Tasman Orient Line v. Alliance Group
In this case, the New Zealand High Court ordered that time charterers (and sub-time charterers) who acted as carriers under bills of lading, were entitled to limit their liability in accordance with the provisions of the London Convention 1976. It was not necessary, as a precondition to the granting of a decree of limitation that the applicant either admit liability or establish a limitation fund. Under the MTA, the court did not have power to order the establishment of such a fund. Where it had such power, it would be prepared to accept a letter of undertaking from a P&I Club member of the International Group, in place of a cash deposit.
DMC Category Rating: Developed
This note is based on an article that appeared in the December 2003 edition of the Transport & Trade e-Bulletin issued by Phillips Fox, lawyers specialising in this field with offices in Australia and New Zealand.
Cargo interests did not oppose the application but themselves applied for security, in the event that a limitation decree were granted, that would have required Tasman Orient to establish a limitation fund in the amount of the limitation decree. Tasman Orient opposed this application, principally on the ground that the court did not have power under the Act to order security in this manner.
Justice Williams of the New Zealand High Court referred to the development under statute of the categories of persons entitled to limit their liability, and also to the judgment of Mr Justice Steel in the English Commercial Court in the case of CMA CGM S.A. v Classica Shipping Company Limited  Lloyd's Rep. 50, in which he summarised the history of limitation and observed that charterers may limit liability where the liability arises "qua owner" (that is, when the charterer is acting as an owner). (This restricted interpretation of the charterer’s right to limit was overruled by the Court of Appeal in a judgment delivered on 12 February 2004.)
The New Zealand court also found that, for the obvious reason that he was employed by the ship's owner, the acts of the Master in the navigation of the vessel could not be attributed to the sub-timecharterer of the vessel. Although the sub-timecharterer did direct the master as to such matters as ports of call and, broadly, the route to be followed, the manner of implementing those orders, including the detailed navigation and management of the ship, was left to the master. The charterparty provided for the actual owner to remain responsible for navigation and gave the master sole responsibility for deciding the course.
The Court found that on the evidence available, the casualty might have been caused by the negligent navigation of the master but in circumstances where it had not been shown that his actions were attributable to the sub-charterer. This did not, therefore, defeat the sub-charterers' entitlement to limit liability. The court specifically did not follow in this respect the earlier decision of the New Zealand High Court in the case of Nelson Pine Industries Ltd. v. Seatrans New Zealand Ltd. (the "Pembroke").
The Court also found that New Zealand law does not provide that an applicant - in order to get a decree – must admit liability or set up a limitation fund. In the result, therefore, sub-charterers, who were contesting the cargo claims - obtained an order limiting liability and remained entitled to defend them to trial without giving security as a condition of the order. The effect of the order was to limit the sub-charterer's potential liability, if any proved at trial, to about US$4 million, rather than approximately US$12 million.
As regards the power of the Court to order the establishment of a limitation fund, the Court found that the MTA did not give the Court jurisdiction to require a fund in relation to claims subject to limitation of liability.
In the event that the Court had found jurisdiction, Tasman Orient had argued that it was not appropriate to require security in a case where there was no admission of liability. There was no English authority by which the Court had required that a limitation fund be constituted where liability had not been admitted. In the one reported case in which a party did not admit liability, a fund had already been constituted before the decree was made. The English Rules of the Supreme Court incorporate clear textual indications which confirm that requiring a fund is a matter of discretion rather than obligation. This is also consistent with Article 10 of the London Convention which provides that the constitution of a limitation fund is not mandatory, but a State party may provide in its national law that it will be.
The Court did not address this point directly, although it observed that if jurisdiction had been held to exist, it would have permitted the sub-charterer to provide security by way of an International Group P&I Club letter of undertaking, rather than by placing funds in Court. Such a course is consistent with the Court's general practice to accept Letters of Undertaking/Guarantee from members of the International Group of P&I Clubs by way of security in lieu of arrest.
These Case Notes have been prepared with care, but neither the Editor nor the International and other Contributors can guarantee that they are free from error, nor that they contain every pertinent point. Reliance should not therefore be placed upon them without independent verification. The Editor and the International and other Contributors disclaim all liability for any loss of whatsoever nature and howsoever arising as a result of others acting or refraining from acting in reliance on the contents of this website and the information to which it gives access. The Editor claims copyright in the content of the website.