The Merchant Shipping (Limitation of Liability for Maritime Claims) (Overseas Territories) Order 1997

Made: 30th October 1997

Coming into force: 30th November 1997

At the Court at Buckingham Palace, the 30th day of October 1997 Present, The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred on Her by section 315(2) of the Merchant Shipping Act 1995¹ and all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—

Citation and commencement

1

This Order may be cited as the Merchant Shipping (Limitation of Liability for Maritime Claims) (Overseas Territories) Order 1997 and shall come into force on 30th November 1997.

Implementation of the Limitation of Liability Convention

2

Sections 185 and 186 of and Schedule 7 to the Merchant Shipping Act 1995 shall extend to each of the Territories listed in Schedule 1 to this Order subject to the exceptions, adaptations and modifications specified in Schedule 2 to this Order; and any instrument made, or to be made, under paragraphs 3, 5(2), 8(1) or 13 of Part II of Schedule 7 to the Act shall also extend to each Territory.

Interpretation

3

In this Order, “the Territory” means any of the territories listed in Schedule 1 to this Order.

SCHEDULE 1 TO THE ORDER

• Anguilla

• British Antarctic Territory

• British Indian Ocean Territory

• South Georgia and the South Sandwich Islands

SCHEDULE 2 TO THE ORDER — SECTIONS 185 AND 186 OF THE MERCHANT SHIPPING ACT 1995

Limitation of liability of shipowners, etc and salvors for maritime claims

Limitation of liability of maritime claims

185

• (1) The provisions of the Convention on Limitation of Liability for Maritime Claims 1976 as set out in Part I of Schedule 7 (in this section and Part II of that Schedule referred to as “the Convention”) shall have the force of law in the Territory.

• (2) The provisions of Part II of that Schedule shall have effect in connection with the Convention, and subsection (1) above shall have effect subject to the provisions of that Part.

• (3) The provisions having the force of law under this section shall apply in relation to Her Majesty’s ships as they apply in relation to other ships.

• (4) The provisions having the force of law under this section shall not apply to any liability in respect of loss of life or personal injury caused to, or loss of or damage to any property of, a person who is on board the ship in question or employed in connection with that ship or with the salvage operations in question if—

• (a) he is so on board or employed under a contract of service governed by the law of the Territory; and

• (b) the liability arises from an occurrence which took place after the commencement of this Order.

In this subsection, “ship” and “salvage operations” have the same meaning as in the Convention.

Exclusion of liability

186

• (1) Subject to subsection (3) below, the owner of a British ship shall not be liable for any loss or damage in the following cases, namely—

• (a) where any property on board the ship is lost or damaged by reason of fire on board the ship; or

• (b) where any gold, silver, watches, jewels or precious stones on board the ship are lost or damaged by reason of theft, robbery or other dishonest conduct and their nature and value were not at the time of shipment declared by their owner or shipper to the owner or master of the ship in the bill of lading or otherwise in writing.

• (2) Subject to subsection (3) below, where the loss or damage arises from anything done or omitted by an person in his capacity of master or member of the crew or (otherwise than in that capacity) in the course of his employment as a servant of the owner of the ship, subsection (1) above shall also exclude the liability of—

• (a) the master, member of the crew or servant; and

• (b) in a case where the master or member of the crew is the servant of a person whose liability would not be excluded by that subsection apart from this paragraph, the person whose servant he is.

• (3) This section does not exclude the liability of any person for any loss or damage resulting from any such personal act or omission of his as is mentioned in Article 4 of the Convention set out in Part I of Schedule 7.

• (4) This section shall apply in relation to Her Majesty’s ships as it applies in relation to other ships.

• (5) In this section “owner”, in relation to a ship, includes any part owner and any charterer, manager or operator of the ship.

SCHEDULE 7 TO THE MERCHANT SHIPPING ACT 1995 — CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976

PART I — TEXT OF CONVENTION

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 or 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

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 29th 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

ARTICLE 7 — The limit for passenger claims

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.

ARTICLE 9 — Aggregation of claims

ARTICLE 10 — Limitation of liability without constitution of a limitation fund

CHAPTER III. — THE LIMITATION FUND

ARTICLE 11 — Constitution of the Fund

ARTICLE 12 — Distribution of the fund

ARTICLE 13 — Bar to other actions

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

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.

PART II — PROVISIONS HAVING EFFECT IN CONNECTION WITH CONVENTION

Interpretation

Right to limit liability

Claims subject to limitation

Claims excluded from limitation

The general limits

Limit for passenger claims

Units of Account

Constitution of fund

8

• (1) The Secretary of State may, with the concurrence of the Treasury, by order prescribe the rate of interest to be applied for the purposes of paragraph 1 of article 11.

• (2) …

• (3) Where a fund is constituted with the court in accordance with article 11 for the payment of claims arising out of any occurrence, the court may stay any proceedings relating to any claim arising out of that occurrence which are pending against the person by whom the fund has been constituted.

Distribution of fund

9

No lien or other right in respect of any ship or property shall affect the proportions in which under article 12 the fund is distributed among several claimants.

Bar to other actions

10

Where the release of a ship or other property is ordered under paragraph 2 of article 13 the person on whose application it is ordered to be released shall be deemed to have submitted to… the jurisdiction of the court to adjudicate on the claim for which the ship or property was arrested or attached.

Meaning of “court”

11

References in the Convention and the preceding provisions of this Part of this Schedule to the court are references to—

• (a) the High Court, in Anguilla;

• (b) the Supreme Court, in the British Antarctic Territory;

• (c) the Supreme Court, in the British Indian Ocean Territory.

• (d) the Supreme Court, in South Georgia and the South Sandwich Islands.

Meaning of “ship”

12

References in the Convention and in the preceding provisions of this Part of this Schedule to a ship include references to any structure (whether completed or in course of completion) launched and intended for use in navigation as a ship or part of a ship.

Meaning of “State Party”

13

An Order in Council made for the purposes of this paragraph and declaring that any State specified in the Order is a party to the Convention shall, subject to the provisions of any subsequent Order made for those purposes, be conclusive evidence that the State is a party to the Convention.

Signed

N. H. Nicholls — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

This Order gives effect in Anguilla, the British Antarctic Territory, the British Indian Ocean Territory and South Georgia and the South Sandwich Islands to the Convention on Limitation of Liability for Maritime Claims 1976, which lays down uniform rules relating to the liability of shipowners and salvors in respect of certain maritime claims.

Footnotes