matters of liability are encapsulated by the so-called “global limitation” convention
regime. Furthermore, in the realm of the current convention law on global limitation,
in addition to shipowners, salvors are also entitled to limit liability. Indeed, the
convention definition of “shipowner” includes owner, charterer, operator and manager, thus further expanding the varieties of entities entitled to limit liability.
10
An important feature of limitation law is that the right associated with it is
considered to be substantive law, as it is entwined with the merits of the case, but
the quantum of limitation is a procedural matter and therefore subject to the lex fori.
In English law, however, the situation is different. In Caltex Singapore Pte and
Others v. B.P. Shipping Ltd.,
11 Clark J. held that in terms of English law, limitation
of liability would not be characterised as substantive law of Singapore to be
recognised as the lex loci delicti commissi for the purposes of proceedings in an
English court. An English court would apply the 1976 LLMC Convention as a part
of the lex fori.
12 It is submitted that this is anomalous at best since the merits of a case
on which liability, if any, is determined and consequently, the right to limit liability,
are substantive matters which should be subject to the lex causae. As stated by
Meeson and Kimbell, the legal position stated by Clarke J. and endorsed by others is
not wholly supported in other common law jurisdictions.
13
4 Limitation Regimes Under Conventions
This chapter is concerned with convention law, and in this vein, it must be noted that
two successive conventions were adopted in 1924 and 1957 respectively, in which
limitation of liability was granted exclusively to shipowners of sea-going ships; not
covering any others.
14 Among the specific subject matter IMO Conventions, the first
was the Nuclear Liability Convention of 1962
15 which has not yet entered into force.
In 1969, following the Torrey Canyon oil spill disaster of 1967, the Civil Liability
Convention (CLC) was adopted under the auspices of the International Maritime
Organization (IMO)
16 followed by the adoption of the companion instrument known
10 Convention on Limitation of Liability for Maritime Claims (LLMC), 1976, Article 1(2), 1456
UNTS 221.
11 [1996] 1 Lloyd’s Rep. 286.
12 See Meeson and Kimbell (2011), supra, note 3, pp. 290–291.
13 Id. p. 291.
14 International Convention for the Unification of Certain Rules Relating to the Limitation of
Liability of Owners of Sea-Going Ships, 1924, http://twmla.org/wp-content/uploads/2015/11/Lim
itation-Conventions-1924.pdf; and International Convention Relating to the Limitation of Liability
of Owners of Sea-Going Ships, 1957, 1412 UNTS 73.
15 Convention on the Liability of Operators of Nuclear Ships, 1962, 57 AJIL 268 (1963).
16 International Convention on Civil Liability for Oil Pollution Damage, 1969, 973 UNTS 3.
660
Y. Xia
regime. Furthermore, in the realm of the current convention law on global limitation,
in addition to shipowners, salvors are also entitled to limit liability. Indeed, the
convention definition of “shipowner” includes owner, charterer, operator and manager, thus further expanding the varieties of entities entitled to limit liability.
10
An important feature of limitation law is that the right associated with it is
considered to be substantive law, as it is entwined with the merits of the case, but
the quantum of limitation is a procedural matter and therefore subject to the lex fori.
In English law, however, the situation is different. In Caltex Singapore Pte and
Others v. B.P. Shipping Ltd.,
11 Clark J. held that in terms of English law, limitation
of liability would not be characterised as substantive law of Singapore to be
recognised as the lex loci delicti commissi for the purposes of proceedings in an
English court. An English court would apply the 1976 LLMC Convention as a part
of the lex fori.
12 It is submitted that this is anomalous at best since the merits of a case
on which liability, if any, is determined and consequently, the right to limit liability,
are substantive matters which should be subject to the lex causae. As stated by
Meeson and Kimbell, the legal position stated by Clarke J. and endorsed by others is
not wholly supported in other common law jurisdictions.
13
4 Limitation Regimes Under Conventions
This chapter is concerned with convention law, and in this vein, it must be noted that
two successive conventions were adopted in 1924 and 1957 respectively, in which
limitation of liability was granted exclusively to shipowners of sea-going ships; not
covering any others.
14 Among the specific subject matter IMO Conventions, the first
was the Nuclear Liability Convention of 1962
15 which has not yet entered into force.
In 1969, following the Torrey Canyon oil spill disaster of 1967, the Civil Liability
Convention (CLC) was adopted under the auspices of the International Maritime
Organization (IMO)
16 followed by the adoption of the companion instrument known
10 Convention on Limitation of Liability for Maritime Claims (LLMC), 1976, Article 1(2), 1456
UNTS 221.
11 [1996] 1 Lloyd’s Rep. 286.
12 See Meeson and Kimbell (2011), supra, note 3, pp. 290–291.
13 Id. p. 291.
14 International Convention for the Unification of Certain Rules Relating to the Limitation of
Liability of Owners of Sea-Going Ships, 1924, http://twmla.org/wp-content/uploads/2015/11/Lim
itation-Conventions-1924.pdf; and International Convention Relating to the Limitation of Liability
of Owners of Sea-Going Ships, 1957, 1412 UNTS 73.
15 Convention on the Liability of Operators of Nuclear Ships, 1962, 57 AJIL 268 (1963).
16 International Convention on Civil Liability for Oil Pollution Damage, 1969, 973 UNTS 3.
660
Y. Xia