An Unbreakable Right?

A shipowner’s right to limit liability is a well-known feature of international maritime conventions. The right to limit liability exists unless it can be proved that the loss resulted from the shipowner’s “personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result”. The limitation amount is determined by reference to the tonnage of the ship. This test, as first set out in the 1976 Convention on Limitation of Liability for Maritime Claims (LLMC ), changed the previous position on the right to limit which required shipowners to first prove that the loss did not arise from the shipowners “fault or privity”.

Actions against Insurers

This right to limit liability under the LLMC, often referred to as “almost unbreakable”, was effectively adopted in all IMO Conventions dealing with liability and compensation issues, including oil pollution claims from tankers (Civil Liability Convention/CLC), bunker spills (Bunker Convention), hazardous and noxious substances (HNS Convention), as well as wreck removal liabilities (Nairobi Convention), and passenger claims (Athens Convention).  The Liability Conventions all impose strict liability (with limited exceptions), require shipowners to hold mandatory financial security or insurance for the relevant liability up to the relevant limit, and enable claims to be brought directly against insurers, thereby avoiding the usual “pay to be paid” clauses in P&I Club rules.

Protections for Insurers

However, each Convention contains express protection for insurers. Each are clear that an insurer’s liability will always be limited according to the limitation provisions, even when an owner is not entitled. This principle has been described as essential to the effective operation of the liability and compensation regimes and the availability of insurance.

However, its application in practice came under scrutiny following the decision of the Spanish Supreme Court regarding the ship Prestige. Approximately 63,272 tonnes of heavy fuel oil were spilled when Prestige broke in two off the coast of Spain in 2002.  The oil had a significant impact on fisheries, aquaculture and tourism businesses in Spain and France. Extensive clean-up and preventive measures were carried out in both countries. In January 2016, the Supreme Court overturned earlier decisions and found the master criminally liable. It determined the shipowner had lost the right to limit liability and held the insurer directly liable to the full insurance policy amount of USD$1 billion, rather than the limits provided under the CLC Convention.

Unsurprisingly, this decision caused disquiet in insurance circles. Discussions on the need for consistent application of the Convention requirements, the relevance to the availability of insurance, and for certainty in the insurance market have been on-going since.

The Problem in New Zealand

New Zealand has not properly implemented the Convention requirements to protect insurers of oil tankers subject to the CLC regime.

Domestic legislation is ambiguous (at best) on the right of an insurer of a ‘regulated ship’ to limit liability where the shipowner has lost the right of limitation, but does not provide any right to limit liability for insurers of most oil tankers at all, exposing them to the risk of liability beyond the CLC Convention limits.  This also means New Zealand is in breach of its obligations at international law to properly implement an international convention it is a party to.

There are some signals that the Ministry of Transport may remedy this in the future, however the opportunity to achieve this under the recent Maritime Offshore Amendment Act that came into force on 1 January 2020 was missed.

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.