CHAPTER
281
MERCHANT SHIPPING (MARITIME CLAIMS LIMITATION OF LIABILITY) |
ARRANGEMENT OF
SECTIONS |
SECTION |
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Scheduled Convention to have effect subject to
provisions of Part II of the First Schedule. |
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FIRST SCHEDULE - Convention relating to the Carriage of
Passengers and their Luggage by Sea (1974 Protocol, as amended in consequence
of the Protocol of 19th November, 1976). |
SECOND SCHEDULE - Convention on Limitation of Liability for
Maritime Claims, 1976. |
CHAPTER 281 |
MERCHANT SHIPPING
(MARITIME CLAIMS LIMITATION OF LIABILITY) |
An Act to
make amendments to the law relating to carriage by sea and liability of
shipowners and salvors. | 17 of 1989
3 of 1991 |
[Assent 17th August,
1989]
[Commencement 1 November, 1989] |
1. This Act may be cited as the Merchant Shipping
(Maritime Claims Limitation of Liability) Act, 1989. | Short title. |
2. (1) The provisions of the Convention Relating to the
Carriage of Passengers and their Luggage by Sea 1974 and the 1976 Protocol
relating thereto as set out in Part I of the First Schedule (hereafter in this
section and in the First Schedule referred to as "the Convention")
shall have effect subject to the provisions of Part I of the First Schedule. | Scheduled Convention to have effect subject to
provisions of Part II of the First Schedule. |
(2) The provisions
of Part II of that Schedule shall have effect in connection with the Convention
and subsection (1) shall have effect subject to the provisions of that Part. |
(3) On and after
the date when this subsection and Part III [i]*
of the First Schedule come into force, Parts I and II of that Schedule shall
have the force of law in The Bahamas with the modifications in the said Part
III. |
3. (1) The provisions of the Convention on Limitation of
Liability for Maritime Claims 1976 as set out in Part I of the
Second Schedule (hereafter in this section and in Part II of that Schedule
referred to as "the Convention") shall have the force of law in The
Bahamas. | Limitation of liability. |
(2) The provisions
of Part II of that Schedule shall have effect in connection with the Convention
and subsection (1) shall have effect subject to the provisions of that Part. |
4. (1) Subject to subsection (3) the owner of a Bahamian
ship shall not be liable for any loss or damage in the following cases, namely- | Exclusion of liability. |
(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) where the loss or damage arises from anything done or omitted by
any person in his capacity as 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) 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 in Part I of the Second Schedule. |
(4) In this
section "owner", in relation to a ship, includes any part owner and
any charterer, manager or operator of the ship. |
5. This Act shall bind the Crown. | Act to bind the Crown. |
6. This Act shall be construed as one with the
Merchant Shipping Act. | Construction of Act. |
FIRST SCHEDULE (Section 2) |
CONVENTION
RELATING TO THE CARRIAGE OF PASSENGERS AND THEIR LUGGAGE BY SEA (1974 PROTOCOL,
AS AMENDED IN CONSEQUENCE OF THE PROTOCOL OF 19TH NOVEMBER, 1976) |
PART I
TEXT OF CONVENTION RELATING TO THE CARRIAGE OF PASSENGERS
AND THEIR LUGGAGE BY SEA |
ARTICLE 1
Definitions |
In this Convention
the following expressions have the meaning hereby assigned to them: |
1.(a) "carrier"
means a person by or on behalf of whom a contract of carriage has been
concluded, whether the carriage is actually performed by him or by a performing
carrier; |
(b) "performing
carrier" means a person other than the carrier, being the owner, charterer
or operator of a ship, who actually performs the whole or a part of the
carriage; |
2. "contract
of carriage" means a contract made by or on behalf of a carrier for the
carriage by sea of a passenger or of a passenger and his luggage, as the case
may be; |
3. "ship"
means only a seagoing vessel, excluding an air-cushion vehicle; |
4.
"passenger" means any person carried in a ship: |
(a) under a
contract of 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 not governed by this
Convention; |
5.
"luggage" means any article or vehicle carried by the carrier under a
contract of carriage, excluding: |
(a) articles
and vehicles carried under a charter party, bill of lading or other contract
primarily concerned with the carriage of goods; and |
|
6. "cabin
luggage" means luggage which the passenger has in his cabin or is
otherwise in his possession, custody or control. Except for the application of
paragraph 8 of this Article and Article 8, cabin luggage includes luggage which
the passenger has in or on his vehicle; |
7. "loss of
or damage to luggage" includes pecuniary loss resulting from the luggage
not having been re-delivered to the passenger within a reasonable time after
the arrival of the ship on which the luggage has been or should have been
carried, but does not include delays resulting from labour disputes; |
8.
"carriage" covers the following periods: |
(a) with regard
to the passenger and his cabin luggage, the period during which the passenger
and/or his cabin luggage are on board the ship or in the course of embarkation
or disembarkation, and the period during which the passenger and his cabin
luggage are transported by water from land to the ship or vice versa, if
the cost of such transport is included in the fare or if the vessel used for
the purpose of auxiliary transport has been put at the disposal of the
passenger by the carrier. However, with regard to the passenger, carriage does
not include the period during which he is in a marine terminal or station or on
a quay or in or on any other port installation; |
(b) with regard
to cabin luggage, also the period during which the passenger is in a marine
terminal or station or on a quay or in or on any other port installation if
that luggage has been taken over by the carrier or his servant or agent and has
not been re-delivered to the passenger; |
(c) with regard
to other luggage which is not cabin luggage, the period from the time of its
taking over by the carrier or his servant or agent onshore or on board until
the time of its re-delivery by the carrier or his servant or agent; |
9.
"international carriage" means any carriage in which, according to
the contract of carriage, the place of departure and the place of destination
are situated in two different States, or in a single State if, according to the
contract of carriage or the scheduled itinerary, there is an intermediate port
of call in another State. |
ARTICLE 2
Application |
1. This
Convention shall apply to any international carriage if: |
(a) the ship is
flying the flag of or is registered in a State Party to this Convention, or |
(b) the
contract of carriage has been made in a State Party to this Convention, or |
(c) the place
of departure or destination, according to the contract of carriage, is a State
Party to this Convention. |
2. Notwithstanding
paragraph 1 of this Article, this Convention shall not apply when the carriage
is subject, under any other international convention concerning the carriage of
passengers or luggage by another mode of transport, to a civil liability regime
under the provisions of such convention, in so far as those provisions have
mandatory application to carriage by sea. |
ARTICLE 3
Liability of the Carrier |
1. The carrier
shall be liable for the damage suffered as a result of the death of or personal
injury to a passenger and the loss or damage to luggage if the incident which
caused the damage so suffered occurred in the course of the carriage and was
due to the fault or neglect of the carrier or of his servants or agents acting
within the scope of their employment. |
2. The burden of
proving that the incident which caused the loss or damage occurred in the
course of the carriage, and the extent of the loss or damage, shall lie with
the claimant. |
3. Fault or
neglect of the carrier or of his servants or agents acting within the scope of
their employment shall be presumed, unless the contrary is proved, if the death
of or personal injury to the passenger or the loss of or damage to cabin
luggage arose from or in connection with the shipwreck, collision, stranding,
explosion or fire, or defect in the ship. In respect of loss of or damage to
other luggage, such fault or neglect shall be presumed, unless the contrary is
proved, irrespective of the nature of the incident which caused the loss or
damage. In all other cases the burden of proving fault or neglect shall lie
with the claimant. |
ARTICLE 4
Performing Carrier |
1. If the
performance of the carriage or part thereof has been entrusted to a performing
carrier, the carrier shall nevertheless remain liable for the entire carriage
according to the provisions of this Convention. In addition, the performing
carrier shall be subject and entitled to the provisions of this Convention for
the part of the carriage performed by him. |
2. The carrier
shall, in relation to the carriage performed by the performing carrier, be
liable for the acts and omissions of the performing carrier and of his servants
and agents acting within the scope of their employment. |
3. Any special
agreement under which the carrier assumes obligations not imposed by this
Convention or any waiver of rights conferred by this Convention shall affect
the performing carrier only if agreed by him expressly and in writing. |
4. Where and to
the extent that both the carrier and the performing carrier are liable, their
liability shall be joint and several. |
5. Nothing in this
Article shall prejudice any right of recourse as between the carrier and the
performing carrier. |
ARTICLE 5
Valuables |
The carrier shall
not be liable for the loss of or damage to monies, negotiable securities, gold,
silverware, jewellery, ornaments, works of art, or other valuables, except
where such valuables, have been deposited with the carrier for the agreed
purpose of safekeeping in which case the carrier shall be liable up to the
limit provided for in paragraph 3 of Article 8 unless a higher limit is agreed
upon in accordance with paragraph 1 of Article 10. |
ARTICLE 6
Contributory Fault |
If the carrier
proves that the death of or personal injury to a passenger or the loss of or
damage to his luggage was caused or contributed to by the fault or neglect of
the passenger, the court seized of the case may exonerate the carrier wholly or
partly from his liability in accordance with the provisions of the law of that
court. |
ARTICLE 7
Limit of Liability for Personal Injury |
1. The liability
of the carrier for the death of or personal injury to a passenger shall in no
case exceed 46,666 units of account
per carriage. Where in accordance with the law of the court seized of the case
damages are awarded in the form of periodical income payments, the equivalent
capital value of those payments shall not exceed the said limit. |
2. Notwithstanding
paragraph 1 of this Article, the national law of any State Party to this
Convention may fix, as far as carriers who are nationals of such State are
concerned, a higher per capita limit of liability. |
ARTICLE 8
Limit for Liability for Loss of or Damage to Luggage |
1. The liability
of the carrier for the loss of or damage to cabin luggage shall in no case
exceed 833 units of account per passenger,
per carriage. |
2. The liability
of the carrier for the loss of or damage to vehicles including all luggage
carried in or on the vehicle shall in no case exceed
3,333 units of account per vehicle, per carriage. |
3. The liability
of the carrier for the loss of or damage to luggage other than that mentioned
in paragraphs 1 and 2 of this Article shall in no case exceed 1,200 units of account per passenger per
carriage. |
4. The carrier and
the passenger may agree that the liability of the carrier shall be subject to a
deductible not exceeding 117 units
of account in the case of damage to a vehicle and not exceeding 13 units of
account per passenger in the case of loss of or damage to other luggage, such
sum to be deducted from the loss or damage. |
ARTICLE 9
Unit of Account and Conversion |
The Unit of
Account mentioned in this Convention is the Special Drawing Right as defined by
the International Monetary Fund. The amounts mentioned in Articles 7 and 8
shall be converted into the national currency of the State of the Court seized
of the case on the basis of the value of that currency on the date of the
judgment or the date agreed upon by the Parties. |
ARTICLE 10
Supplementary Provisions on Limits of Liability |
1. The carrier and
the passenger may agree, expressly and in writing, to higher limits of
liability than those prescribed in Articles 7 and 8. |
2. Interest on
damages and legal costs shall not be included in the limits of liability
prescribed in Articles 7 and 8. |
ARTICLE 11
Defences and Limits for Carriers' Servants |
If an action is
brought against a servant or agent of the carrier or of the performing carrier
arising out of damage covered by this Convention, such servant or agent, if he
proves that he acted within the scope of his employment, shall be entitled to
avail himself of the defences and limits of liability which the carrier or the
performing carrier is entitled to invoke under this Convention. |
ARTICLE 12
Aggregation of Claims |
1. Where the
limits of liability prescribed in Articles 7 and 8 take effect, they shall
apply to the aggregate of the amounts recoverable in all claims arising out of
the death of or personal injury to any one passenger or the loss of or damage
to his luggage. |
2. In relation to
the carriage performed by a performing carrier, the aggregate of the amounts recoverable
from the carrier and the performing carrier and from their servants and agents
acting within the scope of their employment shall not exceed the highest amount
which could be awarded against either the carrier or the performing carrier
under this Convention, but none of the persons mentioned shall be liable for a
sum in excess of the limit applicable to him. |
3. In any case
where a servant or agent of the carrier or of the performing carrier is
entitled under Article 11 of this Convention to avail himself of the limits of
liability prescribed in Articles 7 and 8, the aggregate of the amounts
recoverable from the carrier, or the performing carrier as the case may be, and
from that servant or agent, shall not exceed those limits. |
ARTICLE 13
Loss of Right to Limit Liability |
1. The carrier
shall not be entitled to the benefit of the limits of liability prescribed in
Articles 7 and 8 and paragraph 1 of Article 10, if it is proved that the damage
resulted from an act or omission of the carrier done with the intent to cause
such damage, or recklessly and with knowledge that such damage would probably
result. |
2. The servant or
agent of the carrier or of the performing carrier shall not be entitled to the
benefit of those limits if it is proved that the damage resulted from an act or
omission of that servant or agent done with the intent to cause such damage, or
recklessly and with knowledge that such damage would probably result. |
ARTICLE 14
Basis for Claims |
No action for
damages for the death of or personal injury to a passenger, or for the loss of
or damage to luggage, shall be brought against a carrier or performing carrier
otherwise than in accordance with this Convention. |
ARTICLE 15
Notice of Loss or Damage to Luggage |
1. The passenger
shall give written notice to the carrier or his agent: |
(a) in the case
of apparent damage to luggage: |
(i) for
cabin luggage, before or at the time of disembarkation of the passenger; |
(ii) for
all other luggage, before or at the time of its re-delivery; |
(b) in the case
of damage to luggage which is not apparent, or loss of luggage, within fifteen
days from the date of disembarkation or re-delivery or from the time when such
re-delivery should have taken place. |
2. If the
passenger fails to comply with this Article, he shall be presumed, unless the
contrary is proved, to have received the luggage undamaged. |
3. The notice in
writing need not be given if the condition of the luggage has at the time of
its receipt been the subject of joint survey or inspection. |
ARTICLE 16
Time-bar for Actions |
1. Any action for
damages arising out of the death of or personal injury to a passenger or for
the loss of or damage to luggage shall be time-barred after a period of two
years. |
2. The limitation
period shall be calculated as follows: |
(a) in the case
of personal injury, from the date of disembarkation of the passenger; |
(b) in the case
of death occurring during carriage, from the date when the passenger should
have disembarked, and in the case of personal injury occurring during carriage
and resulting in the death of the passenger after disembarkation, from the date
of death, provided that this period shall not exceed three years from the date
of disembarkation; |
(c) in the case
of loss of or damage to luggage, from the date of disembarkation or from the
date when disembarkation should have taken place, whichever is later. |
3. The law of the
court seized of the case shall govern the grounds of suspension and
interruption of limitation periods, but in no case shall an action under this
Convention be brought after the expiration of a period of three years from the
date of disembarkation of the passenger or from the date when disembarkation
should have taken place, whichever is later. |
4. Notwithstanding
paragraphs 1, 2 and 3 of this Article, the period of limitation may be extended
by a declaration of the carrier or by agreement of the parties after the cause
of action has arisen. The declaration or agreement shall be in writing. |
ARTICLE 17
Competent Jurisdiction |
1. An action
arising under this Convention shall, at the option of the claimant, be brought
before one of the courts listed below, provided that the court is located in a
State Party to this Convention: |
(a) the court
of the place of permanent residence or principal place of business of the
defendant, or |
(b) the court
of the place of departure or that of the destination according to the contract
of carriage; or |
(c) a court of
the State of the domicile or permanent residence of the claimant, if the
defendant has a place of business and is subject to jurisdiction in that State,
or |
(d) a court of
the State where the contract of carriage was made, if the defendant has a place
of business and is subject to jurisdiction in that State. |
2. After the
occurrence of the incident which has caused the damage, the parties may agree
that the claim for damages shall be submitted to any jurisdiction or to
arbitration. |
ARTICLE 18
Invalidity of Contractual Provisions |
Any contractual
provision concluded before the occurrence of the incident which has caused the
death of or personal injury to a passenger or the loss of or damage to his
luggage, purporting to relieve the carrier of his liability towards the
passenger or to prescribe a lower limit of liability than that fixed in this
Convention except as provided in paragraph 4 of Article 8, and any such
provision purporting to shift the burden of proof which rests on the carrier,
or having the effect of restricting the option specified in paragraph 1 of
Article 17, shall be null and void, but the nullity of that provision shall not
render void the contract of carriage which shall remain subject to the
provisions of this Convention. |
ARTICLE 19
Other Conventions on Limitation of Liability |
This Convention
shall not modify the rights or duties of the carrier, the performing carrier,
and their servants or agents provided for in international conventions relating
to the limitation of liability of owners of seagoing ships. |
ARTICLE 20
Nuclear Damage |
No liability shall
arise under this Convention for damage caused by a nuclear incident: |
(a) if the
operator of a nuclear installation is liable for such damage under either the
Paris Convention of 29 July 1960 on Third Party Liability in the Field of
Nuclear Energy as amended by its Additional Protocol of 28 January 1964, or the
Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or |
(b) if the
operator of a nuclear installation is liable for such damage by virtue of a
national law governing the liability for such damage, provided that such law is
in all respects as favourable to persons who may suffer damage as either the
Paris or the Vienna Conventions. |
ARTICLE 21
Commercial Carriage by Public Authorities |
This Convention
shall apply to commercial carriage undertaken by States or Public Authorities
under contracts of carriage within the meaning of Article 1. |
PART II
PROVISIONS HAVING EFFECT IN CONNECTION WITH CONVENTION |
Interpretation |
1. In this Part of
this Schedule any reference to a numbered Article is a reference to the article
of the Convention which is so numbered and any expression to which a meaning is
assigned by Article 1 of the Convention has that meaning. |
Provisions
Adapting or Supplementing Specified Articles of the Convention |
2. For the
purposes of paragraph 2 of Article 2, provisions of such an international
convention as is mentioned in that paragraph which apart from this paragraph do
not have mandatory application to carriage by sea shall be treated as having
mandatory application to carriage by sea if it is stated in the contract of
carriage for the carriage in question that those provisions are to apply in
connection with the carriage. |
3. The reference
to the law of the court in Article 6 shall be construed as a reference to the
Contributory Negligence Act Chapter 75 of the Laws of The Bahamas. |
4. The Minister
may by order provide that, in relation to a carrier whose principal place of
business is in The Bahamas, paragraph 1 of Article 7 shall have effect with the
substitution for the limit for the time being specified in that paragraph of a
different limit specified in the order (which shall not be lower than the limit
specified in that paragraph at the passing of this Act or, if paragraph 1 of
Part III [ii]*
of this Schedule has come into force, specified in paragraph 1 of Article 7 as
amended by paragraph 1 of that Part). |
5. (1) For the purpose of converting from
special drawing rights into dollars the amounts mentioned in Articles 7 and 8
of the Convention in respect of which a judgment is given, one special drawing
right shall be treated as equal to such a sum in dollars as the International
Monetary Fund have fixed as being the equivalent of one special drawing right
for- |
(a) the day on
which the judgment is given; or |
(b) if no sum
has been so fixed for that day, the last day before that day for which a sum
has been so fixed. |
(2) A
certificate given by or on behalf of the Central Bank stating- |
(a) that a
particular sum in dollars has been fixed as mentioned in the preceding
subparagraph for a particular day; or |
(b) that no sum
has been so fixed for that day and a particular sum in dollars has been so
fixed for a day which is the last day for which a sum has been so fixed before
the particular day, |
shall be
conclusive evidence of those matters for the purposes of Articles 7 to 9 of the
Convention; 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. |
6. It is hereby
declared that by virtue of Article 12 the limitations on liability there
mentioned in respect of a passenger or his luggage apply to the aggregate
liabilities of the persons in question in all proceedings for enforcing the
liabilities or any of them which may be brought whether in The Bahamas or
elsewhere. |
7. (a) Article 16
shall apply to an arbitration as it applies to an action. |
(b) For the
purpose of Article 16, an arbitration shall be deemed to be commenced when one
party to the arbitration serves on the other party or parties a notice
requiring him or them to appoint an arbitrator or to agree to the appointment
of an arbitrator, or, where the arbitration agreement provides that the
reference shall be to a person named or designated in the agreement, requiring
him or them to submit the dispute to the person so named or designated. |
(c) Any such
notice as aforesaid may be served either- |
(i) by
delivering it to the person on whom it is to be served; or |
(ii) by
leaving it at the usual or last known place of abode in The Bahamas of that person;
or |
(iii) by
sending it by post in a registered letter addressed to that person at his usual
or last known place of abode in The Bahamas; |
as well as
in any other manner provided in the arbitration agreement; and where a notice
is sent by post in manner prescribed by paragraph (c), service thereof shall,
unless the contrary is proved, be deemed to have been effective at the time at
which the letter would have been delivered in the ordinary course of post. |
8. The court
before which proceedings are brought in pursuance of Article 17 to enforce a
liability which is limited by virtue of Article 12 may at any stage of the
proceedings make such orders as appear to the court to be just and equitable in
view of the provisions of Article 12 and of any other proceedings which have
been or are likely to be begun in The Bahamas or elsewhere to enforce the
liability in whole or in part; and without prejudice to the generality of the
preceding provisions of this paragraph such a court shall, where the liability
is or may be partly enforceable in other proceedings in The Bahamas or
elsewhere, have jurisdiction to award an amount less than the court would have
awarded if the limitation applied solely to the proceedings before the court or
to make any part of its award conditional on the results of any other
proceedings. |
Other Provisions
Adapting or Supplementing the Convention |
9. Any reference
in The Convention to a contract of carriage excludes a contract of carriage
which is not for reward. |
10. If the
Minister by Order declares that any State specified in the Order is a party to
the Convention in respect of a particular country the Order shall, subject to
the provisions of any subsequent Order made by virtue of this, paragraph, be
conclusive evidence that the State is a party to the Convention in respect of
that country. |
11. The Minister
may by order make provision- |
(a) for
requiring a person who is the carrier in relation to a passenger to give to the
passenger, in a manner specified in the order, notice of such of the provisions
of Part I of this Schedule as are so specified; |
(b) for a
person who fails to comply with a requirement imposed on him by the order to be
guilty of an offence and liable on summary conviction to a fine of an amount
not exceeding one thousand dollars. |
Application of
sections 3 and 4 of this Act |
12. Nothing in
section 4 of this Act (which among other things limits a shipowner's liability
for loss or damage of goods in certain cases) shall relieve a person of any
liability imposed on him by the Convention. |
13. It is hereby
declared that nothing in the Convention affects the operation of section 3 of
this Act (which limits a shipowner's liability in certain cases of loss of
life, injury or damage). |
SECOND SCHEDULE (Section 3) |
CONVENTION ON
LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976 |
PART I
TEXT OF CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS |
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 |
1. Subject to
Articles 3 and 9 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 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 minimise 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 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 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 to 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 |
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) 333,000
Units of Account for a ship with a tonnage not exceeding 500 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 501 to 3,000 tons, 500 Units of Account; for
each ton from 3,001 to 30,000 tons, 333 Units of Account; for each ton from
30,001 to 70,000 tons, 250 Units of Account and for each ton in excess of
70,000 tons, 167 Units of Account, |
(b) in respect
of any other claims, |
(i) 167,000
Units of Account for a ship with a tonnage not exceeding 500 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 501 to 30,000 tons, 167 Units of Account, for
each ton from 30,001 to 70,000 tons, 125 Units of Account and for each ton in
excess of 70,000 tons, 83 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). |
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. |
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 46,666 Units of Account multiplied by the number of passengers
which the ship is authorised to carry according to the ship's certificate, but
not exceeding 25 million Units of Account. |
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 |
1. 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 |
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 II 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 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 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 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: |
(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 |
This Convention
shall apply whenever any person referred to in Article I 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 |
1. In this
Part of this Schedule any reference to a numbered Article is a reference to the
Article of the Convention which is so numbered. | Interpretation. |
2. 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 shall be construed accordingly. | Right to limit liability. |
3. (1)
Paragraph 1(d) of Article 2 shall not apply unless provision has been made by
an order of the Minister for the setting up and management of a fund to be used
for the making to harbour or conservancy authorities of payments needed to
compensate them for the reduction, in consequence of the said paragraph 1(d),
of amounts recoverable by them in claims of the kind there mentioned, and to be
maintained by contributions from such authorities raised and collected by them
in respect of vessels in like manner as other sums so raised by them. | Claims subject to limitation. |
(2) Any order
under subparagraph (1) above may contain such incidental and supplemental
provisions as appear to the Minister to be necessary or expedient. |
4. (1) The
claims excluded from the Convention by paragraph (b) of Article 3 are claims
in respect of any liability incurred under section 20 of the Merchant Shipping
(Oil Pollution) Act, Chapter 275. | Claims excluded from limitation. |
(2) The claims
excluded from the Convention by paragraph (c) of Article 3 are claims made by
virtue of either of sections 10 and 11 of the Nuclear Installations Act 1965
(U.K.) as extended to The Bahamas by the Nuclear Installations (Bahamas) Order,
1972, modified and adapted as in the Schedule thereto. |
5. (1) In
the application of Article 6 to a ship with a tonnage less than 300 tons that
Article shall have effect as if- | The general limits. |
(a) paragraph
(a)(i) referred to 166,667 Units of Account; and |
(b) paragraph
(b)(i) referred to 83,333 Units of Account. |
(2) For the
purposes of Article 6 and this paragraph a ship's tonnage shall be its gross
tonnage calculated in such manner as may be prescribed by an order made by the
Minister. |
(3) Any order
under this paragraph shall, so far as appears to the Minister to be
practicable, give effect to the regulations in Annex 1 of the International
Convention on Tonnage Measurement of Ships 1969. |
6. (1) In
the case of a passenger steamer within the meaning of Part IV of the
Merchant Shipping Act, the ship's certificate mentioned in paragraph 1 of
article 7 shall be the certificate issued under section 16 of that Act. | Limit for passenger claims. |
(2) In paragraph 2
of Article 7 the reference to claims brought on behalf of a person. includes a
reference to any claim in respect of the death of a person under the Fatal
Accidents Act Chapter 71 of the Laws of The Bahamas. |
7. (1) For
the purpose of converting the amounts mentioned in Articles 6 and 7 from
special drawing rights into dollars one special drawing right shall be treated
as equal to such a sum in dollars as the International Monetary Fund have fixed
as being the equivalent of one special drawing right for- | Units of account. |
(a) the
relevant date under paragraph 1 of Article 8; 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 Central Bank stating- |
(a) that a
particular sum in dollars has been fixed as mentioned in the preceding
subparagraph for a particular date; or |
(b) that no sum
has been so fixed for that date and that a particular sum in dollars has been
so fixed for a date 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 these Articles; 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. |
8. (1) The
Minister may, from time to time, with the concurrence of the Central Bank, by
order prescribe the rate of interest to be applied for the purposes of
paragraph 1 of Article II. | Constitution of fund. |
(2) 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 claims arising out of that occurrence which are pending against
the person by whom the fund has been constituted. |
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. | Distribution of fund. |
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. | Bar to other actions. |
11.
References in the Convention and the preceding provisions of this Part of this
Schedule to the court are, in relation to The Bahamas, references to the
Supreme Court. | Meaning of "court". |
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 "ship". |
13. An
order made by the Minister 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. | Meaning of "State party". |