© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO OWNER’S LIABILITY SECOND LECTURE LIMITATION OF LIABILITY

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Chapter 9 ‘Limitation of Shipowners’ Liability’ Overview: 1.Background 2.The legal application of the global limitation rules (MC chapter 9) a) persons who may invoke the rules; b) categories of claims and corresponding limitation fund; and c) conduct barring a claim 3.The practical application of the global limitation rules 4.Procedural rules

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 1. Background 1.Overview of the limitation of liability regime 2.International instruments concerning global limitation

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 1. Background (cont.) Global limitation instruments: 1.Grotious: unlimited liability is “inequitable and injurious to the interests of trade” 2.International unifying attempts: a) The 1924 Brussels Convention on Limitation of Liability; b) The 1957 Brussels Convention and the 1979 Protocol; and c) The 1976 London Convention and the 1996 Protocol 3. Norway: 1996 Protocol (in terms of the Maritime Code Amendment Act of 17 June 2005 no 88 which entered into force 1 November 2006)

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules: a) persons who may invoke the limitation MC section 171 Identified persons May limit claims against each other (however cf the English position) Catch all group in relation to salvage and wreck removal Also if vicariously liable Cannot evade limitation by pursuing the insurer directly

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules: b) categories of claims and corresponding limitation fund MC section 172 (subject to the limitations in section 173) ‘A right to limit liability in terms of section 175 applies, whatever the basis of liability may be, to claims raised in respect of 1)loss of life or personal injuries or loss of or damage to property if the damage occurred on board or in direct connection with the operation of the ship or salvage; (subject to section 173 no. 5) 2)loss resulting from delay in carriage of goods by sea of cargo, passengers or their luggage; 3)other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship or salvage; 4)measures taken in order to avert or minimize loss for which the person liable may limit his liability in terms of the Act, and further loss caused by such measures.’ (subject to section 173 no. 1) ‘…by a person other than the person liable…’

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules b) categories of claims and corresponding limitation fund (cont.) MC s 172a. ‘The right to limit liability in terms of section 175a will apply to ships above 300 tons, whatever the basis of liability, in respect of claims arising from: 1.raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship; (subject to section 173 no. 1) 2.removal, destruction or the rendering harmless of the cargo of the ship; 3.measures taken in order to avert or minimize loss for which the person liable may limit his liability in terms of the Act, and further loss caused by such measures.’

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules b) categories of claims and corresponding limitation fund (cont.) MC section 173 ‘Claims for which limitation of liability is not available: 1.claims for salvage, general average contribution, or any contractual claim for payment in respect of measures referred to in section 172 no 4 or 172a no 1; 2.claims for oil pollution damage which may be limited according to the special rules regarding oil pollution liability (sections 191 and 207); 3.claims subject to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage; 4.claims for nuclear damage caused by nuclear powered vessel; 5.claims for damage or injury caused to any employee of the persons entitled to limit their liability and whose duties are connected with the vessel or the salvage operation; 6.claims for interest and litigation costs.

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules b) categories of claims and corresponding limitation fund (cont.) MC section 175 ‘The liability for claims based on section 172 are limited as follows: 1.For claims relating to personal injury of the ship’s own passengers the limit of liability is SDR multiplied by the number of passengers that the ship in terms of its certificate is authorised to carry. 2.For other claims relating to personal injury the limit of liability is SDR. For ships with tonnage exceeding tons the limits of liability will increase as follows: for each ton from to tons, with 800 SDR, for each ton from to tons, with 600 SDR, and for each ton from , with 400 SDR.’

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules b) categories of claims and corresponding limitation fund (cont.) MC section 175 (cont.) ‘3. The limits of liability in respect of all other claims, as well as uncovered claims as mentioned in no. 2, is SDR. For ships with tonnage exceeding 2000 tons the limits of liability will increase as follows: for each ton from to tons, with 400 SDR, for each ton from to tons, with 300 SDR, and for each ton from , with 200 SDR.’

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules b) categories of claims and corresponding limitation fund (cont.) MC section 175a. ‘The limit of liability for claims raised in terms of section 172a, is SDR. For ships with tonnage of more than tons the limit of liability is increased as follows: for each ton from to tons with SDR, and for each ton over tons, with 500 SDR.’ Special tonnage calculation rule in relation to salvage: MC section 175 no. 5 (also applies to section 175a.) ‘If salvors do not operate from a ship or only operate out of the salvaged ship, then the limitation limit will be estimated from a tonnage of tons.’

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules b) categories of claims and corresponding limitation fund (cont.) Additional points: 1.Single liability principle Section 172 (also applies to section 172a and section 175 no. 5, salvors): ‘If the liable party is subject to a counter-claim, and claim and counter-claim arises out of the same occurrence, then the limitation will only apply to that part of the claim which exceeds the counter-claim.’ (Compare 1976 convention art 5) 2. ‘Occurrence’ Section 175 no. 4 (also applies to section 175a) ’The limits to liability in no. 1 to 3. [of section 175 and 175a] applies to the aggregate of all claims which arise out of one distinct occasion against the reder, the shipowner, the charterer or the operator, as well as any other person that the above answers for.’

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 2. The legal application of the global limitation rules c) conduct barring a claim MC section 174 and 1976 Convention art 4: ’A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result’

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO 3. The practical application of the global limitation rules: The Green Ålesund

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO The Green Ålesund (cont.) 1.Owner, Green Como of Bergen, did not want to remove wreck or cargo. 2.SFT spent NOK on the operation. 3.Gross tonnage: 2280 tons. Global limitation: Who may limit? Is this a claim for which liability may be limited? What limitation applies?

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Global limitation ceiling in terms of section 175a (with todays SDR value): Liability first 1000 tons: SDR Liability following 1280 tons:(2.000 SDR x 1280 tons) = SDR Global limitation on claims: SDR NOK conversion rate (8.88 on 31 August 2007) = NOK If 1976 Convention with 1996 Protocol applied: Liablity first tons: SDR Liability following 280 tons: (400 SDR x 280 tons) = SDR Global limitation on claims: SDR NOK conversion rate 8,88 = NOK If 1976 Convention applied: Liability first 500 GT: SDR Liability following 1780 tons: (167 SDR x 1780 tons) = SDR Global limitation on claims: SDR NOK conversion rate 8,88 = NOK

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Suggested further reading: For an English summary of the latest amendments to the MC in relation to limitation of liability: Griggs, Williams and Farr Limitation of Liability for Maritime Claims (LLP, 2005, 4ed), library reference 25 GRI, in particular Chapter 32: Lund and Gjelsten ’Norway’ at 343