Jurisprudence on maritime conventions a cmi project to which your assistance is required
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- Limits of liability (Art. 6) Canada
- Limits of liability – Distinct occasion (art. 6.1) Australia
- Loss of the right to limit (Art. 4) England
- France
- Persons entitled to limit (art. 1) France
- Reservations (art. 18) France
- Scope of application (art. 1) France
- Scope of application (Art. 15.1) Greece
Australia Supreme Court of New South Wales, Equity Division, Admiralty List, Newcastle Port Authority v. Pevitt & Ors [2003] NSWSC 888 (1 October 2003, Palmer J) (The summary of facts may be found in the section "General principles-Rules of interpretation") Held by the Supreme Court of New South Wales, that: [1] A domestic court should deal with the question of legal costs of a claim against a limitation fund constituted pursuant to the Convention in accordance with its own domestic law and procedure (at [42]). Italy Court of Appeal of Trieste 28 March 2007, Mediterranea di Navigazione v. ENI - The “Fra Diavolo” (not yet published) On 30th March 1992 the MV “Fra Diavolo” severely damaged a pier in the port of Augusta in Sicily and the owner of the vessel, Mediterranea di Navigazione, commenced limitation proceedings in the Tribunal of Trieste and paid into court the limitation amount. The only claimant in the proceedings was the owner of the pier, ENI S.p.A. who filed a claim in excess of the limitation amount after having brought a claim against the owners in the Tribunal of Catania. After having obtained a judgment in its favour, which under Italian was immediately enforceable even though subject to appeal, ENI claimed payment of the limitation fund in its favour. Mediterranea di Navigazione, after having appealed against the judgment of the Tribunal of Catania, applied to the Tribunal of Trieste for a stay of the limitation proceedings until after delivery of the appeal judgment on the ground that such judgment could reverse the decision of the Tribunal and find that Mediterranea was not liable for the damage caused to the pier. The Tribunal of Trieste rejected the application and Mediterranea appealed to the Court of Appeal of Trieste. Held, by the Court of Appeal of Trieste, that: [1] The owner who by commencing limitation proceedings obtains both the benefit of limiting its debt to the limitation amount and the suspension of the enforcement of any claim against its ship, may not also request the stay of the limitation proceedings until the claim of the only claimant against the fund already allowed by an enforceable judgment, is finally upheld by a judgment not subject to further appeal.* [2] A claim may be enforced against the limitation fund when the claimant has obtained an enforceable judgment in its favour, even though the judgment is still subject to appeal. *Although Italy is not a party to the LLMC Convention and the Italian limitation system differs from that of the LLMC Convention, the issue decided by the Court of Appeal of Trieste may arise in a similar manner under the Convention, article 12 (1) of which provides that the fund shall be distributed among the claimants in proportion of their “established” claims. Limits of liability (Art. 6) Canada Bayside Towing, Ltd. et Al. v. Canadian Pacific Railway Company, et Al. (Canada Federal Court, Trial Division, 28 November 2001), 2002 AMC 243 On June 2, 1999 the starboard side of the barge Rivtow 901, towed by the tug boat Sheena M, down the Fraser River hit the upstream side of the protection pier of the Mission Railway Bridge and then the swing-span itself, dislodging it from its pivot and pushing it in a down-river direction. On September 23, 1999 the owners of the Sheena M, Bayside Towing Ltd., filed a statement of claim seeking, inter alia, a declaration that they were entitled to limit their liability to $ 500,000 plus interest pursuant to section 577(1)(b) of the Canada Shipping Act and an order constituting the limitation fund. On October 28, 1999 Canadian Pacific Railway Company commenced an action in the Canada Federal Court against the owners of the Sheena M and of the barge Rivtow 901 and all others interested in the tug and in the barge claiming general an special damages estimated to be in excess of five million dollars arising out of the navigation, management or operation of the Sheena M and of the Rivtow 901. Canadian Pacific stated that the limitation fund should be based on the combined tonnage of the Sheena M and of the Rivtow 901 since the “flotilla principle” adopted by the Supreme Court of Canada in The Rhône (1993 AMC 1697) is no longer applicable as a consequence of the wider definition of “shipowner” adopted in section 576 of Chapter 6 of the Statutes of Canada, when the 1976 Convention on Limitation of Liability for Maritime Claims was adopted by Canada. Held, by the Federal Court, Trial Division, that: [1] The principle whereby in a tug and tow situation only in circumstances of common ownership of the vessels as well as common causation the calculation of the limit of liability must be based on the global tonnage of the tug and tow has not been altered by the broad definition of “shipowner” in section 576 of Chapter 6 of the Statutes of Canada as amended in 1998, pursuant to which “shipowner” means an owner, charterer, manager or operator of a ship, whether seagoing or not, and includes any other person having an interest in or possession of a ship from and including the launching of it” and, therefore, the limit of liability must be calculated only with reference to the tonnage of the tug where the tow is not owned by the owner of the tug. Limits of liability – Distinct occasion (art. 6.1) Australia StrongWise Ltd. v. Esso Australia Resources Pty Ltd., Federal Court of Australia, 18 March 2010, [2010] FCA 240 On the afternoon of Saturday 13 December 2008 theMV APL Sydney dragged at anchor during a gale in Port Phillip Bay, Melbourne. The outer and inner anchorages of the Bay are separated by an area through which a submarine pipeline ran. The pipeline carried ethane gas at high pressure fromMordialloc on the eastern side to Altona on the western side. These three areas were marked on the Admiralty chart for Melbourne. The chart carried a warning of the location of the pipeline. The ship dragged her anchor to the north east from her original position west of the Fawkner Beacon in the outer anchorage in the Bay. Between 15:44 and 15:45 the vessel’s starboard anchor fouled the pipeline. This arrested the movement of the ship. The pipeline was a 10 inch thick steel pipe coated with concrete and tar. It was buried about 3 metres below the seabed. Shortly after the fouling, at about 15:46, the vessel’s engine was put astern and about one and a half minutes later, stopped. APL Sydney then yawed from side to side in the wind and waves for about 35 minutes before her engine was put ahead at about 16:20. Soon after this, the pipeline ruptured and, then, the engine was stopped. About six minutes later, the engine was put astern. One end of the ruptured pipeline was pulled back towards Mordialloc, dragging it further out of its trench and bending it almost to a right angle before a piece of the pipe broke off, freeing the anchor. On 19 December 2008, the owner of the APL Sydney, Strong Wise Limited, began limitation proceedings under s 25 of the Admiralty Act 1988 (Cth.). The shipowner claimed that it was entitled to limit its liability pursuant to the Limitation of Liability for Maritime Claims Act 1989 (Cth). The latter gives the force of law in Australia to the Convention on Limitation of Liability for Maritime Claims 1976 as amended by its 1996 Protocol. The pipeline was owned by Esso Australia Resources Pty Ltd and BHP Billiton Petroleum (Bass Strait) Pty Ltd. The parties agreed that in four other proceedings in this court other plaintiffs have made claims presently estimated at a total of over $66 million. Article 6(1)(b) of the Convention entitles a shipowner to limit its liability for claims “arising on any distinct occasion”. The case was essentially about the meaning of that expression as used in the Convention. The shipowner argued that the whole episode beginning with the initial fouling and ending on the final separation of the anchor from the pipeline was a single “distinct occasion”. If the shipowner had been correct, then it would have been entitled to establish one limitation fund, comprised of the value of APL Sydney, of about $32 million calculated in accordance with the Convention. Esso and BHP argued against that result. They asserted that there had been more than one distinct occasion in respect of which claims could be made. They asserted that that was because there had been more than one act, neglect or default giving rise to entitlements of persons to bring claims against the ship and shipowner. They contended that in addition to the claims that arose on the occasion of the initial fouling, there had been at least three further “distinct occasions” on which additional claims arose. The four instances on which Esso and BHP relied were: (1) the navigational errors leading to the initial fouling of the pipeline by the anchor around 15:44 to 15:45; (2) the order at 15:46:01 that the ship’s engine go astern. That allegedly caused the pipeline to be pulled further out of its trench for an appreciable distance and bent more; (3) the order at about 16:19:51 that the engine go ahead. That allegedly caused the pipeline to rupture and to further deform together with the loss of a volume of ethane gas; and (4) the order at 16:27:59 that the engine go astern. That allegedly caused the anchor to re-engage with a portion of the severed pipeline on the eastern side, drag it further out of its trench, bending it to almost a right angle before severing about 6 to 7 metres of pipe. Held, by the Federal Court of Australia, that: [1] While the decisions issued in common law jurisdiction and mainly in England may assist in cases where there is ambiguity or be illustrative of the circumstances in which there may be a separation between different acts, neglects or default giving rise to different maritime claims, the meaning of the LLMC Convention must be arrived at from an examination of its text and structure. [2] Pursuant to the Convention a claim arises on a distinct occasion within the meaning of the Convention in the following way. Where a single act, neglect or default of a shipowner places him in such a relationship that, as a matter of commonsense, it is a cause of loss or damage suffered by a third party, that third party will have a claim under art 2 of the Convention. And, such a claim will be caused by an occurrence and, so, will arise on that distinct occasion for the purposes of arts 6, 7, 9 and 11. But where a subsequent act, neglect or default of the same shipowner separately operates to cause different or separately identifiable loss or damage to the same third party, or to others, then a new claim or claims will arise on that later distinct occasion. The latter occasion is distinct because, first there is a new event (the separate act, neglect or default), secondly, there is new loss or damage and thirdly, the new cause is, as a matter of commonsense, not a necessary or inseparable consequence of the earlier act, neglect or default. [3] The Convention provides a very wide protection for shipowners. This is reinforced by the use of the words “arising” and “arise” in connection with the claims that are to be limited to each distinct occasion. The word “arise” is a word of wide connotation and will embrace a variety of circumstances and causes leading up to the identification of “a distinct occasion”. However, the Convention also recognises that there will be circumstances in which more than one distinct occasion will occur from which claims against a shipowner can arise. It will be a question of fact in each case as to whether the particular act, neglect or default said to give rise to “a distinct occasion” has been identified. This is not to encourage the unmeritorious and over analytical dissection of circumstances in each marine casualty in which a shipowner seeks to limit its liability.Where a single act, neglect or default gives rise to or causes a particular incident, such as a single collision with another vessel, a wharf, or even a pipeline, commonsense will say that minute dissection of the circumstances will not lead to identification of more than one “distinct occasion”. [4] There were two distinct occasions that occurred in direct connection with the operation of APL Sydney on the afternoon of 13 December 2008 that gave rise to claims for loss of or damage to property and consequential loss resulting therefrom within the meaning of arts 2(1)(a) and 6(1) of the Convention. The first distinct occasion was the chain of events leading to and immediately following the anchor fouling the pipeline at about 15:44-15:45. The second distinct occasion was the chain of events leading to and immediately following the rupture of the pipeline at about 16:20-16:21. Loss of the right to limit (Art. 4) England Schiffahrts Gesellschaft MS “Mercury Sky” m.b.H. & Co K.G. v. MS Leerort Nth Schiffahrts G.m.b.H. & Co. K.G. – The “Leerort” ((C.A.) [2001] 2 Lloyd’s Rep. 291) On 19 September 1998 the Zim Piraeus, when in the course of entering the harbour of Colombo, collided with the port side of the Leerort, moored at the Jaya Container Terminal, breaching No. 1 hold. The Leerort subsequently flooded and settled on the bottom and her cargo was lost or damaged. As the Zim Piraeus came into the harbour, she was in an automatic remote control mode on her bridge console. When in that mode the engine responded to the telegraph command by means of a computer programme. As the vessel came in at 1209.29, the master gave a half astern order to take the way off the vessel. The engine stopped, but the automatic control system failed to start it in the stern mode. The master order “stop” at 1208.05 and engaged emergency manoeuvring mode at 1208.15 and set half astern five seconds later. The engine started working at 1208.31. However this action failed to avoid the collision. On 14 March 2000 Mr. Justice Sheen, sitting in the Admiralty Court, made an order in the nature of a decree of limitation under which he held that pursuant to the provisions of the Merchant Shipping Act the owners of the Zim Piraeus, Schiffahrts Gesellschaft MS “Mercury Sky” m.b.H. & Co K.G., were entitled to limit their liability. The owners of the Leerort and of part of her cargo, Leerort Schiffahrts G.m.b.H. & Co. K.G., challenged the order of the Judge. Held, by the Court of Appeal, that: [1] Pursuant to article 4 of the LLMC Convention to defeat the right to limit it is necessary to identify the causative act or omission on the part of the a person that caused the loss and that such act or omission was committed to cause such loss, or recklessly with knowledge that such loss would probably result, thereby requiring foresight of the very loss that actually occurs, and not merely of the type of loss that occurs. [2] Where the loss in respect of which a claim is made resulted from a collision between ship A and ship B, the owners of ship A, or cargo in ship A, will only defeat the right to limit liability on the owner of ship B if they prove that the owner of ship B intended that it should collide with ship B (or, alternatively, intended that his ship should collide with another ship, or acted recklessly with the knowledge that it was likely to do so). [3] It is totally absurd to suggest that a 50 second interruption in the operation of the engine, as a consequence of which the collision took place, might be attributable to an act or omission of the owners done with the intention of bringing their ship into a collision, or performed recklessly with knowledge that it was likely to produce this result. France Cour de Cassation 20 February 2001, Groupe des Assurances Nationales – GAN and Others v. Nautiloc and Others – The “Moheli” (2002 DMF 144). (For the summary of facts see section "Constitution of the Fund") Held, by the Cour the Cassation that: [1] In order to decide on the character "inexcusable" of the action of the master of a vessel the Court must establish if, in his capacity as a professional, the master should have been aware that a damage would probably result from his action. Cour d’Appel of Caen 2 October 2001, Captain of the dredger “Johanna Hendrika” and Others v. Pierre Gruel and Others (2001 DMF 981). On 9 May 1991 the dredger Johanna Hendrika in order to carry out dredging operations in the port of Tréport rested on the bottom securing its position by means of a spud poal. During the low tide the dredger slipped slowly towards the quay and damaged small vessels moored alongside the quay. The owners and the hull insurers of such vessels commenced proceedings against the master of the dredger, the owners and the hull insurers in the Tribunal de Commerce of Eu-Le Tréport. By judgment of 21 December 1993 the Tribunal de Commerce held the master and the owners liable. The judgment was affirmed by the Cour d’Appel of Rouen. The Cour d’Appel denied the benefit of the limitation of liability. The decision of the Cour d’Appel was subsequently quashed by the Cour de Cassation with judgment of 20 May 1997 (1997 DMF 976) in respect of the issue of the loss of the right to limit, on the ground that the Cour d’Appel had not given sufficient reasons for the inference that the “faute inexcusable” of the master entailed also that of the owners and remitted the case to the Cour d’Appel of Caen. Held, by the Cour d’Appel of Caen that: [1] The owner of a dredger has committed a “faute inexcusable"* entailing the loss of the right to limit its liability, by having allowed the operation of a dredger whose anchorage system was insufficient in order to prevent the movement of the dredger. * The expression "faute inexcusable" is used in France as a synonym of recklessness with knowledge that damage would probably occur. New Zealand Tasman Orient Line CV v. Alliance Group Limited, Comalco New Zealand Limited and Others - The "Tasman Pioneer" (The High Court of New Zealand, Auckland Registry - [2003] 2 Lloyd's Rep. 713; [2004] 1 NZLR 650 (see the summary of facts in the section "General Principles" - "Rules of Interrpetation" Held, by the High Court of New Zealand, Auckland Registry, that: [1] The right to limit of a sub-time charterer of a vessel is not barred under s85(2) of the New Zealand Maritime Transport Act, worded similarly to art. 4 of the LLMC 1989, in case of loss or damage caused by the negligent navigation by the master. Persons entitled to limit (art. 1) France Cour d’Appel de Paris 17 October 2007, SA Someport Walon and Others v. SNC GE Energy Products and Others (2008 DMF 250) By agreement dated 30 July 1999 GE Energy Products entrusted SA Someport Walon, in its capacity as commissionaire de transport, the carriage to Bangladesh of a gas turbine. Someport Walon negotiated the contract of carriage with Poulsen Shipping as agent of Leisure Shipping and signed a booking note. During the loading operations of the turbine on the m.v. Alemania from a barge , the wire of the vessel’s crane broke and the turbine was severely damaged. GE Energy Products and its insurers, AIC, brought proceedings in the Tribunal de Commerce of Paris against Someport Walon, Poulsen Shipping and Leisure Shipping claiming payment of the damages. By judgment of 30 May 2005 the Tribunal held that Someport Walon was liable for the damage and that Leisure Shipping was in turn bound to indemnify Someport Walon. Someport Walon and Leisure Shipping appealed to the Court of Appeal of Paris and Someport Walon sought to benefit of the limitation fund that had meanwhile been constituted by Leisure Shipping. Held, by the Court of Appeal, that: [1] A commissionaire de transport may not limit its liability under the LLMC Convention since it is not a shipowner, as defined in article 1(1) of the Convention. New Zealand Tasman Orient Line CV v. Alliance Group Limited, Comalco New Zealand Limited and Others - The "Tasman Pioneer" (The High Court of New Zealand, Auckland Registry - unreported) (for the summary of facts see section "Loss of the right to limit") Held, by the High Court of New Zealand, Auckland Registry, that: [1] The sub-time charterers of a vessel come under the definition of "owner" in s84 of the New Zealand Maritime Transport Act, 1994 and as such are entitled to limit their liability. Reservations (art. 18) France Cour de Cassation (Ch.com.) 11 July 2006, Agence Judiciaire du Tresor v. Tunisian Sea Transport Company (2006 DMF 884) Following the loss by the Jerba of 800 logs, her owner, Tunisian Sea Transport Company, invoked the limitation of its liability pursuant to the LLMC Convention and was authorised to constitute a limitation fund. However the Agent Judiciaire du Tresor requested the arrest of the vessel on the ground that France had reserved the right to exclude the application of article 2 paragraphs 1 (d) and (e). The release of the vessel from arrest, that had been refused by the Tribunal de Commerce of Le Havre on the ground that the accident having taken place within French territorial waters, French law of 3 January 1967 applied and pursuant to its art. 59 limitation cannot be invoked in respect of claims of the State, was subsequently granted by the Court d’Appel of Caen. The Court of Appeal found that the LLMC Convention applied also in respect of vessels flying the flag of non-contracting States and that France the reservation invoked by the Government had not actually been made since France had only reserved the right to avail itself in the future of the art.18 of the Convention. Held, by the Cour de Cassation, that: [1] Notwithstanding the ambiguous character in the French language of the words used by France in the instrument of ratification of the LLMC Convention (le République française se reserve le droit d’exclure l’application des alinéas d) et e) du §1 de l’article 2), that statement was not a simple declaration of intent, deprived of any legal value, but a unilateral decision to exclude the application of the above provisions. Scope of application (art. 1) France Tribunal de Commerce of Marseille 19 July 2006, Mutuelles du Mans Assurances IARD v. SAIPEM/Bouygues Offshore SA (2006 DMF 798) The 19th April 1995 the dredger Jean Maria, owned by Bouygues Offshore SA, subsequently renamed SAIPEM SA, collided with a wharf in the yacht harbour of Marines de Cogolin and damages the wharf. On application of Bouygues Offshore the Tribunal de Commerce of Marseilles opened the proceedings for the constitution of the limitation fund under the LLMC Convention. The leading insurer of the Marines de Cogolin, Mutuelles du Mans Assurances IARD, appealed against the order of the Tribunal on the ground that the Hean Maria was not a navire de mer and that, therefore, the LLMC Convention could not apply. Held, by the Tribunal de Commerce of Marseilles, that: [1] A non-self propelled dredger, employed for dredging operations inside harbours, has not the legal nature of a "navire de mer" and, therefore, the LLMC Convention is not applicable. Scope of application (Art. 15.1) Greece Supreme Court (Judgment 869/1999), Titan Ciment S.A. v. Orinoco Navigation Co. – The “Ikariada” In the limitation proceedings commenced by the Owner of the m/v Ikariada of Cypriot flag a dispute arose as to whether limitation should be governed by the law of the flag of the vessel, pursuant to Article 77 § 6a of Greek Law 1892/1990, or by the LLMC Convention, ratified by Greece, pursuant to its Article 15.1. The dispute was brought before the Supreme Court. Held, by the Supreme Court, that: [1] Since pursuant to Article 28 § 1 of the Constitution international conventions ratified by Greece and entered into force form an integral part of the Greek legal system and prevail over domestic rules, Article 77 § 6a of Law 1892/1990, whereby the limitation of liability of the owner is governed by the law of the flag, is no longer in force, Article 15 § 1 of the LLMC Convention 1976 having adopted the rule of the lex fori. [2] Pursuant to Article 15(1) of the LLMC Convention its provisions apply as lex fori, regardless of the lex causae of the claim subject to limitation and of the fact that the person seeking to limit his liability has his habitual residence or principal place of business in a State Party and of the fact that the vessel flies the flag of a State Party or not. Greece has not availed itself of the right granted to States Parties by Article 15(1) and (3). Directory: Uploads Uploads -> 587 Return function, r i(X) r i(0) r i(1) r i(2) r i(3) 1 0 2 4 6 Thermal Station, I 2 0 1 5 6 3 0 3 5 6 10 Uploads -> Department of science and humanities department of mathematics part-a questions and answers Uploads -> The Case Against the nypd’s Quota-Driven ‘Broken Windows’ Policing What Is It? 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