Hong Kong Lawyer

August 2017

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Page 49 of 99

INDUSTRY INSIGHTS 業 界 透 視 ADMIRALTY Shipowners' Limitation Actions and Funds The Eleni, HCAJ 189/2013, 9 May 2017, arises out of a collision at sea. The case considers the relevance of s. 7 ("Limitation of actions") of the Merchant Shipping (Collision Damage Liability and Salvage) Ordinance (Cap. 508) to the deadline specified for making claims against a shipowner's limitation fund. The judgment decides that the two-year limitation period in s. 7(1) of the Ordinance is properly protected by issuance of a writ in certain circumstances and not necessarily by the filing of a claim against a limitation fund. The judgment is an interesting review of the nature of a shipowner's limitation action. In certain circumstances, a shipowner and/or charterer that does not dispute liability can seek a declaration that their liability be limited in accordance with the Merchant Shipping (Limitation of Shipowners Liability) Ordinance (Cap. 434). At the time of setting-up the limitation fund in this case the Ordinance applied the Convention on Limitation of Liability for Maritime Claims 1976 (set out in Schedule 2 of the enabling legislation), which has subsequently been replaced with the updated 1996 Tonnage Convention. A "limitation action" is, therefore, usually an action by shipowner to limit its liability for major incidents at sea, including collisions or major cargo losses such as multiple containers falling overboard. Under the regime, in return for a payment into court a shipowner gets to limit its liability. The amount of security is calculated by reference to units of account (or special drawing rights) based on the ship's gross registered tonnage. A shipowner's limitation action begins with the issue of an in personam writ, which it will serve on a claimant affected by the incident, and concludes with the grant of or refusal to grant a "limitation decree". The court determines whether the shipowner has the right to limit its liability. There are very limited circumstances in which a claimant (such as a cargo owner) can object to the setting-up of the limitation fund. If a limitation decree is made, it will include (among other things) provision for an administrative deadline for the filing of claims (known as "references") against the fund. The limitation fund is constituted on the shipowner's payment into court of the fund with interest since the date of the incident. The regime for a shipowner's limitation fund is important. As the judgment in The Eleni notes (at para. 12): "Once the fund is constituted, the shipowner ceases to have any interest in disputing anybody's claim because he is liable only for the amount he has paid in, and that being so all competing claimants to the fund are entitled to dispute one another's claims against the fund. It is similar to the interpleader proceeding in which the interpleader brings the claimants to court and leaves it to them to resolve their rights over the subject matter of the interpleader." Andrew Horton, Partner, RPC 海事法 船東的局限法律責任的訴訟及 限制基金 The Elen i案(HCAJ 189/2013,2017年 5月9日)源於一宗海上撞船事件。涉案船 東設立了限制基金,對限制基金提出索償 設有特定的最後限期,在The Eleni案考慮 的,是《商船(碰撞損害法律責任及救助) 條例》(「《條例》」)(第508章)第7條 (「訴訟時效」)對特定最後限期限的相關 性。判決裁定,申索人不一定要對限制基 金提出索償,在某些情況,兩年內發出令 狀,也是妥當地守住了《條例》第7(1)條 的兩年時效期。 The Elen i 案的判決是對船東的局限法律責 任訴訟的性質進行一次覆檢,讀來有趣。 在某些情況,不爭議法律責任的船東及/ 或承租人,可以要求法庭宣告,按照《商 船(限制船東責任)條例》(第434章),其 法律責任是有限的。涉案限制基金設立之 時,《條例》應用《1976年海事索賠責 任限制公約》(在授權法例附表 2列出), 其後以最新的1996 Tonnage Convention 取而代之。 因此,「局限法律責任的訴訟」通常是由 船東提出的,目的是限制其在重大海上事 故的法律責任,重大海上事故包括碰撞 或貨物滅失,例如多個貨櫃從船上落入水 中。根據制度,船東向法庭繳存款項,以 換取對其法律責任作出限制。擔保金額是 根據船舶登記的總噸位,按計算單位(或 特別提款權)計算。 船東的局限法律責任的訴訟以發出對人訴 48 www.hk-lawyer.org •  August 2017

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