In accordance with the provisions of the above-mentioned 1976 International Convention, when all claims resulting from a single incident exceed the limits of liability referred to in Article 100 of the code, the total amount of compensation due by the owner under the legal limitation shall be constituted, at the owner’s request and by the owner or any other person substituted for him, into a single limitation fund.
The fund thus constituted shall be used exclusively to settle claims to which the limitation of liability applies.
Once the fund has been set up, the creditors to whom the fund is reserved may not exercise any rights over other property of the owner in respect of the same claims, provided that the limitation fund is actually available for the benefit of the claimant.
The fact of invoking the limitation of liability or setting up the limitation fund does not imply recognition of liability by the owner.
The limit of liability for claims other than passenger claims, arising from the same event, is calculated as follows:
a)- In respect of claims for death or personal injury:
1)- 333,000 units of account for a ship with a tonnage of less than 500;
2)- for a ship whose tonnage exceeds the above figure, the following amount which added to paragraph 1 of sub-paragraph a:
– For each unit of tonnage 501 to 3000, 500 units of account;
– For each unit of gauge from 3001 to 30,000, 333 units of account;
– For each unit of tonnage from 30,001 to 70,000, 250 units of account; – And for each ton above 70,000, 167 units of account;
b) In respect of all other claims:
1)- 167,000 units of account for a vessel whose tonnage does not exceed 500 tons;
2)- For a ship whose tonnage does not exceed the above figure, the following amount which is added to the amount indicated in paragraph 1 of sub-paragraph b:
– For each unit of tonnage from 501 to 30,000, 167 units of account;
– For each unit of tonnage from 30,001 to 70,000, 125 units of account;
– And for each unit above 70,000, 83 units of account.
c) Where the amount calculated in accordance with subparagraph a paragraph 1 is insufficient to settle the claims referred to in that subparagraph, the amount calculated in accordance with subparagraph b paragraph 1 may be used to settle the outstanding balance of the claims referred to in subparagraph a paragraph 1 and this unpaid balance competes with the claims referred to in subparagraph b paragraph 1.
(d) However, without prejudice to the right of claims for death or personal injury in accordance with subparagraph a paragraph 1, a State Party may stipulate in its national legislation that claims for damage to works of art of ports, navigable waterways and navigational aids shall have priority over other claims referred to in subparagraph b paragraph 1 which is provided for in its national legislation.
e) The limits of liability of any salvor not acting from a vessel, or of any salvor acting solely on board the vessel to which or in respect of which he provides services, are calculated on the basis of a tonnage of one thousand five hundred.
f) For the purposes of the Code, the calculation of ship’s tonnage is carried out in accordance with the rules in Annex 1 of the International Convention on Tonnage Measurement of Ships, 1969.
If, prior to the distribution of the fund, the owner of a ship has paid all or part of one of the claims indicated in articles 101, 102 and 103 of the code, he is authorized to take part, in due proportion, in place of his creditor in the distribution of the fund, but only to the extent that, according to the law of the country where the fund is constituted, this creditor could have claim against the owner.
In all cases where an owner is authorized by the present code to limit his liability, he may obtain the release of the seizure of his vessel or any other property belonging to him, as well as the release of any sureties and guarantees given.
He must first prove that he has set up the fund or provided all the guarantees required to do so.
For the application of the provision of the preceding paragraph, the judge shall take into account the constitution of the fund or the provision of sufficient guarantees not only on the territory of the C.E.M.A.C. member state but also, either at the port where the event giving rise to the distrainor’s claim occurred, or at the first port of call after the event, if the event did not take place in a port, or at the port of landing or unloading in the case of a claim relating to personal injury or damage to goods.
When the owner has provided a guarantee for a sum corresponding to the limits of his liability, this guarantee is used to pay all claims deriving from the same event and for which the owner can limit his liability.
This chapter is without prejudice to special provisions limiting the shipowner’s liability for:
– Claims arising from oil pollution damage;
– Claims subject to limitation of liability for nuclear damage;
– Nuclear damage claims against the owner or operator of a nuclear ship.
Add comment