Claims) (Amendment) (No.2) Regulations, 2004

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 17,579, 7 ta’ Mejju, 2004

L.N. 261 of 2004

MERCHANT SHIPPING ACT

(CAP. 234)

Merchant Shipping (Limitation of Liability for Maritime

Claims) (Amendment) (No.2) Regulations, 2004

IN exercise of the powers conferred by articles 374 and 375 of

the Merchant Shipping Act, the Minister for Competitiveness and

Communications has made the following regulations>–

(1) The title of these regulations is the Merchant Shipping Citation and

Commencement.

(Limitation of Liability for Maritime Claims) (Amendment) (No.2)

Regulations, 2004, and shall be read and construed as one with the

Merchant Shipping (Limitation of Liability for Maritime Claims)

Regulations, 2003, hereinafter referred to as “the principal L.N. 361 of 2003.

regulations”.

(2)

These regulations shall come into force on the 13th

May, 2004.

In sub-regulation (4) of regulation 9 of the principal Amends regulation

9 of the principal

regulations, immediately after the words “the Athens Convention regulations.

relating to Carriage of Passengers and their Luggage by Sea,” there

shall be added the year “1974,”.

For the Schedule to the principal regulations there shall be Substitutes the

Schedule to the

substituted the following>–

principal

regulations.

“SCHEDULE

(Regulation 4)

Text of Articles 1 to 7, 8(1), 9 to 15 and Article 18 of

the Convention on Limitation of Liability for Maritime Claims 1976

as amended by the Protocol of 1996 thereto

CHAPTER I> THE RIGHT OF LIMITATION

Article 1

Persons entitled to limit liability

(1) 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 connection

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

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 limitation

(1) Subject to Articles 3 and 4 the following claims, whatever the basis of

liability may be, shall be subject to limitation of liability>

B

(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 connection 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 connection 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 sub-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, including, if applicable, any claim for special

compensation under Article 14 of the International Convention on Salvage,

1989, as amended, 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

When 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) 2 million Units of Account for a ship with a tonnage not

exceeding 2,000 tons,

(ii) for a ship with a tonnage in excess thereof, the following

amount in addition to that mentioned in (i) >

B

for each ton from 2,001 to 30,000 tons, 800 Units of Account<

for each ton from 30,001 to 70,000 tons, 600 Units of Account<

and

for each ton in excess of 70,000 tons, 400 Units of Account,

(b)

in respect of any other claims,

(i) 1 million Units of Account for a ship with a tonnage not

exceeding 2,000 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 2,001 to 30,000 tons, 400 Units of Account<

for each ton from 30,001 to 70,000 tons, 300 Units of Account<

and

for each ton in excess of 70,000 tons, 200 Units of Account.

(2) 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 1 of the International Convention on Tonnage Measurement of Ships,

1969. B

Article 7

The limit for passenger claims

(1) 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 175,000 Units of Account multiplied by the number of

passengers which the ship is authorized to carry according to the ship’s certificate.

(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

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 the 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.

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

(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.

(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

decided in accordance with the national law of the State Party in which action is

brought.

CHAPTER III> THE LIMITATION FUND

Article 11

Constitution of the Fund

(1) Any person alleged to be liable may constitute a fund with the Court or

other competent authority in any State Party in which legal proceedings are instituted

in respect of claims subject to limitation. The fund shall be constituted in the sum

of such of the amounts set out in Articles 6 and 7 as are applicable to claims for

which that person may be liable, together with interest thereon from the date of the

occurrence giving rise to the liability until the date of the constitution of the fund.

Any fund thus constituted shall be available only for the payment of claims in

respect of which limitation of liability can be invoked.

B

(2) A fund may be constituted, either by depositing the sum, or by producing

a guarantee acceptable under the legislation of the State Party where the fund is

constituted and considered to be adequate by the Court or other competent authority.

(3) A fund constituted by one of the persons mentioned in paragraph (1)(a),

(b) or (c) or paragraph (2) of Article 9 or his insurer shall be deemed constituted

by all persons mentioned in paragraph (1)(a), (b) or (c) or paragraph (2),

respectively.

Article 12

Distribution of the fund

(1) Subject to the provisions of paragraphs (1) and (2) of Article 6 and of

Article 7, the fund shall be distributed among the claimants in proportion to their

established claims against the fund.

(2) If, before the fund is distributed, the person liable, or his insurer, has

settled a claim against the fund such person shall, up to the amount he has paid,

acquire by subrogation the rights which the person so compensated would have

enjoyed under this Convention.

(3) The right of subrogation provided for in paragraph (2) may also be

exercised by persons other than those therein mentioned in respect of any amount

of compensation which they may have paid, but only to the extent that such

subrogation is permitted under the applicable national law.

(4) Where the person liable or any other person establishes that he may be

compelled to pay, at a later date, in whole or in part any such amount of compensation

with regard to which such person would have enjoyed a right of subrogation pursuant

to paragraphs (2) and (3) had the compensation been paid before the fund was

distributed, the Court or other competent authority of the State where the fund has

been constituted may order that a sufficient sum shall be provisionally set aside to

enable such person at such later date to enforce his claim against the fund.

Article 13

Bar to other actions

(1) Where a limitation fund has been constituted in accordance with Article

11, any person having made a claim against the fund shall be barred from exercising

any right in respect of such a claim against any other assets of a person by or on

behalf of whom the fund has been constituted.

(2) After a limitation fund has been constituted in accordance with Article

11, any ship or other property, belonging to a person on behalf of whom the fund

has been constituted, which has been arrested or attached within the jurisdiction of

a State Party for a claim which may be raised against the fund, or any security

given, may be released by order of the Court or other competent authority of such

State. However, such release shall always be ordered if the limitation fund has

been constituted>

B

(a) at the port where the occurrence took place, or, if it took place out

of port, at the first port of call thereafter< or

(b) at the port of disembarkation in respect of claims for loss of life or

personal injury< or

(c)

at the port of discharge in respect of damage to cargo< or

(d)

in the State where the arrest is made.

(3) The rules of paragraphs (1) and (2) shall apply only if the claimant may

bring a claim against the limitation fund before the Court administering that fund

and the fund is actually available and freely transferable in respect of that claim.

Article 14

Governing Law

Subject to the provisions of this Chapter the rules relating to the constitution

and distribution of a limitation fund, and all rules of procedure in connection therewith,

shall be governed by the law of the State Party in which the fund is constituted.

CHAPTER IV> SCOPE OF APPLICATION

Article 15

(1) This Convention shall apply whenever any person referred to in Article

1 seeks to limit his liability before the Court of a State Party or seeks to procure

the release of a ship or other property or the discharge of any security given within

the jurisdiction of any such State. Nevertheless, each State Party may exclude wholly

or partially from the application of this Convention any person referred to in Article

1, who at the time when the rules of this Convention are invoked before the Courts

of that State does not have his habitual residence in a State Party, or does not have

his principal place of business in a State Party or any ship in relation to which the

right of limitation is invoked or whose release is sought and which does not at the

time specified above fly the flag of a State party.

(2) A State Party may regulate by specific provisions of national law the

system of limitation of liability to be applied to vessels which are>

(a) according to the law of that State, ships intended for navigation on

inland waterways<

(b) ships of less than 300 tons.

A State Party which makes use of the option provided for in this paragraph

shall inform the depositary of the limits of liability adopted in its national legislation

or of the fact that there are none.

(3) A State Party may regulate by specific provisions of national law the

system of limitation of liability to be applied to claims arising in cases in which

interests of persons who are nationals of other States Parties are in no way involved.

(3bis) Notwithstanding the limit of liability prescribed in paragraph (1) of

Article 7, a State Party may regulate by specific provisions of national law the

system of liability to be applied to claims for loss of life or personal injury to

passengers of a ship, provided that the limit of liability is not lower than that

prescribed in paragraph (1) of Article 7. A State Party which makes use of the

option provided for in this paragraph shall inform the Secretary-General of the

limits of liability adopted or of the fact that there are none.

(4) The Courts of a State Party shall not apply this Convention to ships

constructed for, or adapted to, and engaged in, drilling>

(a) when that State has established under its national legislation a higher

limit of liability than that otherwise provided for in Article 6< or

(b) when that State has become party to an international convention

regulating the system of liability in respect of such ships.

In a case to which sub-paragraph (a) applies that State Party shall inform the

depositary accordingly.

(5)

This Convention shall not apply to>

(a)

air-cushion vehicles<

(b) floating platforms constructed for the purpose of exploring or

exploiting the natural resources of the sea-bed or the sub-soil thereof.

Articles 16 and 17 omitted.

Article 18

Reservations

(1) Any State may, at the time of signature, ratification, acceptance, approval

or accession, or at any time thereafter, reserve the right>

(a)

to exclude the application of Article 2, paragraphs (1)(d) and (e)<

(b) to exclude claims for damage within the meaning of the International

Convention on Liability and Compensation for Damage in connection with

the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any

amendment or Protocol thereto.

No other reservations shall be admissible to the substantive provisions of this

Convention.”.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press