INTRODUCTION Contributed by: Yoav Harris, John Harris (1940-2023) and Domiana Abboud, Harris & Co. Shipping & Maritime Law
erty”, the Master is no longer liable for the damages caused by the slave (George Long, Noxalis Actio ; in Smith’s Dictionary , 1875, page 807). According to Nicolai Lagoni in Maritime Transport (Global Limitation of Liability) , this principle is the legal origin of limitation of liability in shipping, which appeared in Consolato del Mar (1494), the French Ordinance of 1861 and the English Responsibility of Shipowners Act 1733, limit - ing the ship-owner’s liability up to the value of his or her share in the vessel – or exempting the owner if he or she has handed the ship to the injured. However, it seems that the sinking of the Titanic in 1912, and the high costs of compensation for loss of life and injury, prompted unification of the rules relating to limitation on owners’ liability. A Comité Maritime International (CMI) committee established in 1913 resulted in a convention, adopted 11 years later, named the “International Convention for the Unification of Certain Rules Relating to the Limita - tion of Liability for Shipowners of Seagoing Vessels” (also known as the “Brussels Convention 1924”). This Convention was amended and updated in 1957 (also in Brussels). In 1976, following the work of the Inter-Governmental Maritime Consultative Organization (IMCO) and the CMI, a new Convention on the Limitation of Liabil - ity for Maritime Claims (LLMC) was introduced to the shipping industry. This Convention was updated in the Amending Protocol of 1996, and by Resolution LEG 5 (99) (2012) of the IMO’s legal committee. By order - ing (for example) that claims for oil pollution damages be excepted from limitation (Article 3 of the Amend - ing Protocol of 1996), the updated 1976 Convention is considered better suited to the shipping industry’s requirements and has been described as a “package deal” where, on the one hand, limitation amounts are raised (in favour of the injured), while on the other hand owners are deprived of their entitlement to limit liability only “if it is proved that the claim resulted from the ship owner’s personal act or omission, committed with the intent to cause such loss, or reckless and with knowledge that such loss would probably result” – in fact rendering the limitation on liability unbreakable (Christiaan Sheyouyuni Fikunawa, Law on the Limita- tion of Liability for Maritime Claims (IMO, 2021)).
The common concept of the Conventions is clear. Owners can apply to limit their liabilities towards a list of claims listed in the Convention(s) (such as loss of life or personal injury, damage to property, wreck removal, damage caused to harbour works, basins and navigable seaways), and their liability will be capped at an amount calculated according to the injuring vessel’s tonnage. Owners lose this privilege if the incident resulted from the “actual fault or privity of the owner” (according to the 1957 Convention), or from a much higher threshold of liability (from the point of view of breaking the limitation) as set out in the 1976 Convention. Both Conventions permit states to exclude specific categories of claims, such as wreck removal and damage to harbour works, basins and navigable waterways, from the scope of limitation. Accordingly, in the case of M/V Goliath , which collided with two tugs at the port of Devonport, Tasmania, caus - ing an incident requiring wreck removal, oil pollution and other economic damages were dealt with by the Australia Federal Court in accordance with the owner’s application to limit liability under the 1976 Convention (aiming to cap its liability towards claims amounting to about USD23 million to USD15.7 million). TasPorts (the injured port) argued that the relevant claims (listed in Article 2 1 (d) of the 1976 Convention) are excluded from limitation of liability following Australia’s ratifica - tion of the Convention in 1989, in which the relevant (allowed) reservations covered by Article 2 (d) and (e) of the 1976 convention were not applied. The own - ers, on the other hand, argued that the wreck removal claims were captured by the wording of Article 2 (1) (a) of the Convention – “claims in respect of loss of or damage to property” (which were not excluded) – and that the fact that they might also fall within the scope of Article 2 (1) (d) is irrelevant. After the first-instance court approved the owners’ argument, the full court overturned the decision. Turning to the Hong Kong Court of Final Appeal, which dealt with similar facts in the case of The Star Centu- rion [2024], the full court accepted the conclusion that it would be incoherent to allow a contracting state to not apply Article 2 (1) (d) (relating to wreck removal claims) when, at the same time, the claim fell within the scope of Article 2 (1) (a) and would be limited. Exclusion of the claims listed in Article 2 (1) (d) can
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