Department Information
ENERO FEBRERO MARZO ABRIL MAYO Necesarios
In examining whether or not a shipowner may be e n title d to lim it his l i a b i l i t i e s re su ltin g from the operation o f his vessel. We shall avoid going in to the d e ta ils as fa r as the various conventions are concerned namely the 1957 and 1910 ju s t to mention these few but rath er say th a t owners can always do so in so fa r as, such acts or omissions do not re s u lt from want
o f care or negligence on th e ir p a rt. Therefore the conduct barring lim ita tio n w ill and shall be the personal conduct o f the person li a b le . Nor shall everybody lim it h is/h e r l i a b i l i t y .
NORTHERN FISHING Co. (HULL) LTD. V. EDDOM (1960) 1 Lloyd's Rep. 1
.Where a shipowner seeks to lim it his l i a b i l i t y under Section 503 of the Merchant Shipping A ct, 1894, the burden o f proving th a t the loss or damage occurred without his actual fa u lt or p r iv it y lie s on him.
A tra w le r foundered on an unchartered rock o f f Greenland in fog. Mr. H e lly e r, the jo ing managing d ire c to r of the company which owned her, had fa ile d to n o tify the Master o f two c ir c u la r s , which he had received re la tin g to danger of such rocks in the areas in which would be navigating. The dependants o f the drowned seamen brought an action fo r damages fo r negligence against the company. The company sought to lim it it s l i a b i l i t y under Section 503 of the Merchant Shipping Act 1894 on the ground th at the loss had occurred “without it s actual fa u lt or p r i
v it y " .
Held, by the House o f Lords, th a t the company was lia b le fo r the f u l l amount of the damages. The burden of proving th a t the loss had occurred without t h e ir actual f a u lt or p r iv it y lay on the company and i t had not discharged i t .
a . Persons E n title d to Limit L ia b ili t y :
Although there is s t i l l some confusion and uncer ta in ty as to the persons who may lim it l i a b i l i t y in the event of damages caused by the vessels, there has been great unanimity th a t apart from the ship-
owners and insurers themselves, those involve in the operation of the vessels may also avail themselves of the b e n e fit of lim ita tio n . These may in clu d e, the charterer manager and the operator. Charterers include any type o f ch arterer and thus the demise or (bare boat) c h a rte re r, the time charterer and the voyage c h a rte re r; manager includes a ll persons who are entrusted with the management of a ship, though normally these persons are not personally lia b le since they act as agents on behalf of the owner or operator of the ship; operator is the one who operates the ship: in c e rta in ju ris d ic tio n s e .g . France, I t a l y , the operator (arm ateur, armatore) is only the person who employs the crew and thus is e ith e r the owner or the demise ch arterer of the ship; in other ju ris d ic tio n s the concept is wider and may include the time c h a rte re r.
b. Claims Subject to L im itatio n :
The claims subject to lim ita tio n are s u b s ta n tia lly the same - be i t in the 1976 Convention on L im ita tio n of L i a b ili t y fo r Maritime Claims, or the d ra ft of the "Comite Maritime In te rn a tio n a le ". Neverthe le s s , we w ill b r ie f ly analysed them below with some minor references to those set out in the 1957 Con vention.
i . Claims in respect o f loss of l i f e or personal in ju ry or loss o f or damage to property ( i n cluding damage to harbour works, basins and waterways and aids to n a v ig a tio n ), occurring on board or in d ir e t connecxion with the operation o f the ship or with salvage opera tions and consequential loss resu ltin g th e re from. Sub-paragraphs (a ) and (b) of A rtic le
1, para. 1 o f the 1957 Convention have merged together (except fo r what concerns in frin g e ment o f rig h ts ) by making reference to loss or occurring on board or in d ire c t connexion with with other operation of the ship. These la t t e r words replace the more complicated language of the 1957 Convention whereby the claims re ferred to loss or damage occurring whether on board or in w ater, but where they were caused by any person not on board the ship fo r whose a c t, neglect or d e fa u lt the owner is respon s ib le , lim ita tio n could be involved only i f the a c t, neglect or d e fa u lt occurred in the navigation or management of the ship or in the loading, carriage o f or discharge of it s cargo or in the embarkation, carriage or disembarka tio n o f it s passengers. The lin k now is th a t, irre s p e c tiv e o f whether the loss or damage is caused by a person on board the ship or ashore, the loss or damage must occur in d ire c t connection with the operation o f the ship. I f the owner is l i a b l e , the question whether the loss or damage is due to the a c t, neglect or d e fa u lt of persons onboard or ashore is ir r e le v a n t.
L im itatio n can be invoked not only in respect o f d ire c t physical loss or damage, but also in respect of consequential lo ss. This is now made c le a r by the express reference to conse quential loss re s u ltin g from loss of l i f e or personal in ju ry or loss o f or damage to pro p e rty . The words "loss of or damage to pro perty" are so general to include any type of property. However, express reference to har bour works, basins and waterways is deemed
adviseable.
Claims in respect of r a is in g , removal, destruction or rendering harmless of a ship which is sunk, wrecked, stranded or abondoned, including anything th at is or has been on board such ship.
Limitation of l i a b i l i t y in respect of these claims was already provided both in the 1957 Convention ( A r t i c l e 1, paragraph 1 ( c ) ) . As inthe aforesaid conventions, the 1976 Convention permits States Parties to exclude the application of th is p rovi sion fo r the reason th a t removal of wrecks may be required for safety reasons and state may not be prepared to allow shipowners to l i m i t l i a b i l i t y . Nor w i l l the l a t t e r l i m i t l i a b i l i t y e a s ily as concerns costs incurred in connexion with removal operations o f such cargoes as dangerous cargoes and poisonous substances.
Claims excepted from l i m i t a t i o n .
Added to those excluded in the 1957 Convention claims for salvage, contribution in general average and claims by servants of the shipowner or salvor, claims which are governed by other conventions, i . e . those fo r o i l po llu tio n damage, in respect of which s p ecific reference is made to the 1969 C iv il L ia b i l i t y Convention, and claims for nuclear damage, in respect of which general reference is made to any in tern atio n al convention or national le g is la tio n governing or p roh ibiting lim it a t io n of l i a b i l i t y for nuclear damage.
The p rin c ip le of separate funds fo r personal claims and property claim s, already adopted in the 1957 Convention has been reta in e d . Also is accepted th a t the tonnage is the most p ra c tic a l c r ite rio n fo r determining the lim ita tio n fig u re s .
However, the suggestion o f C .M .I. (Comite Maritime In te rn a tio n a le ) to vary the lim t per ton according to the size o f the ship was accepted and agreed th a t there should be a decreasing sc ale , with a lump sum fig u re fo r ships below 500 tons. The scale is not the same in respect o f personal claims and property claims in th a t fo r the former there are two lim its in respect of the tonnage between 501 and 30,000 tons, v iz . from 501 to 30,000 and from 3001 to 30,000; fo r the l a t t e r on the contrary the lim it per ton is the same.
The manner in which the lim it is calculated is shown in the example which follow s in respect o f personal and property claims against the owner of a tanker of 125.000 6RT (Gross Registered Tons) i . e . a VLCC (Very Large Crude C a rrie r) of about 250,000 D.W.T. (Dead-weight Tons), the lim its being calculated in SDR's i . e . Special Drawing rig h ts and Poincare francs:
Personal Claims SDR's Poincare Francs 1-500 tons 333,000 units 5,000,500 501-3,000 tons (500 X 2,500) 1,250,000 units 18,750,000 3,001-30,000 tons (333 X 27,000) 8,991,000 units 135,000,000 30,001-700,000 tons (250 X 40,000) 10,000,000 units 150,000,000 700,001-125,000 tons (167 X 55,000) 9,185,000 units 29,759,000 units 137.500.000 446.250.000 Property Claims SDR's Poincare Francs 1-500 tons 167,000 units 2,500,000 501-30,000 tons (167 X 29,500) 4,926,500 units 73,750,000 30,001-70,000 tons (125 X 40,000) 5,000,000 units 74,000,000 70,001-125,000 tons (83 X 55,000) 4,565,000 units 14,658,500 units 68,750,000 219,000,000
Note however th a t the follow ing precisions are made:-
1 Poincare franc = 0.0018953 tro y ounce o f gold also