LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151, 1989
LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - LONG TITLE
An act to give effect to the Convention on Limitation of Liability for Maritime Claims, 1976, and for related purposes LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 1 Short title
(Assented to 30 November 1989) 1. This Act may be cited as the Limitation of Liability for Maritime Claims Act 1989. (Minister's second reading speech made in- House of Representatives on 12 April 1989 Senate on 18 August 1989) LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 2 Commencement
2. (1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation. (2) If this Act does not commence under subsection (1) within the period of 18 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 3 Interpretation
3. (1) In this Act: "applied provisions" means the provisions of the Convention that, under section 6, have the force of law in Australia; "Convention" means the Convention on Limitation of Liability for Maritime Claims, 1976 adopted by the International Conference on Limitation of Liability for Maritime Claims at London on 19 November 1976, a copy of whose English text is set out in Schedule 1. (2) Unless the contrary intention appears, a word or expression has the same meaning in this Act as it has in the Convention. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 4 Extension to external Territories
4. This Act extends to the external Territories. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 5 Application
5. This Act does not apply in relation to a ship to the extent that a law of a State or the Northern Territory makes provision giving effect to the Convention in relation to that ship. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 6 Applied provisions to have force of law
6. Subject to this Act, the provisions of the Convention, other than paragraphs 1 (d) and (e) of Article 2, have the force of law in Australia. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 7 Applied provisions not applicable in relation to certain ships
7. The applied provisions do not apply in relation to a ship that belongs to the naval, military or air forces of a foreign country. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 8 Priority of claims in respect of damage to harbour works etc.
8. For the purposes of paragraph 3 of Article 6 of the Convention, it is hereby provided that a claim in respect of damage to harbour works, basins, waterways or aids to navigation has priority over any other claim under paragraph 1 (b) of the Article. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 9 Applications to the Court under the applied provisions
9. (1) Where a claim is made, or is expected to be made, against a person in respect of any liability of the person that may be limited under the applied provisions, the person may apply: (a) where a claim has been made against the person in proceedings in the Supreme Court of a State or Territory-to that Court; or (b) in any other case-to the Supreme Court of any State or Territory; to determine the limit of that liability under the applied provisions, and the Court may determine that limit. (2) In making the determination, the Court may make any order with respect to the constitution, administration and distribution, in accordance with the applied provisions, of a limitation fund in respect of claims subject to the limitation.
(3) The Court may, at any stage of the proceedings, upon application or of its own motion, by order, transfer the proceedings to another Supreme Court.
(4) Where proceedings are transferred from a Court to another Court: (a) all documents filed of record, and moneys lodged, in the first-mentioned Court shall be transmitted to the other Court; and (b) the other Court shall proceed as if the proceedings had been instituted and pursued in that Court. (5) This section does not exclude or limit the operation of section 25 of the Admiralty Act 1988. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 10 Evidence of certain matters
10. (1) The Minister may, by notice published in the Gazette, declare:
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(a) that a country specified in the notice has ratified or acceded to the Convention subject to the reservations (if any) specified in the notice, and that the Convention has, or will, subject to those reservations (if any), come into force in respect of that country on the date specified in the notice; (b) that a country specified in the notice has, at the time of deposit of its instrument of ratification or accession to the Convention or at any later time, declared that the Convention extends to a territory or territories specified in the notice and that the extension has, or will, come into force on the date specified in the notice; (c) that a country specified in the notice has denounced the Convention and that the denunciation has taken, or will take, effect on the date specified in the notice; or (d) that a country specified in the notice has declared that the Convention shall cease to extend to a territory or territories specified in the notice and that the denunciation has taken, or will take, effect on the date specified in the notice. (2) A notice under subsection (1) is, for all purposes, prima facie evidence of the matters declared. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 11 Regulations etc.
11. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act; and, in particular, providing for matters that, under the applied provisions, are to be governed by Australian law. (2) Subsection (1) does not limit the power of a judge or judges of the Supreme Court of a State or Territory to make rules of Court with respect to a matter that is not provided for in the regulations. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 12 Amendments of the Admiralty Act 1988
12. The Admiralty Act 1988*1* is amended as set out in Schedule 2. *1* No. 34, 1988. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SECT 13 Amendments of the Navigation Act 1912
13. The Navigation Act 1912*2* is amended as set out in Schedule 3. *2* No. 4, 1913, as amended. For previous amendments, see No. 32, 1919; No. 1 1921; No. 8, 1925; No. 8, 1926; No. 49, 1934; No. 30, 1935; No. 1, 1943; No. 80, 1950; No. 109, 1952; No. 96, 1953; No. 46, 1956; No. 36, 1958; No. 96, 1961; No. 1, 1965; No. 93, 1966; No. 60, 1967; No. 62, 1968; Nos. 1 and 117, 1970; No. 28, 1972; No. 216, 1973; Nos. 91 and 157, 1976; Nos. 98 and 155, 1979; Nos. 70 and 87, 1980; Nos. 10, 36, 61 and 74, 1981; No. 80, 1982; Nos. 39, 40, 84 and 136, 1983; Nos. 72 and 165, 1984; No. 65 and 193, 1985; Nos. 76, 132, 163 and 167, 1986; No. 141, 1987; and Nos. 34 and 57, 1988. LIMITATION OF LIABILITY FOR MARITIME CLAIMS ACT 1989 No. 151 of 1989 - SCHEDULE 1
SCHEDULE 1 Subsection 3(1) CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS, 1976 THE STATES PARTIES TO THIS CONVENTION, HAVING RECOGNIZED the desirability of determining by agreement certain uniform rules relating to the limitation of liability for maritime claims, HAVE DECIDED to conclude a Convention for this purpose and have thereto agreed as follows: CHAPTER I. THE RIGHT OF LIMITATION Article 1 Persons entitled to limit liability1. Shipowners and salvors, as hereinafter defined, may limit their liability in accordance with the rules of this Convention for claims set out in Article 2.2. The term "shipowner" shall mean the owner, charterer, manager and operator of a seagoing ship. 3. Salvor shall mean any person rendering services in direct connexion with salvage operations. Salvage operations shall also include operations referred to in Article 2, paragraph 1(d), (e) and (f). 4. If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner or salvor is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention. 5. In this Convention the liability of a shipowner shall include liability in an action brought against the vessel herself. 6. An insurer of liability for claims subject to limitation in accordance with
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the rules of this Convention shall be entitled to the benefits of this Convention to the same extent as the assured himself. 7. The act of invoking limitation of liability shall not constitute an admission of liability. Article 2 Claims subject to limitation1. Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability: (a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom; (b) claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage; (c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations; (d) claims in respect of the 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; (e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship; (f) claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures. 2. Claims set out in paragraph 1 shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise. However, claims set out under paragraph 1 (d), (e) and (f) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable. Article 3 Claims excepted from limitation The rules of this Convention shall not apply to: (a) claims for salvage or contribution in general average; (b) claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, dated 29 November 1969 or of any amendment or Protocol thereto which is in force; (c) claims subject to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage; (d) claims against the shipowner of a nuclear ship for nuclear damage; (e) claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs, dependants or other persons entitled to make such claims, if under the law governing the contract of service between the shipowner or salvor and such servants the shipowner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in Article 6. Article 4 Conduct barring limitation 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. Article 5 Counterclaims Where a person entitled to limitation of liability under the rules of this Convention has a claim against the claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this Convention shall only apply to the balance, if any. CHAPTER II. LIMITS OF LIABILITY Article 6 The general limits 1. The limits of liability for claims other than those mentioned in Article 7, arising on any distinct occasion, shall be calculated as follows: (a) in respect of claims for loss of life or personal injury, (i) 333,000 Units of Account for a ship with a tonnage not exceeding
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500 tons, (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 501 to 3,000 tons, 500 Units of Account; for each ton from 3,001 to 30,000 tons, 333 Units of Account; for each ton from 30,001 to 70,000 tons, 250 Units of Account; and for each ton in excess of 70,000 tons, 167 Units of Account, (b) in respect of any other claims, (i) 167,000 Units of Account for a ship with a tonnage not exceeding 500 tons, (ii) for a ship with a tonnage in excess thereof the following amount in addition to that mentioned in (i): for each ton from 501 to 30,000 tons, 167 Units of Account; for each ton from 30,001 to 70,000 tons, 125 Units of Account; and for each ton in excess of 70,000 tons, 83 Units of Account. Limitation of Liability for Maritime Claims No. , 1989 Limitation of Liability for Maritime Claims No. , 1989 Limitation of Liability for Maritime Claims No. , 19892. Where the amount calculated in accordance with paragraph 1 (a) is insufficient to pay the claims mentioned therein in full, the amount calculated in accordance with paragraph 1 (b) shall be available for payment of the unpaid balance of claims under paragraph 1 (a) and such unpaid balance shall rank rateably with claims mentioned under paragraph 1 (b). 3. However, without prejudice to the right of claims for loss of life or personal injury according to paragraph 2, a State Party may provide in its national law that claims in respect of damage to harbour works, basins and waterways and aids to navigation shall have such priority over other claims under paragraph 1 (b) as is provided by that law. 4. The limits of liability for any salvor not operating from any ship or for any salvor operating solely on the ship to, or in respect of which he is rendering salvage services, shall be calculated according to a tonnage of 1,500 tons. 5. For the purpose of this Convention the ship's tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969. Article 7 The limit for passenger claims1. In respect of claims arising on any distinct occasion for loss of life or personal injury to passengers of a ship, the limit of liability of the shipowner thereof shall be an amount of 46,666 Units of Account multiplied by the number of passengers which the ship is authorized to carry according to the ship's certificate, but not exceeding 25 million Units of Account. 2. For the purpose of this Article "claims for loss of life or personal injury to passengers of a ship" shall mean any such claims brought by or on behalf of any person carried in that ship: (a) under a contract of passenger carriage, or (b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods. Article 8 Unit of Account 1. The Unit of Account referred to in Articles 6 and 7 is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in Articles 6 and 7 shall be converted into the national currency of the State in which limitation is sought, according to the value of that currency at the date the limitation fund shall have been constituted, payment is made, or security is given which under the law of that State is equivalent to such payment. The value of a national currency in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of a national currency in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party. 2. Nevertheless, those States which are not members of the International
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Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 may, at the time of signature without reservation as to ratification, acceptance or approval or at the time of ratification, acceptance, approval or accession or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in their territories shall be fixed as follows: (a) in respect of Article 6, paragraph 1 (a) at an amount of: (i) 5 million monetary units for a ship with a tonnage not exceeding 500 tons; (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 501 to 3,000 tons, 7,500 monetary units; for each ton from 3,001 to 30,000 tons, 5,000 monetary units; for each ton from 30,001 to 70,000 tons, 3,750 monetary units; and for each ton in excess of 70,000 tons, 2,500 monetary units; and (b) in respect of Article 6, paragraph 1 (b), at an amount of: (i) 2.5 million monetary units for a ship with a tonnage not exceeding 500 tons; (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 501 to 30,000 tons, 2,500 monetary units; for each ton from 30,001 to 70,000 tons, 1,850 monetary units; and for each ton in excess of 70,000 tons, 1,250 monetary units; and (c) in respect of Article 7, paragraph 1, at an amount of 700,000 monetary units multiplied by the number of passengers which the ship is authorized to carry according to its certificate, but not exceeding 375 million monetary units. Paragraphs 2 and 3 of Article 6 apply correspondingly to sub-paragraphs (a) and (b) of this paragraph.3. The monetary unit referred to in paragraph 2 corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the amounts referred to in paragraph 2 into the national currency shall be made according to the law of the State concerned. 4. The calculation mentioned in the last sentence of paragraph 1 and the conversion mentioned in paragraph 3 shall be made in such a manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 6 and 7 as is expressed there in units of account. States Parties shall communicate to the depositary the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 3, as the case may be, at the time of the signature without reservation as to ratification, acceptance or approval, or when depositing an instrument referred to in Article 16 and whenever there is a change in either. Article 9 Aggregation of claims 1. The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion: (a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose act, neglect or default he or they are responsible; or (b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or (c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to, or in respect of which, the salvage services are rendered and any person for whose act, neglect or default he or they are responsible. 2. The limits of liability determined in accordance with Article 7 shall apply to the aggregate of all claims subject thereto which may arise on any distinct occasion against the person or persons mentioned in paragraph 2 of Article 1 in respect of the ship referred to in Article 7 and any person for whose act, neglect or default he or they are responsible. Article 10 Limitation of liability without constitution of a limitation fund 1. Limitation of liability may be invoked notwithstanding that a limitation fund as mentioned in Article 11 has not been constituted. However, a State Party may provide in its national law that, where an action is brought in its Courts to
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enforce a claim subject to limitation, a person liable may only invoke the right to limit liability if a limitation fund has been constituted in accordance with the provisions of this Convention or is constituted when the right to limit liability is invoked. 2. If limitation of liability is invoked without the constitution of a limitation fund, the provisions of Article 12 shall apply correspondingly. 3. Questions of procedure arising under the rules of this Article shall be