A fisherman who claims he was trapped in an unseaworthy and dangerous boat as it sank is entitled to judgment in his High Court action for damages unless a defence to his case is entered within a month.
Aidan McNally, who is also an author from north Dublin, is suing Ocean Well Ltd, registered owner of the boat that sank, the MV Amethyst, and Ocean Dragon Ltd, which bought the boat’s entire catch for use in its seafood processing business, for onward sale in Asia.
He has also sued naturalised Irish citizen Bing Liang Xia, originally from China, a director of both companies. Bing also owns 100 per cent of Ocean Well’s share capital and 50 per cent of Ocean Dragon.
McNally claims that on September 17th, 2022, while acting as skipper of the Amethyst, it capsized and sank.
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He claims the sinking was due to the unsafe, dangerous and unseaworthy condition of the boat.
He also says that when it capsized, he was thrown around the wheelhouse and became trapped in the boat as it sank beneath the waterline. He then managed to get free and swam to safety.
He claims that he has suffered physical and psychiatric injuries as a result.
The defendants deny the claims.
McNally sought judgment in default against the defendants after they failed to lodge a defence. Two of the defendants, Bing and Ocean Dragon, then applied to have his case struck out as failing to disclose a statable cause of action, which was bound to fail and therefore an abuse of process.
Judge Anthony Barr granted judgment to McNally against the defendants unless they file their defence within four weeks.
If that is done, they will still have to pay the costs of McNally for making his judgment in default application although there will be a stay on paying them until the entire case is determined, the judge said.
He refused Bing’s and Ocean Dragon’s application to strike out the proceedings.
The judge said Ocean Dragon submitted that it has no involvement in the ownership or control of the Amethyst and no contractual relationship with McNally.
It was also submitted that Bing and Ocean Dragon had no responsibility or liability for the repair, maintenance or control of the ship and liability rested with Ocean Well, as owner of the vessel.
McNally argued, among other things, that the reality was that Bing was operating through two companies, but it was, in effect, one single entity and therefore his contract was with Bing from whom he took all his directions.
The court also heard that about a month after the sinking, McNally’s solicitor sought inspection of the vessel, which had been recovered.
A month later, in November 2022, the recovered vessel was sold to a third party. In the meantime, McNally had sought and was granted a court order allowing inspection of the boat to take place.
It was another year before McNally managed to inspect the boat. It had been completely stripped of most of its equipment, fixtures and fittings, rendering inspection almost useless for the purpose of the case.
The judge said it cannot be said that Bing could never be found to have any liability for the state of the vessel on the day of its sinking. That will be a matter for the trial of the action, he said.
Given the level of ownership and control exercised by Bing over the two companies and the extent of his ownership of those companies, it was arguable that, in reality, McNally was employed by Bing as part of the integrated business model established by him to source, process and sell seafood for the Asian market, he said.
