Limitation of Liability in International Maritime Conventions

The Relationship between Global Limitation Conventions and Particular Liability Regimes

Norman Martínez Gutiérrez

• Editore: Routledge
• Anno: 2010
• ISBN:
  9781136847479
• Edizione: 1
• Argomento: Economia
• Categoria: Economia internazionale

Limitation of liability for maritime claims is a concept of respectable antiquity which is now deeply entrenched in the maritime industry. Under this concept, the shipowner is entitled to limit his liability for maritime claims up to a maximum sum regardless of the actual amount of the claims. The concept of limitation of liability has been adopted by many conventions ranging from those relating to the carriage of goods by sea, carriage of passengers and their luggage by sea, liability and compensation for pollution damage, to liability for the removal of wrecks. Each of these conventions has its own approach to limitation of liability. However, these particular liability regimes share the international arena with global limitation conventions such as the 1976 Convention on Limitation of Liability for Maritime Claims and the 1996 Protocol thereto.

This book approaches limitation of liability from an international perspective looking at a number of key conventions including the global limitation conventions, the conventions relating to the carriage of passengers and their luggage by sea (1974 Athens Convention relating to the Carriage of Passengers and Their Luggage by Sea and the 2002 Protocol thereto), conventions relating to liability and compensation for pollution damage (1969 International Convention on Civil Liability for Oil Pollution Damage and the 1992 Protocol thereto, the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea and the 2010 Protocol thereto, and the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage), as well as the 2007 Nairobi International Convention on the Removal of Wrecks.

Each chapter of this book sets out to analyze provisions in the conventions which have proved to be controversial and subject to debate by courts and authors, as well as the relationship between the limitation provisions in claim specific liability conventions and in the global limitation conventions. Particular attention is also given to the persons entitled to limit liability, ships in respect of which liability can be limited, claims subject to limitation, claims excepted from limitation, basis of liability (where applicable), loss of the right to limit, and the limits of liability.

Limitation of Liability in International Maritime Conventions is of interest to academics and practicing lawyers who wish to understand the intricacies of the law of limitation.

1 Historical background

1.1 Origins of the concept and its development in continental Europe

Some authors claim that the origins of a shipowner’s right of limitation of liability can be traced to Roman Law.¹ To support their views they refer to the actio noxalis, the actio de peculio, and the cessio bonorum. However, from an analysis of these actions, it seems difficult to accept the idea that the origin of the shipowner’s right to limit his liability is found in Roman Law. Indeed, it has been suggested that although notions of ‘limitation’ can be traced back to Roman times, there are no records of ‘limitation in maritime law’ from this period.²

It appears that the first real recognition of a shipowner’s right of limitation of liability is found in the Amalphitan Table³ (dating around the eleventh century), making many authors prefer the view that the cradle of the concept is found in Italy, wherefrom it later spread to France and Spain.⁴ The arrival of the concept in Spain is evidenced by the provisions on limitation of liability contained in the Code of Valencia⁵ and the Consolato del Mare. Under the Consolato del Mare the liability of owners and part-owners was limited to the value of their respective shares in the ship.⁶

Donovan argues that limitation of liability subsequently developed during the Middle Ages with the expansion of water-borne commerce so as to encourage investment in maritime adventures. This development took place after shipowners realized that they could no longer accompany their vessels on lengthy voyages, and after it had become generally recognized that they incurred greater risks than land carriers.⁷ It is, however, curious to note that other medieval codes such as the Laws of Oleron, the Gotland Sea Laws and the Flanders Sea Laws did not contain provisions on limitation of liability but, on the other hand, required the wrongdoer in a collision to give full compensation for any damage caused.⁸ These codes were based on the principle of ‘restitutio in integrum’ which aims to put the injured party in the same position he would have been had the event causing injury not occurred.

By the sixteenth and seventeenth centuries, the concept of limitation of liability had spread from the Western Mediterranean and seems to have taken root in European maritime nations. It has been reported that, in 1625, the concept was praised on grounds of public policy by the eminent international lawyer Hugo Grotius.⁹ Grotius stated that the concept had been, for some time, established in the law of Holland¹⁰ and asserted that ‘men would be deterred from employing ships, if they lay under the perpetual fear of being answerable for the acts of their masters to an unlimited extent’.¹¹ He claimed that the concept was necessary to encourage the development of the maritime industry, and that the principle of restitutio in integrum was both ‘inequitable and injurious to the interests of trade’.¹² On this basis Grotius contended that the concept of limitation of liability was supported by ‘natural justice’.¹³ However, it seems difficult to reconcile the concept of limitation of liability with natural justice. In fact, it is submitted that the principle of ‘restitutio in integrum’ is actually in line with natural justice, whereas limitation of liability is actually contrary to, and detracts from, natural justice and was introduced in order to promote or encourage investment in the maritime industry.¹⁴ This argument is supported by Dr Lushington, who, in the case of The Amalia,¹⁵ held that ‘the principle of limited liability is that full indemnity, the natural rights of justice, shall be abridged for political reasons’.¹⁶ The same conclusion was reached by Lord Denning in the case of The Bramley Moore,¹⁷ where he stated that limitation of liability ‘is not a matter of justice. It is a rule of public policy which has its origin in history and its justification in convenience’.¹⁸

In spite of — or perhaps due to — the different approaches and justifications which the concept received during this period, limitation of liability gained acceptance in many countries. The proliferation of the codification of the concept is reflected in the various provisions included in several enactments of this period. For example, the Statutes of Hamburg of 1603 and the Maritime Code of Sweden of 1667 expressly limited the liability of the shipowners to the value of the ship, by stating that where the shipowner abandoned his ship to his creditors, all other assets of the shipowner would be protected from creditors’ further claims.¹⁹ The Hanseatic Ordinances of 1614 and 1644, in turn, also limited the shipowner’s liability to the value of the vessel and stated that all claims had to be satisfied from the proceeds of the sale of the vessel.²⁰ Similarly, the Ordinance of Rotterdam of 1721 declared that ‘the owners shall not be answerable for any act of the master done without their order, any further than their part of the ship amounts to’.²¹

The Marine Ordinance of Louis XIV of 1681 firmly recognized the concept by declaring that ‘The owners of [the] ship shall be answerable for the deeds of the master; but shall be discharged, abandoning their ship and freight’.²² This Ordinance was incorporated almost integrally into the French Code of Commerce of 1807,²³ and was widely accepted by the maritime community.²⁴ It was then used as a model for the maritime law of several European and Latin American countries.²⁵

1.2 English Law and limitation of liability

As will be discussed in further detail hereunder, it has been traditionally recognized that the development of the shipowner’s right of limitation of liability in the UK has its origins in the practice of continental nations and dates back only to 1734. Nevertheless, before discussing the statutory development of the shipowner’s ‘personal’ right of limitation of liability in the UK, this section aims to recognize an earlier form of limitation of liability in the UK by examining a possible link between the right to limit liability and the action in rem.

1.2.1 Limitation of liability and the action in rem

The recourse of proceeding directly against the ship befor...