Torts in Antarctica: Lunn v Antarctic Logistics Centre and Rome II

This blog post was contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.

The case of Lunn v Antarctic Logistics Centre International (Pty) Ltd [2024] EWHC 1662 (KB) involved a British claimant who sustained injuries while working as an aircraft engineer on a Boeing 757 stationed at the Novo Airstrip, Queen Maud Land, Antarctica, operated by the defendant, a South African company. 

The claimant, a British citizen, worked as a self-employed aircraft engineer for Jet Magic Limited, a Malta-based company. His work took him to the Novo Air Base in Queen Maud Land, Antarctica, where he was injured while performing checks on a Boeing 757 stationed on the airstrip. The airstrip was operated by Antarctic Logistics Centre International, a South African company contracted to manage the base under an agreement with the Russian Federation. 

Following his return to the UK, the claimant sought to bring a personal injury claim in England against the South African company, setting the stage for a complex legal debate over jurisdiction and applicable law. 

A key issue was whether the English court was the proper place to hear the case. The defendant argued that South Africa, or possibly Russia or Norway, would be more appropriate forums, given that the Novo Air Base lies in disputed Antarctic territory. However, the court ruled that the claimant’s ongoing symptoms and treatment in England provided sufficient grounds to assert jurisdiction under the forum non conveniens principle. In other words, England was deemed the most suitable forum for the case under the tort gateway test established in Brownlie. 

Once the court accepted jurisdiction, the next question was the law of which country should apply under the Rome II Regulation. This was particularly problematic because, as Antarctica is governed by international treaties, it is not under the control of any one nation. The general rule under Article 4(1) of Rome II is that the law of the country where the damage occurs should apply. However, given the unique status of Antarctica, it was unclear which country’s law, if any, should govern the claim. 

The claimant argued that English law should apply by virtue of the “manifestly closer connection” exception in Article 4(3), which allows the court to apply the law of a country more closely connected to the dispute. Alternatively, the claimant proposed that English law should apply by default, as no specific foreign law had been pleaded by the defendant. His legal team also relied on the “presumption of similarity,” suggesting that, unless proven otherwise, foreign law is presumed to be similar to English law. 

The defendant countered by suggesting Russian law should apply, as the base was operated under a Russian agreement. Alternatively, they argued that South African law was the most relevant, as the aircraft the claimant was working on was based in Cape Town, South Africa. 

In deciding the matter, Judge Webb rejected the defendant’s arguments. The judge noted that attaching too much significance to the location of the aircraft or the base, especially given the claimant’s itinerant work, was problematic. Judge Webb found that neither Russian law under Article 4(1) nor South African law under Article 4(2) of Rome II applied in this case. 

Instead, the court decided to apply English law on a default basis, considering it the most appropriate at this early stage of proceedings. The judge allowed that the defendant could later plead foreign law, but for now, the case would proceed under English law. The ruling emphasised that the claimant’s connection to England—where he resided and received treatment for his injuries—was the most concrete link. 

The case of Lunn v Antarctic Logistics Centre highlights the difficulties of applying traditional legal frameworks, like the Rome II Regulation, to unusual situations. Antarctica, a land with no sovereign state, presents a unique challenge in terms of jurisdiction and applicable law. The case serves as a reminder of how territorial ambiguity can complicate legal proceedings, particularly when traditional jurisdictional rules are stretched to their limits.