LIMITATION OF LIABILITY FOR MARITIME CLAIMS REGULATIONS

LIMITATION OF LIABILITY FOR MARITIME CLAIMS

SUBSIDIARY LEGISLATION 234.16

LIMITATION OF LIABILITY FOR MARITIME

CLAIMS REGULATIONS

1st March, 2004 *

LEGAL NOTICE 361 of 2003, as amended by Legal Notices 103 and 261

of 2004, 411 of 2007 and 156 of 2015.

The title of these regulations is the Limitation of Liability

for Maritime Claims Regulations.

Substituted by

L.N. 261 of 2004.

(Regulation 4)

Amended by

L.N. 156 of 2015.

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 -

(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

LIMITATION OF LIABILITY FOR MARITIME CLAIMS

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

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

LIMITATION OF LIABILITY FOR MARITIME CLAIMS

(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) 3.02 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, 1,208 Units of

Account;

for each ton from 30,001 to 70,000 tons, 906 Units of

Account; and

for each ton in excess of 70,000 tons, 604 Units of Account,

(b) in respect of any other claims,

(i) 1.51 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, 604 Units of Account;

for each ton from 30,001 to 70,000 tons, 453 Units of

Account; and

for each ton in excess of 70,000 tons, 302 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 shipís 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.

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 shipís certificate.

(2) For the purpose of this Article ëclaims for loss of life or personal injury to

passengers of a shipí 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

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(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) 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.

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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.

(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 l ater date, in whole or in part any such am ount 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

LIMITATION OF LIABILITY FOR MARITIME CLAIMS

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 -

(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

LIMITATION OF LIABILITY FOR MARITIME CLAIMS

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.

(1)

In these regulations, unless the context otherwise

requires -

''the Act'' means the Merchant Shipping Act;

''the Convention'' means the Convention on Limitation of

Liability for Maritime Claims signed in London on the 19th

November, 1976, as amended by the Protocol of 1996 thereto,

signed in London on the 2nd May, 1996, as referred to in article

375(2)(a) and (b) of the Act;

''the Minister'' means the Minister responsible for shipping.

(2) Unless otherwise defined in these regulations or unless the

context otherwise requires, words and expressions used in these

regulations shall have the same meaning assigned to them in the

Convention.

These regulations provide a regime of limitation of liability

for maritime claims and give effect to the Convention.

(1) Subject to the provisions of these regulations, those

provisions of the Convention set out in the Schedule shall form part

of and be enforceable as part of the Law of Malta and any provision

of the Act inconsistent therewith shall no longer apply.

(2) Without prejudice to the generality of subregulation (1),

articles 349 to 358 of the Act shall no longer apply.

Subject to the provisions of regulation 9, the right to limit

liability under the Convention shall apply in relation to any ship,

whether seagoing or not, and the definition of ''shipowner'' in

paragraph 2 of Article 1 of the Convention shall be construed

accordingly.

References in the Convention and in these regulations to a

''ship'' include references to any structure, whether completed or in

the course of completion, launched or intended for use in

navigation as a ship or part of a ship, and shall apply to any barge

or like vessel however propelled, and the expression ''ship'' shall be

construed accordingly.

*see regulation 1(2) of these Regulations, as originally promulgated, and Legal Notice

447 of 2003.

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Unless otherwise expressly stated, references in the

Convention and in these regulations to ''the Court'' or to ''the Court

or other competent authority'' are references to the Civil Court,

First Hall and shall be construed accordingly.

(1) For the purpose of Article 15 of the Convention, in the

application of Article 6 of the Convention to a ship with a tonnage

less than 300 tons that Article shall have effect as if -

(a) Article 6(1)(a)(i) refers to 1,000,000 Units of Account;

and

(b) Article 6(1)(b)(i) refers to 500,000 Units of Account.

(2) For the purpose of this regulation and for the purposes of

Article 6 of the Convention, the tonnage of a ship shall be its gross

tonnage calculated in accordance with the Merchant Shipping

(Tonnage) Regulations.

(1) Paragraph (1)(a) of Article 2 of the Convention shall

have effect as if the reference to ''loss of life or personal injury'' did

not include a reference to loss of life or personal injury to

passengers of seagoing ships.

(2) Article 7 of the Convention shall not apply in respect of any

seagoing ship.

(3) Article 7 of the Convention shall have effect in respect of

any ship which is not seagoing as if paragraph 1 thereof reads

''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 in

respect of each passenger shall be an amount of

175,000 Units of Account.''.

(4) The provisions of this regulation shall only apply to claims

covered by the Athens Convention relating to Carriage of

Passengers and their Luggage by Sea, 1974, or any amendment or

Protocol to that Convention, which arise from occurrences which

take place after the coming into force of that Convention as part of

the Law of Malta.

(1) For the purpose of converting the amounts mentioned

in Articles 6 and 7 of the Convention from Special Drawing Rights

into Euros, one Special Drawing Right shall be treated as equal to

such a sum in Euros as the International Monetary Fund has fixed

as being the equivalent of one Special Drawing Right for -

(a) the relevant date under paragraph 1 of Article 8 of the

Convention; or

(b) if no sum has been so fixed for that date, the last

preceding date for which a sum has been so fixed.

(2)

A certificate given by or on behalf of the Minister stating -

(a) that a particular sum in Euros has been fixed as

mentioned in subregulation (1) for a particular date; or

(b) that no sum has been so fixed for that date and that a

particular sum in Euros has been so fixed for a date

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which is the last preceding date for which a sum has

been so fixed,

shall be conclusive evidence of those matters for the purposes of

the Articles referred to in subregulation (1); and a document

purporting to be such a certificate shall, in any proceedings, be

received in evidence and, unless the contrary is proved, be deemed

to be such a certificate.

(1) 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 any amendment or Protocol to

that Convention, which arise from occurrences which take place

after the coming into force of that Convention as part of the Law of

Malta shall be excluded from the Convention.

(2) The claims excluded from the Convention by paragraph (b)

of Article 3 thereof are claims in respect of any liability incurred

under Article III of the International Convention on Civil Liability

for Oil Pollution Damage, 1992, as set out in the First Schedule to

the Oil Pollution (Liability and Compensation) Act.

(3) Paragraphs (1)(d) and (1)(e) of Article 2 of the Convention

shall not apply.

(1) Where any liability is alleged to have been incurred by

any person in respect of an occurrence in respect of which his

liability is limited under these regulations, such person may apply

to the Civil Court, First Hall, for the determination of the amount

of his liability and, where several claims are made or apprehended

in respect of that liability, for the distribution of that amount

rateably among the claimants, and in any such case the Civil Court,

First Hall, may stay any proceedings pending in relation to the

same matter, and any other court shall, upon an application to that

effect and notwithstanding any other provision of law, transfer any

such proceedings for trial by the Civil Court, First Hall. The Civil

Court, First Hall, and on appeal the appellate court, may in any of

the circumstances aforesaid proceed in such manner and subject to

such procedure as to making persons interested parties to the

proceedings and as to the exclusion of any claimants who do not

come in within a certain time, and as to requiring security from the

applicant, and as to the payment of any costs, as the court thinks

just.

(2) In making any distribution in accordance with this

regulation, the Civil Court, First Hall may, if it thinks fit, postpone

the distribution of such part of the amount to be distributed as it

deems appropriate having regard to any claim that may later be

established before a court of any country outside Malta.

(3) No privilege or other right in respect of any ship or

property shall affect the proportions in which, under Article 12 of

the Convention, the fund is distributed among several claimants.

(1) For the purposes of Article 11 of the Convention, the

fund therein referred to shall be constituted with the Civil Court,

First Hall.

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(2) The rate of interest to be applied for the purposes of

paragraph (1) of Article 11 of the Convention shall be eight

percent.

(3) A person claiming limitation may constitute a limitation

fund by paying into court the equivalent in Euros of the number of

Special Drawing Rights to which he claims to be entitled to limit

his liability in terms of these regulations together with interest

thereon from the date of the occurrence giving rise to his liability to

the date of payment into court.

(4) Where the person claiming limitation does not know the

Euros equivalent of the said number of Special Drawing Rights on

the date of payment into court, he may calculate the same on the

basis of the latest available published Euro equivalent of a Special

Drawing Right as fixed by the International Monetary Fund, and in

the event of the Euro equivalent of a Special Drawing Right on the

date of payment into court under subregulation (3) being different

from that used for calculating the amount of that payment into

court, the person claiming limitation -

(a) shall make up any deficiency by making a further

payment into court which, if made within fourteen

days after the payment into court under subregulation

(3), shall be treated as if it had been made on the date

of that payment into court, or

(b) may apply to the court for the refund of any excess

amount paid into court under subregulation (3).

(5) An application under subregulation (4)(b) shall be

supported by evidence proving the Euro equivalent of the

appropriate number of Special Drawing Rights on the date of

payment into court.

(6) On making any payment into court under this regulation,

the person claiming limitation shall give notice thereof in writing

to every person making a claim against him, specifying the date of

payment in, the amount paid in, the amount of interest included

therein and the period to which it relates.

(7) The person claiming limitation shall also give notice in

writing to every person making a claim against him, of any excess

amount paid out to him under subregulation (4)(b).

Where the release of a ship or other property is ordered

under paragraph (2) of Article 13 of the Convention, the person on

whose application it is ordered to be released shall be deemed to

have submitted to the jurisdiction of the Civil Court, First Hall, to

adjudicate on the claim for which the ship or property was arrested.

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