“Haul Before You Cross”: A New Irish Admiralty Benchmark on Fishermen’s Duties to Subsea Cables and Cost‑of‑Repair Damages

Introduction

In Virgin Media Wholesale Ltd v Owners and All Persons Claiming an Interest in the Lida Suzanna [2025] IEHC 493, the High Court (Admiralty) delivered a comprehensive judgment on liability for damage to a subsea fibre‑optic cable, the quantification of resulting loss, and several procedural and evidential issues often encountered in complex commercial litigation. The case concerned the 1998 Sirius South cable running between Portmarnock (Ireland) and Lytham St Annes (England), damaged on 26 January 2015 while the Irish-registered scallop trawler Lida Suzanna was fishing in the Irish Sea.

The owners of the Lida Suzanna accepted they were fishing in the area but denied causation and liability. They put the plaintiff on strict proof of cable ownership and argued that any loss was not proved to have been suffered by the plaintiff. They further contended that the intersection of fishing rights and cable operations should not render fishermen liable where a cable is not constantly buried and maintained, and alleged contributory negligence for failure to monitor and re-bury the cable.

McDonald J addressed, in sequence: title to sue; whether loss was suffered absent proof the plaintiff paid the repair costs; causation (including the deployment and reliability of AIS evidence); the existence and scope of a duty of care; alleged contributory negligence; and quantum (including apportionment where two separate cable faults were repaired on a single voyage). The judgment also contains notable procedural guidance on late supplementation of evidence in case-managed trials and expert witness obligations.

Summary of the Judgment

• Ownership proved on the balance of probabilities: Although gaps existed in the historical chain of title from the original commissioner (NTL (UK) Group Inc.), the Court accepted that the plaintiff was the owner by 2006/2007, based on its fixed asset register (Oracle system), corroborating financial statements of the transferor (NTL National Networks Ltd) and transferee (then Telewest Communications Group Ltd), and consistent internal coding (company code 4800). The Court reconciled seemingly contrary positions taken by Virgin Media Limited (VML) in other UK proceedings by giving effect to a group-wide agency arrangement (MACSO), including undisclosed agency, and held that VML’s prior claims to ownership did not displace the plaintiff’s title.
• Loss established without proof of payment: Applying English authorities (notably Coles v Hetherton; The London Corporation; Dimond v Lovell) and consistent with Irish damages principles, the Court held that the direct loss for damage to a chattel is the diminution in value typically measured by the reasonable cost of repair, suffered when the damage occurs. The plaintiff did not have to prove it actually paid the repair invoice, nor show internal “charge-backs” between group entities.
• Causation proved: Using higher-resolution AIS data (30‑second intervals) and the contemporaneous repair ship records, the Court found the Lida Suzanna snagged the exposed cable with its dredge shortly before the fault alarm at 11:41, causing a break. The distinctive two starboard turns and speed drops after crossing the cable were more consistent with a snagging incident than normal fishing manoeuvres or hauling gear. No other vessel over 12m was in the vicinity; the suggestion of smaller untracked vessels operating within the 37–38m corridor was rejected as implausible and unsafe given dredge tows.
• Duty, breach and liability: Drawing on historic English authorities concerning damage to cables by anchors and modern Irish duty-of-care analysis (Barlow v Minister for Communications), the Court held that trawler operators owe a duty of care to known subsea cables and must take reasonable steps to avoid harm—here, the readily available practice of hauling gear before crossing the cable route. The defendants were negligent in trawling over the cable. Arguments based on “historic fishing rights,” alleged cable installation deficits, and the absence of cable monitoring were rejected.
• No contributory negligence: The cable was appropriately installed and buried (0.6–1.0m in the relevant area) with suitable single armour; industry practice does not require general post-installation monitoring of submarine telecoms cables due to seabed dynamics and the risk of misleading fishermen with stale information. Chart warnings (Admiralty), KIS‑ORCA updates, and awareness campaigns were sufficient.
• Quantum and apportionment: The Court declined to accept the plaintiff’s late-running, unpleaded apportionment model based on “simultaneous repairs” and an asserted share for a separate incident (by MFV Willie Joe) due to lack of evidence. Instead, using the Orange Marine logs, it:
• Calculated fixed time charges (daily rate US$31,647) for the Lida Suzanna repair at 10 days 9 hours = US$328,337.62;
• Pro‑rated fuel and lube (54% of total) = US$68,041.10 + US$1,135.30;
• Disallowed unexplained port charges;
• Allowed adjusted Red Penguin Associates fee for the onboard adviser = £9,000 (10 days rather than 13);
• Total award: US$397,514.02 + £9,000 (euro equivalent), with no pre‑judgment interest (s.22 Courts Act 1981) due to complexity, genuine disputes, and dilatory prosecution.
• Procedural rulings: The Court allowed late supplementation of ownership evidence (calling Ms Egan) given no irreversible evidential prejudice but imposed costs on a legal practitioner and client basis for Day 6, emphasising compliance with case management and discovery obligations. It also deprecated expert report shortcomings and stressed adherence to the Ikarian Reefer duties.

Analysis

Precedents and Authorities Cited and Their Influence

• The Dictator [1892] P 304: Reaffirmed (and conceded) that an action commenced in rem becomes in personam against appearing owners. This underpinned the plaintiff’s ability to pursue personal liability of the owners once they entered an appearance.
• Marsden & Gault, Collisions at Sea (15th ed.) and Brett LJ’s dictum (1882): The Court adopted the orthodox position that national law of tort governs collisions and analogous wrongs at sea; there is no free-standing lex maritima.
• Submarine Telegraph Co v Dickson (1864) 15 CB (NS) 760: Foundational English case: mariners must exercise their rights so as not to injure others’ property (including cables). McDonald J treated this as powerful analogy for fishing, not simply anchoring.
• The Clara Killam (1870) LR 3 A & E 161; The Daphne (1934) 50 Ll L Rep 51: Both support the principle that concurrent users of the sea (ships/cables) must avoid conflict; knowledge from charts matters; negligence may arise despite common local practice.
• Peracoma Inc v Société Telus Communications (2012 FCA 199): Canadian federal maritime law confirmed the duty not to damage underwater cables or pipelines is long-standing and not a “new category” of duty. Cited as persuasive analogy (despite differing facts).
• Barlow v Minister for Communications [2025] IESC 14: The Irish Supreme Court’s structured approach to new or analogous duties (precedent; foreseeability; proximity; just and reasonable). The Court used Barlow to validate extending the submarine cable protection duty to fishing.
• Ikarian Reefer [1993] 2 Lloyd’s Rep 68; Duffy v McGee [2022] IECA 254: Expert duties. The Court criticised gaps in AIS analysis and failure to flag data shortcomings, using these authorities to evaluate expert reliability.
• Dimond v Lovell [2002] 1 AC 384; The London Corporation [1935] P 70; Coles v Hetherton [2013] EWCA Civ 1704: Damages for chattels: direct loss equals reasonable cost of repair, suffered upon damage. Applied to hold that the plaintiff need not prove it paid the invoices nor internal recharge entries.
• Munnelly v Calcon [1978] IR 387: Distinguished (real property/restoration vs chattels). The Court found the English chattel line compatible with Irish restitutio principles.
• Reaney v Interlink [2022] 1 IR 213: Criteria for pre‑judgment interest; on these facts, interest refused.
• Sandy Lane Hotel v Times Newspapers [2011] 3 IR 334; B.V. Kennemerland Groep v Montgomery [2000] 1 ILRM 370: Group-company misnaming/substitution context noted, to explain that wrong-plaintiff proceedings sometimes occur and do not displace the true owner’s title.
• Covidien Ltd v Revenue [2025] IECA 75: As analogy for group operating models: centralised management and cross-entity service provision can be legitimate and common.

Legal Reasoning

1) Ownership and Group Structures

The plaintiff did not produce a perfect chain of title from the 1998 Pirelli installation contract for NTL (UK) Group Inc. However, by triangulating first-hand evidence of the fixed asset register (Asset No: NTLH237914, company code 4800), the 2006 financial statements of both transferor and transferee, and corroborative internal screenshots of Oracle ledgers, the Court held that — on the balance of probabilities — the cable had been transferred into and remained an asset of the plaintiff since late 2006/early 2007.

Crucially, the Court reconciled conflicting outward representations of ownership by VML in other contexts through the 2007 MACSO agreement: VML could act as an undisclosed agent for numerous group companies (including the plaintiff, per side letter), transact in its own name, and allocate costs internally, while Clause 3.3(a) preserved property ownership in the principal. That framework explained why VML could sign cable crossing agreements or pay third-party invoices without owning the asset. The Court nonetheless censured the lack of a clear explanation for the English proceedings brought in VML’s name and penalised discovery shortcomings with a practitioner‑and‑client costs order for the late evidence day.

2) Loss Without Proof of Payment

On damages, the Court adopted (and embedded in Irish law) the English “cost of repair as direct loss” rule for damage to chattels. The owner’s loss occurs at the moment of damage and is measured by the reasonable cost to restore the chattel to its pre‑damage condition, whether or not repairs are done or paid for by the owner. The Court found this approach aligned with Irish restitutio principles and not inconsistent with Munnelly v Calcon. This neutralises technical defences based on intra‑group payment flows and “charge‑backs.”

3) Causation and Evidence

Two evidential points were pivotal:

• AIS resolution and integrity: The Court criticised reliance on two‑minute interval data and highlighted the expert’s failure to flag a critical 4‑minute gap around 11:41. When 30‑second interval data were obtained, the plotted track (two sharp starboard turns; marked speed drops) closely aligned with the fault timing recorded at both cable terminals, supporting snagging by the Lida Suzanna. The Court accepted a chart showing “Fault 1 as found” to the port of the track despite some unexplained coordinate labelling anomalies, noting that a >200m length had been dragged from its trench and the initial snag could have occurred nearer the original cable line.
• Repair ship logs: The Orange Marine logs (Pierre de Fermat) recorded precise damage observations at multiple nearby points, consistent with trawl‑type “mauling,” a small section exposed (2–5m), and a longer segment uprooted. This disproved anchor causation and supported a dynamic drag event rather than a single point impact.

4) Duty of Care, Breach, and Contributory Negligence

Applying Barlow’s framework, the Court treated the century‑and‑a‑half of English “cable protection” cases as persuasive analogies. The legally significant features — proximity (concurrent seabed users) and foreseeability (chart-marked cable, KIS‑ORCA data, Admiralty warnings) — were plainly present. It was just and reasonable to impose a duty of care on fishermen to avoid damaging known cables. The practical and proportionate step was to haul gear before crossing the cable route. The Lida Suzanna did not do so, and the observed path contradicted any suggestion of hauling during the critical window (both because of timing and the obvious risk of gear entanglement if turning sharply while hauling).

The contributory negligence defence fell away. The cable had been properly installed and buried, and industry norms do not require continuous monitoring of telecom cables, given seabed mobility and the risk of misleading mariners with out-of-date exposure notices. Instead, the established safety architecture (chart warnings, KIS‑ORCA updates, awareness campaigns) was the appropriate and safer mitigant.

5) Quantum and Apportionment

The Court declined to accept a late, unpleaded “simultaneous repairs” attribution model and any attempt to infer that a different trawler’s settlement (€180,000) matched its true share. Instead, the Court built the award from the ground up:

• Fixed time charges: US$31,647/day for 10.375 days (10 days + 9 hours) = US$328,337.62 (after shaving excessive/unexplained mobilisation/demobilisation hours);
• Variable charges: Fuel (US$126,002.04) and lube (US$2,102.40) pro‑rated at 54% for the attributable time = US$68,041.10 + US$1,135.30;
• Port charges: Disallowed due to lack of evidence;
• Onboard adviser: Red Penguin fee adjusted to £9,000 (10 days), rejecting a 13‑day bill as inconsistent with logs;
• Total: US$397,514.02 + £9,000 (euro equivalent). No interest under s.22 due to complexity/contestation and plaintiff’s delay.

Impact and Significance

A. Admiralty and Maritime Tort in Ireland

• New Irish articulation of a trawler duty of care over cables: The judgment firmly extends longstanding Anglo‑Common‑Law principles (formerly applied to anchoring near cables) to fishing operations, with a concrete operational expectation: haul before crossing. This has immediate behavioural implications for fisheries operating near charted cable routes.
• Choice of law: Reaffirmation that Irish tort law (not an overarching “lex maritima”) governs wrongs at sea, anchoring Irish admiralty practice within the general law of negligence.

B. Evidence and Litigation Practice

• Proof of corporate ownership without perfect chain: Where historical instruments are incomplete, internal fixed asset registers, oracle ledgers, and audited accounts, corroborated by operational agency frameworks (MACSO; undisclosed agency), can meet the balance‑of‑probabilities standard.
• Expert evidence integrity: The Court’s robust application of Ikarian Reefer principles underscores the need to disclose data gaps (here, AIS sampling intervals and missing minutes) and to avoid over‑confident conclusions when the data resolution is inadequate.
• Case management compliance: Late supplementation was permitted (no irreversible evidential prejudice), but the Court imposed practitioner‑and‑client costs to vindicate case management orders and discovery duties. This will be a touchstone for future case‑managed trials seeking to “plug gaps” mid‑hearing.

C. Subsea Cable Operations and Fisheries

• No general duty to survey/monitor telecom cables: The Court accepted industry norms against routine condition surveys for telecom cables in dynamic seabeds given safety and information-staleness risks; instead, rely on charting/KIS‑ORCA/warnings. Power cables within wind farms may be different (regulatory surveys), but that was explicitly not determinative here.
• Shared sea-space governance: The approach harmonises fishing rights and cable operations by allocating a modest operational burden to fishermen that yields substantial risk reduction — and acknowledges the national infrastructure significance of modern telecom cables.

D. Damages for Chattels and Group Payment Flows

• Cost‑of‑repair as direct loss embedded in Irish jurisprudence: The Court’s adoption of Coles v Hetherton and its line removes artificial obstacles in complex corporate groups where a different affiliate pays third‑party invoices. Owners can recover reasonable repair costs without mapping internal recharges.
• Pragmatic quantum construction: Where apportionment arguments are under-evidenced, the Court will default to contemporaneous ship logs and transparent workings; unexplained heads (e.g., port dues) risk disallowance. Claimants should bring primary evidence on time allocation and variable cost drivers if joint repair voyages are relied upon.

Complex Concepts Simplified

• Action in rem vs in personam: An admiralty action “against the ship” (in rem) becomes an action against the owners personally (in personam) when they appear. This matters for enforcement beyond the res (the vessel).
• Undisclosed agency within a group: A group’s trading arm (VML) can contract and interact with third parties in its own name while acting for a principal (the asset-owning affiliate), without transferring ownership. Clauses preserving title prevent “agency transactions” from shifting property within the group.
• AIS (Automatic Identification System): Vessels over 12m transmit position/course/speed. Higher frequency data (e.g., 30‑second points) provide a much more reliable picture than sparse 2‑minute data and are crucial in reconstructing causation.
• OTDR vs actual fault location: Electrical testing (OTDR) estimates distance to a fault along the fibre; it may not match the precise seabed location observed by ROV due to slack/route curvature, so the “Fault Geo Position” can differ from “Fault as Found.”
• Cost‑of‑repair damages for chattels: For movable property, the owner’s direct loss on damage is the reasonable cost of repair — even if another entity paid or repairs are never undertaken. Consequential losses (e.g., loss of use) are different heads.
• Contributory negligence in this context: A defendant alleging the cable owner “should have surveyed/monitored and re‑buried” must prove a duty and breach. On these facts, norms, safety, and practicality argued against any such duty.
• Pre‑judgment interest (s.22 Courts Act 1981): Discretionary; typically refused for complex, heavily contested claims, or where the claimant delayed prosecution.

Key Procedural Lessons

• Late evidence in case‑managed trials: The Court analogised to late pleading amendments: it will examine (a) whether evidential prejudice has crystallised and (b) logistical prejudice. Remedies may include costs on an elevated basis.
• Expert candour: Data gaps, limitations of resolution, and alternative explanations must be put squarely before the Court; overstatement or omission risks undermining credibility.
• Quantum presentation: Where multiple incidents are repaired on a single voyage, a claimant should lead primary evidence (logs, time sheets, cost drivers) to support any apportionment. Unexplained heads (e.g., “port charges”) are vulnerable.

Practical Implications

• For fishing operators: Treat cable routes on charts/KIS‑ORCA as live hazards. Plan hauls and shots to avoid crossing with gear deployed. Expect liability where snagging causes damage, even beyond territorial seas.
• For cable owners: Maintain accurate asset registers and corroborating accounts. MACSO/agency arrangements can be powerful when well-documented. Invest in charting updates and stakeholder engagement; routine seabed monitoring is not mandated by this judgment.
• For insurers: The standard of care and causation pathway are now well-articulated in Ireland; AIS fidelity and repair logs will be central. Wording for fishing liabilities near submarine infrastructure merits review.
• For litigators: Prepare causation cases with high-resolution AIS and repair-ship primary records; address OTDR v “fault as found” discrepancies head‑on; pre‑empt procedural sanctions by early discovery and proper witness selection.

Conclusion

Virgin Media Wholesale v Lida Suzanna sets several important markers in Irish admiralty and tort law. Most notably, it:

• Clarifies that trawler operators owe a duty of care over charted submarine cables and must haul gear before crossing known routes;
• Affirms that a cable owner’s direct loss is the reasonable cost of repair, recoverable without proof the owner paid the invoices;
• Holds that continuous monitoring and re‑burial of submarine telecoms cables is not required, given seabed dynamics and safety/information risks;
• Demonstrates a pragmatic approach to proving ownership in complex corporate groups through internal registers and undisclosed agency, notwithstanding historical inconsistencies;
• Models a disciplined, evidence‑led method for quantum assessment and rejects unexplained or under‑evidenced heads of claim;
• Emphasises the high standards expected of expert evidence and the consequences of non‑compliance with case‑management orders.

Beyond resolving a particular cable strike, the judgment harmonises long‑standing maritime principles with modern subsea infrastructure reality. It encourages operational cooperation between fisheries and cable owners and provides a clear doctrinal foundation for future Irish cases involving shared uses of the seabed, complex group structures, and sophisticated technical evidence.