Lloyd's Maritime and Commercial Law Quarterly
THE EFFECT OF EUROPEAN REGULATIONS ON THE JURISDICTION AND APPLICABLE LAW FOR LIMITATION OF LIABILITY PROCEEDINGS
Michael N Tsimplis*
This paper discusses jurisdiction and applicable law in limitation proceedings. It is argued that limitation proceedings can be categorised into at least three separate groups: proceedings determining the right to limit liability itself; proceedings concerning the establishment of the limitation fund; and proceedings for the release of secured assets after a limitation fund has been established.
1 The analysis of the three limitation Conventions supports such distinction and suggests that the LLMC 1996 Convention
2 does not contain jurisdictional rules in respect of the first category but contains jurisdictional rules in respect of the establishment of the limitation fund. These rules are not uniform between Contracting States and are discretionary in character. Accordingly, we conclude that the jurisdictional arrangements contained in the international Conventions are too weak and, by virtue of Art 71, are insufficiently clear to override the other jurisdictional provisions of Brussels I. The law applicable to limitation of liability with respect to non-contractual obligations under the operation of the Rome II Regulation
3 is also discussed. The English law position, that the limitation law applicable was that of the forum, appears to have been changed by Rome II. It is concluded that the operation of the international limitation regimes is likely to be disrupted.
1. INTRODUCTION
Limitation of liability developed, under the national laws of various states, as protection for the shipowner from vicarious liability in cases where the ship’s master and crew were negligent or acted intentionally.4 Limitation of liability has remained in existence and has
* Professor of Oceanography and Maritime Law, University of Southampton. I am grateful to Barney Reynolds for significant contribution to this paper, and to Yvonne Baatz and Jennifer Lavelle for comments on this paper.
1. Owing to length restriction we shall not deal with this issue in detail. However, the point is that limitation Conventions forbid further security actions against a shipowner who has established a limitation fund and provide for the release of security, in some case as a matter of discretion and in others as a matter of obligation. Thus all courts of Contracting States are given jurisdiction to act in a particular way or, at least, restrain their jurisdiction in the specified ways.
2. Convention on Limitation of Liability for Maritime Claims, London, 19 November 1976 (“LLMC 1976”) as amended by the Protocol of 1996, London, 2 May 1996 (“LLMC 1996”).
3. Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) OJ 2007 L199/40 (31/7/2007).
4. See DC Greenman, “Limitation of Liability Unlimited” (2001) 32 JMLC 279.
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