Abstract
On 19 November 1976 the Legal Conference held in London under the auspices of IMCO (Intergovernmental Maritime Consultative Organization) adopted a new convention on limitation of liability for maritime claims.1International unification of private maritime law had thus been carried one step farther. Usually international unification of law is very much a long term matter and this new convention is no exception to this process of slow progress. After 6 1/2 years it has not yet come into force, but there are promising indications that the number of instruments of ratification, acceptance or approval necessary for its entry into force might be reached in 1983.2
Head of Division Private Law Legislation of the Ministry of Justice.
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References
Convention on Limitation of Liability for Maritime Claims, 1976 (Compilation International Conventions on Maritime Law; Comit é Maritime International).
Art. 17 of the Convention requires ratification, acceptance or approval by at least twelve States. So far the Arabic Republic of Yemen, United Kingdom, Liberia, France and Spain have acceded to the Convention and it is known that eleven other States, including the Netherlands, Belgium and the Scandinavian countries, are preparing legislation necessary for becoming a Party or have expressed their intention to do so. The rules of the Convention have already been included in section 21 of the new Lloyd’s Standard Form for Salvage Agreement (Lloyd’s Open Form 1980): “The Contractor shall be entitled to limit any liability to the subject vessel and/or her cargo bunkers and stores which he and/or his Servants may incur in and about the services in the manner and to the extent provided by English law and as if the provisions of the Convention on Limitation of Liability for Maritime Claims 1976 were part of the law of England”.
See, for instance, Art. 3 of the Protocol of 1968 to the Brussels Bills of Lading Convention of 1924 (new Art. Abisof the amended Convention).
In this light the new section 21 of Lloyd’s Open Form, cited in footnote 3 is somewhat strange. The Convention has not entered into force and does not yet form a part of the law of England. Being a contractual clause it can only bind the parties to the salvage agreement and one may doubt whether the Court would apply the 1976 rules to an accident where also third parties would be involved. The main purpose of this section is however to neutralize the effects of the decision of the House of Lords in the Tojo Mamcase, which will be discussed in chapter 4.
Michael Thomas, “British Concepts of Limitation of Liability”, Tulane Law Review, Vol. 53, no. 4 (June 1979).
About the different legal situations in air and maritime law: Neil R. Mc Gilchrist, “Limitation of Liability at Sea and in the Air”, Lloyd’s Maritime and Commercial Law Quarterly, August 1975.
In nuclear law and with respect to liability for oil pollution at sea. In air law the Rome Convention of 1952.
Ren é Rodi è re has heavily critized the concept of insurability as the underlying principle for global limitation of shipowner’s liability and the British tonnage system as adopted in the 1957 Convention as unjust and unjustifiable. He has proposed to rely on a modernized “abandon”-system (“abandon en valeur”): Droit Maritime Francais, No. 293, May 1973, pp. 259 – 267.
Sotiropoulos, Die Beschr ä nkung der Reederhaftung, (Berlin 1962), p. 4; James J. Donovan, “The Origins and Development of Limitation of Shipowner’s Liability”, Tulane Law Review, Vol. 53, No. 4, p. 999.
Fueros de Valencia (1250); Tabula Almalfitana, Italy 12 – 13th Century; Consulato del Mar, Barcelona 14th Century; Ordonnance of Charles VI, France 1415; Ordonnance de la Marine Marchande of Louis XIV, 1681. See, Sotiropoulos, loc.cit. p. 30.
See, in particular, pp. 30 and 31, ibid.
See, in particular, Michael Thomas, loc.cit. pp. 1205 – 1209.
The U.S. Limitation of Liability Act of 1851 as amended in 1935 permits the shipowner to limit his liability, unless the accident occurred with his privity or knowledge, to the value of the vessel at the end of the voyage on which the accident occurred, but with a minimum limitation of US$ 60 per gross ton available with respect to claims for loss of life and personal injury. In practice, however, the U.S. Courts often deny the privilege of limitation on ground of assumed privity or knowledge of the shipowner.
Australia became a Party to the 1957 Convention only on 30 July 1980, 3 1/2 years after the adoption of the 1976 Convention.
The Netherlands have not made use of this reservation.
United Nations Commission on International Trade Law.
See also, supra, n. 4.
The House of Lords applied section 2(1) Merchant Shipping Act, 1958 which included among others the provisions of the 1957 Convention. The House of Lords gave therefore indirectly an interpretation of Art. 1, para. 1(b) of the Convention.
This creates a conflict between conventions when a State is a Party to both the 1957 Convention and to one or to both of the other Conventions mentioned vis-à-vis another State Party to the 1957 Convention but not a Party to the other Convention(s). This problem has been solved in Dutch legislation in different ways with respect to the Nuclear Ships*Convention and CLC. See: Art. 25, Act of 1973 on civil liability of operators of nuclear ships (Wet van 24 Oktober 1973, Stb. 536) and Art. 28 of the Act on the liability of oiltankers (Wet van 11juni 1975, Stb. 321).
Even cargo-owners or shippers may become liable for damage caused by their cargo during transport to the ship, other cargo on board or even persons outside the ship. The present draft of IMCO for a new convention on liability and compensation for damage caused during transport by sea of hazardous substances (HNS Convention) provides for a strict liability of the shipowner to a certain limit and a supplementary liability of the shipper of the cargo.
See, Droit Maritime Frangais, 1973, supra, n. 8.
See UNCTAD report on bills of lading, United Nations, N.Y. 1971, p. 33.
Art. 1 of the London Convention.
CMI report to IMCO (1974), p. 9 and George E. Duncan, “Limitation of Shipowner’s Liability: parties entitled to limit; the vessel, the Fund”; Tulane Law Review, Vol. 53, No. 4, p. 1054.
See, Branimir Luksic, “Limitation of Liability for the raising and removal of ships and wrecks: a comparative study”, Journal of Maritime Law and Commerce, Vol. 12, No. 1 (October 1980).
See also, supra, n. 15.
(c) refers to claims subject to any international Convention or national legislation governing or prohibiting limitation for nuclear damage: Paris Convention of 1960 and Supplementary Protocol of 1962 (Trb. 1964, 176); Vienna Convention of 1963 (Trb. 1964, 175); (d) refers to claims against a shipowner of a nuclear ship: Nuclear Ships Convention of 1962 (Trb. 1968, 90) incl. the Dutch Act giving effect to that Convention (Wet van 23 Oktober 1973, Stb. 536).
“The 1976 Limitation Convention and oil pollution damage”, [1979] Lloyd’s Maritime and Commercial Law Quarterly, pp. 21 – 25.
See, Art. 3, para. 4 of the Visby Rules (Protocol of 1968 to Bills of Lading Convention, Trb. 1979, 26) and Art. 13 of Athens Convention on carriage of passengers and their luggage by sea, 1974 Compilation International Conventions on Maritime Law, Comit é Maritime International.
The unit of account of the Convention is the Special Drawing Right (SDR) of the IMF (Art. 8).
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Cleton, R. (1983). Limitation of Liability for Maritime Claims. In: Essays on International & Comparative Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-1468-6_2
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