The constitution of a limitation fund which fulfils Article 11 requirements brings immediate protection to the shipowner in respect of any claim made against the fund. Therefore, all other rights against either the person that has established the fund or on behalf of whom the fund is established, i.e., all the “shipowners”, salvors and their insurers, are barred. The wording is very general and refers to “any rights”, thus it is arguable that security proceedings as well as relief by injunction are also barred.
Where the claimant has succeeded in obtaining security through arrest of the ship or attachment of other property or security in any other form before the establishment of the fund, the establishment of the fund may affect the release of the ship or the security depending on the Contracting State in which the limitation fund is established. Accordingly, where the fund is constituted at the first port of call after an incident, or at the place of disembarkation in respect of passengers, or the port of discharge in respect of cargo, or the port where the ship is arrested, then the ship or other property or security should be released.
Where a claim against the limitation fund is made then the claimant is not permitted to enforce its claim against any of the assets of the defendant. This would probably apply whether or not the claim is finally considered to be under the 1996 LLMC.
Add comment