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Shipping (Limitation of Liability) Act

LAWS OF TONGA

[1988 Ed.]

CHAPTER 143

SHIPPING (LIMITATION OF LIABILITY)

Act 15 of 1979

AN ACT TO LIMIT THE LIABILITY OF SHIPOWNERS FOR LOSS OF LIFE, PERSONAL INJURY, DAMAGE OR LOSS OF PROPERTY OCCURRING WITHOUT THEIR FAULT

Commencement: [30th April, 1980]

Short title

1. This Act may be cited as The Shipping (Limitation of Liability) Act.

Limitation of Liability of ship owners.

2. The owners of a ship, Tongan, Commonwealth or foreign, shall not, where all or any of the following occurrences take place without their actual fault or privity (that is to say):

(a) where any loss of life or personal injury is caused to any person being carried in the ship;

(b) where any damage or loss is caused to any goods, merchandise or other things whatsoever on board the ship;

(c) where any loss of life or personal injury is caused to any person not carried in the ship through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship or in the loading, carriage or discharge of its cargo, or in the embarkation, carriage or disembarkation of its passengers, or through any other act or omission of any person on board the ship;

(d) where any loss or damage is caused to any property (other than any property mentioned in paragraph (b) of this section) or any rights are infringed through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship or in the loading, carriage or discharge of its cargo, or in the embarkation, carriage or disembarkation of its passengers, or through any other act or omission of any person on board the ship;

be liable to damages beyond the amounts set forth in the Schedule to this Act.

Tongan Currency equivalent.

3. For the purpose of the equivalence of these amounts in Tongan currency the Minister of Finance may from time to time or upon application to him issue a certificate certifying such equivalence.

Liability in connection with salvage and damage to harbour works etc.

4. (1) For the purposes of section 2 where any obligation or liability arises:

(a) in connection with the raising, removal or destruction of any ship which is sunk, stranded or abandoned or of anything on board such a ship; or

(b) in respect of any damage (however caused) to harbour works, basins or navigable waterways,

the occurrence giving rise to the obligation shall be treated as one of the occurrences mentioned in that section and the obligation or liability as a liability to damages.

(2) The liability to damages under this section shall not be subject to limitation as provided for in this Act.

(3) The application of this section shall not be excluded by reason only that the occurrence giving rise to the liability was not due to the negligence of any person.

Charterer, manager, operator etc.

5. (1) The persons whose liability is limited under this Act shall include any charterer and any person interested in or in possession of the ship, and, in particular, any manager or operator of the ship.

(2) In relation to a claim arising from the act or omission of 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 owners or of any such person as is mentioned in subsection (1) of this section:-

(a) the person whose liability is limited as aforesaid shall also include the master, member of the crew or servant, and, in a case where the master or member of the crew is the servant of a person whose liability would not be limited apart from this paragraph, the person whose servant he is; and

(b) the liability of the master, member of the crew or servant himself shall be limited as aforesaid notwithstanding his actual fault or privity in that capacity.

Court may distribute among claimants.

6. Where any liability is alleged to arise to which this Act applies and several claims are made in respect of that liability, the owner may apply to the Supreme Court to determine the amount of his liability and the Court may distribute that amount rateably among the claimants.

Liability fund.

7. (1) Where any international convention to which Tonga is a party makes provisions for a liability fund the Supreme Court shall supervise such a fund and distribute it in accordance with the provisions of such a convention to be incorporated by Order in Council in the Schedule to this Act.

(2) The owner may, whether there is an international convention to which Tonga is a party or not, establish a liability fund in court which the Supreme Court shall administer and distribute in accordance with law and upon terms that it may direct.

(3) The Supreme Court may postpone the distribution of such part of the amount to be distributed as it deems appropriate having regard to any claims that may later be established before a court outside Tonga.

(4) No lien or other right in respect of any ship or property shall affect the proportions in which any amount is distributed among several claimants.

Other International Conventions on limits of liability.

8. (1) Should Tonga become a party to an international convention which prescribes different rules for liability than those in this Act, there shall be substituted for the provisions of this Act and the Schedule thereto such different rules in the cases to which such an international convention applies.

(2) Such substitution shall be effected by Order-in-Council.

(3) If the Minister of Marine certifies that a State is a contracting party to such an international Convention the certificate shall be conclusive evidence of the matters certified, and the convention shall be applied accordingly pursuant to this section.

Savings.

9. This Act does not affect the provisions of section 5 of the Carriage of Passengers and Luggage by Sea Act as they apply in the case of persons to which the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea apply.

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SCHEDULE

The amounts to which the owner of a ship may limit his liability under this Act shall be:

(a) where the occurrence has only given rise to property claims an aggregate amount of 1,000 francs for each ton of the ship's tonnage;

(b) where the occurrence has only given rise to personal claims an aggregate amount of 3,100 francs for each ton of the ship's tonnage;

(c) where the occurrence has given rise both to personal claims and property claims an aggregate amount of 3,100 francs for each ton of the ship's tonnage, of which a first portion amounting to 2,100 francs for each ton of the ship's tonnage shall be exclusively appropriated to the payment of personal claims and of which a second portion amounting to 1,000 francs for each ton of the ship's tonnage shall be appropriated to the payment of property claims:

Provided however that in cases where the first portion is insufficient to pay the personal claims in full, the unpaid balance of such claims shall rank rateably with the property claims for payment against the second portion of the fund.

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