where an increased profit may be a factor in the choice of the yard.
However, under English Law of Tort, a duty of care exists, which has been used to argue that shipowners (and the ones identified herewith) are under a duty vis-à-vis shipyard workers. Generally, three requirements must be met for a duty of care to exist, namely proximity, foreseeability, and it must be fair, just and reasonable to impose the duty. Additionally, there are three exceptions to the general rule that no liability attaches for omissions. Firstly, an exception exists where there is a special relationship. Secondly, there must be a specific assumption of responsibility which can lead to a duty. Finally, there must be a situation where one party must protect the other from harm caused by third parties. Especially for the third exception, there will however be no general rule to take action to avoid harm from third parties; that is except for in four circumstances. The first is when a special relationship creates an assumption of responsibility. The second is where there is a special relationship based on control. The third exception is when the defendant will be responsible for a state of danger exploited by a third party. Finally, the fourth is when the defendant is responsible for property which may be used by a third party to cause damage.
The duty of care was used in Hamida v Begum to argue that the former ship agent (the Defendant) was liable vis-à-vis a deceased shipyard worker, even though no direct relationship existed between the parties. Thus, it was argued that the Claimant was so closely and directly affected by the acts of the Defendant that the Defendant reasonably ought to have foreseen the damage inflicted upon the Claimant. The final decision in the case is yet to be decided as both the High Court and Appellate Court only decided the case on the notion to strike out the claim based on its fancifulness. However, the remarks made by the courts when deciding the case on its factual assumptions was that it was not so fanciful as to strike out the claim.
The Courts held that the case did not fit well within the principles laid down in Donoghue v Stevenson. However, the courts were more inclined to see that the Claimant had a real prospect of arguing that the Defendant owed a duty of care based on the harm it had created by selling the Vessel, knowing it would end at a shipyard with poor working end environmental standards, which a third party (the Yard) exploited. Even though this would be a duty of care for an omission and the case was a mixture of acts and omissions, one may argue that in such cases, the suggested approach of viewing omissions in a new way, ought to be the way to decide cases going forward. Thus, when dealing with a mixture of acts and omissions, one may query whether the act or omissions made the situation worse, and if answered affirmatively, this could speak in favour of imposing liability.