Federal Court of Australia

Tasmanian Ports Corporation Pty Ltd v CSL Australia Pty Ltd (The Goliath) [2025] FCAFC 53

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 (insofar as it relates to prayer 1 of the appellant’s notice of cross-claim filed on 18 October 2023 in proceeding NSD 789 of 2022) and Order 2 of the Orders made on 26 July 2024 be set aside.

3.    The first respondent pay the appellant’s costs of the appeal, to be taxed if not agreed.

4.    The parties have liberty to apply for a variation of Order 3 above within 5 business days of the date of these Orders.

AND THE COURT DECLARES THAT:

CSL Australia Pty Ltd is not entitled to limit its liability pursuant to the Limitation of Liability for Maritime Claims Act 1989 (Cth) (the Act) to Tasmanian Ports Corporation Pty Ltd for claims in respect of the raising, removal, destruction or the rendering harmless of the tugs “Campbell Cove” and “York Cove” which were sunk and wrecked including anything that has been on board the said tugs, being matters identified in the Act, Sch 1, Art 2.1(d), which claims are not limitable by reason of s 6 of the Act.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The central issue in this appeal is the proper construction of Article 2 of the Convention on Limitation of Liability for Maritime Claims, 1976 as amended by the Protocol of 1996 to amend the Convention on the Limitation of Liability for Maritime Claims, 1976 (1996), and further amended by Resolution LEG.5(99) (2012) of the Legal Committee of the International Maritime Organisation (IMO) (collectively, the 1976 Convention). More particularly, it concerns the scope of Art 2(1)(d) of that Convention and whether, in the circumstances of this case where Australia has exercised its right of reservation under Art 18(1) of the 1976 Convention to exclude the application of Arts 2(1)(d) and (e), the appellant’s (Tasmanian Ports Corporation (TasPorts’)) claims for “wreck removal” are subject to limitation by CSL Australia Pty Ltd.

2    The concept of limiting liability in the manner provided for in the 1976 Convention is often anathema to those unfamiliar with maritime (and aviation) law. Limitation of liability is central to shipping law. In response to Lord Mustill’s deprecation of the imbalance between the treatment of parties who are subject to such a regime and those who are not (‘Ships are different – or are they?’ [1993] Lloyd’s Maritime and Commercial Law Quarterly 490), Sir David Steel argued that ships were indeed different, observing (‘Ships are different: The case for limitation of liability’ [1995] Lloyd’s Maritime and Commercial Law Quarterly 77 at 87 (“Ships are Different”) that limitation of liability:

(a)    Still has a role to play in the encouragement of investment worldwide.

(b)    Helps ensure a level playing field for international competition.

(c)    Affords a considerable degree of comfort to the insurance industry that the catastrophe exposure will be capped.

(d)    Tends to impose a discipline on claimants and discourages the development of a system of recovery based on punishment rather than compensation.

3    These observations remain relevant to the issues that arise in this appeal.

4    In addition to the 1976 Convention, the limitation regime relevant to shipping includes: the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC 1969); the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (Fund 1971); the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010 (HNS 2010); the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers 2001); and the Nairobi International Convention on the Removal of Wrecks, 2007 (Nairobi Wreck Removal 2007), including the various amendments and Protocols to each.

5    It is nevertheless widely accepted that the limitation regime is not necessarily “fair”. Issues of construction, such as those that arise in this case, are therefore often resolved in a manner that does not necessarily seem intuitively “just”. In respect of one of the earliest iterations of the regime, the Limitation of Liability Act of 1851 (US), it was said, “An act which is vicious in its impact, unconscionable in its results and outmoded in an age of institutionalised protective insurance, if it cannot be repealed outright, deserves only a narrow, grudging and constrictive construction” (Thomas F. Lambert Jr., ‘Comments on Recent Important Admiralty Cases’ (1959) 24 NACCA Law Journal 206, 225). In The Bramley Moore [1963] 2 Lloyd’s Rep 429 at 437, Lord Denning said:

The principle underlying limitation of liability is that the wrongdoer should be liable according to the value of his ship and no more … I agree that there is not much room for justice in this rule; but limitation of liability is not a matter of justice. It is a rule of public policy which has its origin in history and its justification in convenience.

(Emphasis added.)

6    The primary judge held that TasPorts’ wreck removal claims are subject to limitation under Art 2(1)(a) of the 1976 Convention and are not excluded from being subject to limitation by Australia’s exercise of its right of reservation not to implement Art 2(1)(d) [and (e)] by s 6 of the Limitation of Liability for Maritime Claims Act 1989 (Cth) (LLMC Act).

7    For the reasons that follow, we respectfully disagree with the conclusion reached by the primary judge.

Background

8    On 28 January 2022, whilst manoeuvring to berth in the Port of Devonport, the MV Goliath, a self-loading bulk cement carrier owned and operated by the first respondent, CSL, allided with the wharf and the Tugs York Cove and Campbell Cove, which were moored alongside the wharf, causing both Tugs to sink at berth and emit diesel fuel and other hydrocarbons into the Mersey River. The wharf and both Tugs are owned and operated by TasPorts.

9    Relevantly, following the commencement of proceedings by TasPorts against CSL for breach of contract, in negligence and in public nuisance (NSD363/2022, the primary proceeding), CSL commenced a limitation proceeding (NSD789/2022) in which it sought declarations that it is entitled to limit its liability, if any, for all claims arising out of the allision within the meaning of Art 2 of the 1976 Convention. In the limitation proceeding, TasPorts pleads in its defence that its claims in the sum of approximately $17.25 million for “costs of and associated with the containment, removal and disposal of hydrocarbons, and the removal and disposal of the Tugs” are not subject to limitation because of the effect of s 6 of the LLMC Act. Those claims are referred to in the primary judgment as the “para 22(e) claims”. Paragraph 22(e) of the amended statement of claim in the primary proceeding particularised those claims as follows:

e.    costs of and associated with the containment, removal and disposal of hydrocarbons, and the removal and disposal of the Tugs, being claims in respect of the matters identified in the Limitation of Liability for Maritime Claims Act 1989 (Cth) (the Act), Sch 1, Art 2.1(d), which claims are not limitable by reason of s 6 of the Act;

Particulars

i.     Since approximately 28 January 2022, the Port Corporation has incurred, and continues to incur, costs managing and coordinating the containment, removal and disposal of hydrocarbons and subsequent removal of the Tugs.

ii.     These costs include fees paid or payable to the contractors referred to in (iii) to (viii) below and also the following additional costs:    

1.     labour cost of Port Corporation's personnel - $1,041,124;

2.     overall management and logistics, including consumables, personal protective equipment, catering, security, COVID-19 controls, transport and accommodation costs, and receptacles to hold hydrocarbons - $496,332;

3.     shoreside equipment - $95,551; and

4.    waterside equipment - $92,238.

Further particulars will provided before trial.

iii.     Fees paid by the Port Corporation to United Salvage Pty Limited (United), in accordance with the terms of a Wreckhire contract between the Port Corporation and United dated 8 February 2022, to:

1.     recover and dispose of the hydrocarbons that were released from the Tugs into the marine environment, following (and as a result of) the Collision; and

2.     contain, remove and dispose of the hydrocarbons within the Tugs following the Collision.

iv.     The foregoing work was primarily undertaken by United between about 31 January and 10 February 2022. Further assistance was provided by the Port Corporation and by other contractors appointed by the Port Corporation. As a result of the foregoing work, the Port Corporation incurred costs of $426,832.07.

v.     Fees paid or payable by the Port Corporation to United, in accordance with the terms of a Wreckstage contract dated 27 March 2022 (Wreckstage) as varied by an addendum to the Wreckstage dated 27 July 2022 (Wreckstage addendum) between the Port Corporation and United, to:

1.     remove the Tugs from the Port; and

2.     deliver the Tugs to the disposal contractor in the Port of Brisbane.

vi.     The foregoing work was undertaken by United and its contractors between about 30 March and 25 August 2022. As a result of the foregoing work, the Port Corporation incurred costs of $13,437,865.10, including:

1.     fees paid to United, calculated in accordance with the Wreckstage - $5,334.112.50;

2.     fees payable to United, calculated in accordance with the Wreckstage addendum - $7,997,502.60; and

3.     reimbursement of insurance premium paid by United for salvors, wreck removal, marine contracting, decommissioning and pollution liabilities, specifically in relation to the work particularised above - $207,250.

vii.     Fees paid or payable by the Port Corporation to Birdon Pty Limited (Birdon), in accordance with the terms of a Recyclecon contract between the Port Corporation and Birdon dated 5 August 2022 (Recyclecon), to deconstruct and lawfully dispose of the Tugs, which fees are about $1,755,351.94.

Further particulars will be provided before trial.

10    In its cross-claim filed in the limitation proceeding, TasPorts sought, inter alia, a declaration that CSL is not entitled to limit its liability for claims in respect of the raising, removal, destruction or the rendering harmless of the Tugs which were sunk and wrecked, including anything that had been on board the Tugs. The primary judge declined to make such a declaration.

The relevant provisions of the 1976 CONVENTION

11    The preamble to the 1976 Convention recognises “the desirability of determining by agreement certain uniform rules relating to the limitation of liability for maritime claims”.

12    Article 1 provides inter alia:

Article 1

Persons entitled to limit liability

(1)    Shipowners and salvors, as hereinafter defined, may limit their liability in accordance with the rules of this Convention for claims set out in Article 2.

13    There was no dispute before the primary judge that, prima facie, CSL falls within the scope of Art 1 as a shipowner.

14    Article 2 lists the claims which may be the subject of limitation, provided that the basis for the particular claim is not exempt under Art 3, and provided that the claim has not arisen due to conduct barring limitation within the meaning of Art 4 – i.e. loss resulting from a personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. There has been no suggestion in this case that Art 4 is engaged. Article 2 also provides that the claims listed may be subject to limitation “whatever the basis of liability may be”. Two matters flow from that. First, the basis of any claim is irrelevant so that for example, claims in the nature of an indemnity under a contract, for breach of a statutory duty, or for contribution under a proportionate liability statute can all be the subject of limitation. Secondly, it is the fact of a claim that is the triggering event, such that the basis of liability is not a determining factor in the construction and application of Article 2.

15    Articles 2 and 3 are in the following terms:

Article 2    

Claims subject to limitation

(1)    Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

(a)    claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;

(b)    claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage;

(c)    claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations;

(d)    claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship;

(e)    claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;

(f)    claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.

(2)    Claims set out in paragraph 1 shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise. However, claims set out under paragraph 1 (d), (e) and (f) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable.

Article 3     

Claims excepted from limitation

The rules of this Convention shall not apply to:

(a)    claims for salvage, including, if applicable, any claim for special compensation under Article 14 of the International Convention on Salvage, 1989, as amended, or contribution in general average;

(b)    claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, dated 29 November 1969 or of any amendment or Protocol thereto which is in force;

(c)    claims subject to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage;

(d)    claims against the shipowner of a nuclear ship for nuclear damage;

(e)    claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs, dependants or other persons entitled to make such claims, if under the law governing the contract of service between the shipowner or salvor and such servants the shipowner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in Article 6.

16    Article 6 contains the general limits of liability. The limitation amounts in respect of passenger claims are contained in Art 7. Article 8 defines a “Unit of Account” referred to in the respective limitations as the “Special Drawing Right as defined by the International Monetary Fund”. Relevantly, Art 6 as amended most recently by IMO Resolution LEG.5(99) of 2012 with effect from 8 June 2015 provides:

Article 6

The general limits

(1) The limits of liability for claims other than those mentioned in Article 7, arising on any distinct occasion, shall be calculated as follows:

(a)     in respect of claims for loss of life or personal injury,

(i)     3.02 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

(ii)     for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

for each ton from 2,001 to 30,000 tons, 1,208 Units of Account;

for each ton from 30,001 to 70,000 tons, 906 Units of Account; and

for each ton in excess of 70,000 tons, 604 Units of Account,

(b)     in respect of any other claims,

(i)     1.51 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,

(ii)     for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):

for each ton from 2,001 to 30,000 tons, 604 Units of Account;

for each ton from 30,001 to 70,000 tons, 453 Units of Account; and

for each ton in excess of 70,000 tons, 302 Units of Account.

(2)    Where the amount calculated in accordance with paragraph 1 (a) is insufficient to pay the claims mentioned therein in full, the amount calculated in accordance with paragraph 1 (b) shall be available for payment of the unpaid balance of claims under paragraph 1 (a) and such unpaid balance shall rank rateably with claims mentioned under paragraph 1 (b).

(3)    However, without prejudice to the right of claims for loss of life or personal injury according to paragraph 2, a State Party may provide in its national law that claims in respect of damage to harbour works, basins and waterways and aids to navigation shall have such priority over other claims under paragraph 1 (b) as is provided by that law.

(4) The limits of liability for any salvor not operating from any ship or for any salvor operating solely on the ship to, or in respect of which he is rendering salvage services, shall be calculated according to a tonnage of 1,500 tons.

(5)     For the purpose of this Convention the ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.

17    Article 11 provides for the constitution of a limitation fund in the following terms:

Article 11

Constitution of the Fund

(1)    Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked.

(2)     A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority.

(3)     A fund constituted by one of the persons mentioned in paragraph 1 (a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1 (a), (b) or (c) or paragraph 2, respectively.

18    The scope of application of the 1976 Convention is dealt with in Ch IV. Relevantly, Art 15 provides, inter alia:

Article 15

(1)    This Convention shall apply whenever any person referred to in Article 1 seeks to limit his liability before the Court of a State Party or seeks to procure the release of a ship or other property or the discharge of any security given within the jurisdiction of any such State. Nevertheless, each State Party may exclude wholly or partially from the application of this Convention any person referred to in Article 1 who at the time when the rules of this Convention are invoked before the Courts of that State does not have his habitual residence in a State Party or does not have his principal place of business in a State Party or any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the flag of a State Party.

(Emphasis added.)

19    The final clauses of the 1976 Convention are in Ch V. Relevantly, Art 18 provides, inter alia:

Article 18

Reservations

(1)    Any State may, at the time of signature, ratification, acceptance, approval or accession, or at any time thereafter, reserve the right:

(a)    to exclude the application of Article 2, paragraphs 1 (d) and (e);

(b)    to exclude claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any amendment or Protocol thereto. No other reservations shall be admissible to the substantive provisions of this Convention.

(Emphasis added.)

The pRIMARY JUDGE’S construction of Art 2(1)

20    The primary judge undertook an orthodox approach to the interpretation of the text of a treaty, consistent with the general principles of treaty interpretation set out in Arts 31 and 32 of the Vienna Convention on the Law of Treaties, 1969 (Vienna Convention) and discussed by the High Court in Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11; 275 CLR 292 at [38]-[39]. In accordance with those principles, the 1976 Convention must be interpreted so as to give full effect to the ordinary meaning of the words used in their context and in light of the Convention’s evident object and purpose. The text is not to be interpreted according to particular domestic rules of interpretation; rather, a treaty should have the same meaning for all of the States Parties: Kingdom of Spain at [38]. A court may have regard to extrinsic sources, including the travaux préparatoires, as supplementary means of interpretation in order to confirm the meaning or to determine the meaning when it is ambiguous or obscure or leads to a manifestly absurd or unreasonable result: Kingdom of Spain at [39]; CMA CGM SA v Classica Shipping Co Ltd (The CMA Djakarta) [2004] EWCA Civ 114; [2004] 1 Lloyd’s Rep 460 at [10]. The parties were ad idem as to the general principles. The relative usefulness of the travaux préparatoires is a matter to which we will return.

21    As to context, object and purpose, the primary judge accepted, correctly with respect, that the general object and purpose of the 1976 Convention was as stated by various judges in both Australia and England. This included (at PJ[92]) that the policy underlying the concept of limitation “is the protection of the owner engaged in the maritime carrying trade from financial ruin where his vessel causes damage of the described kind”, per Barwick CJ in China Ocean Shipping Company v South Australia [1979] HCA 57; 145 CLR 172 at 185; and see also “Ships are Different” at 87. In The CMA Djakarta at [11], Longmore LJ, with whom Neuberger LJ and Waller LJ agreed, said that it was not possible to ascertain with certainty any object or purpose of the 1976 Convention beyond what the parties in that case had agreed to be common ground, namely:

(a)     that the general purpose of owners, charterers, managers and operators being able to limit their liability was to encourage the provision of international trade by way of sea-carriage;

(b)     that the main object and purpose of the 1976 Convention was to provide for limits which were higher than those previously available in return for making it more difficult to “break” the limit, to use the colloquial phrase. Before 1976, any person, arguing in the United Kingdom that the limit should not apply, only needed to show “actual fault or privity” on the part of the party relying on the limit. Under the 1976 Convention the (now higher) limit is to apply unless it can be shown that the loss resulted from the personal act or omission of the party relying on the limit “committed with intent to cause such loss or recklessly with the knowledge that such loss would probably result”. It is thus particularly difficult to break the limit, but the amount available for compensation is higher than it was previously;

(c)     one of the other objects of the Convention was to enable salvors to claim that their liability could be limited in the same way as owners and charterers; this reverses The Tojo Maru [1972] A.C. 242.

22    In MSC Mediterranean Shipping Co SA v Stolt Tank Containers BV (The MSC Flaminia (No 2)) [2023] EWCA Civ 1007; [2024] 1 Lloyd’s Rep 535 at [62], Males LJ (with whom Falk LJ and Sir Launcelot Henderson agreed) referred to observations by Lord Reid in NV Bureau Wijsmuller v “Tojo Maru” (Owners) [1971] 1 Lloyd’s Rep 341 and by Mr Justice Thomas in Aegean Sea Traders Corporation v Repsol Petroleo SA (The Aegean Sea) [1998] 2 Lloyd’s Rep 39 that the first object and purpose identified by Longmore LJ “meant that the provisions of the relevant Convention should be applied, if possible, to all cases which can reasonably be brought within the language of the Convention” (emphasis added). Whilst generally agreeing with the approach of Lord Reid in the Tojo Maru (albeit in relation to the construction of the International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships, 1957 (the 1957 Convention), the predecessor to the 1976 Convention) and Thomas J in The Aegean Sea, Males LJ said, “… it only takes matters so far. It remains necessary to interpret the language of each Convention in the light of its object and purpose and to remember that conferring a right to limit means that the party which has suffered loss and damage will not obtain full compensation if its losses exceed the limitation amount” (emphasis added).

23    On 9 April 2025, two days prior to the date this judgment had been listed for delivery, the Supreme Court of the United Kingdom delivered its judgment in MSC Mediterranean Shipping Company SA v Conti 11 Container Schiffarts-GmbH & Co KG MS “MSC Flaminia” [2025] UKSC 14 (The MSC Flaminia UKSC). The parties were invited to make written submissions as to the consequences of that decision for this appeal, if any. Both TasPorts and CSL did so.

24    In The MSC Flaminia UKSC at [129], Lord Hamblen (with whom Lord Hodge, Lord Briggs, Lord Leggatt and Lord Burrows agreed) referred to: (a) the observations of Lord Reid in the Tojo Maru and of Thomas J in The Aegean Sea as set out above; (b) the decision of the United States Supreme Court in Just v Chambers (1941) 312 US 383, in which it was said, at 385, that “[t]he statutory provision for limitation of liability … has been broadly and liberally construed in order to achieve its purpose to encourage investments in shipbuilding …”; and (c) the primary judge’s statement, at PJ[145], “… I am also alive to the importance of giving effect to [the 1976 Convention’s] principal purpose, namely to expand upon and protect the rights of limitation”. His Lordship then said, at [130]:

In principle, I can see no reason why the provisions of the 1976 Convention in general or article 2 in particular should be applied either narrowly or widely. Although the Convention recognises that limitation is desirable, the circumstances in which there was to be a right to limit under article 2 was a matter of discussion and negotiation between the participating state representatives. The resulting agreement is set out in the Convention which should be applied according to its terms. It is what it is. That is also consistent with the approach to interpretation set out in the Vienna Convention and the importance attached to the ordinary meaning of the words used.

25    We respectfully concur with those observations. Beyond those observations, for reasons we address later, we have not found the decision of the Supreme Court to be of material assistance in this case.

26    As to the text of the 1976 Convention, the primary judge concluded that TasPorts’ para 22(e) claims fell within the ordinary language of Art 2(1)(a) and are, on that basis, prima facie subject to limitation. His Honour considered that there “plainly is an overlap between (a) and (c), taken together, and (d) but it is not complete – para (d) has its own non-overlapping sphere of operation” (PJ[153]). The primary judge identified that non-overlapping sphere to be “the statutory strict liability (ie no-fault) claims of public authorities for the costs and expenses of wreck removal against the owners of the sunken ship” (PJ[115]). Consequently, his Honour reasoned that, giving the 1976 Convention a purposive construction, being that limitation should be available in respect of all claims reasonably within the language of the Convention (relying on Males LJ’s observations in The MSC Flaminia (No 2)), there was no reason to limit (or read down) the meaning of paras (a) and (c) with reference to para (d) – “That purpose would be frustrated by excluding from paras (a) and (c) claims which obviously come within their language simply because they also come within the language of para (d) which has not been implemented in Australia” (PJ[153]).

27    In reaching this conclusion, the primary judge rejected TasPorts’ primary contention, applying the interpretative maxim generalia specialibus non derogant (that the specific prevails over the general), that unless claims in respect of wreck removal under Art 2(1)(d) are excluded from the more general provisions of Art 2(1)(a) and (c), the Convention is incoherent. His Honour also (at PJ[145]) departed from the reasoning of the Hong Kong Court of Final Appeal in Perusahaan Perseroan (Persero) PT Pertamina v Trevaskis Ltd (The Star Centurion and The Antea) [2023] HKCFA 20; [2024] 2 Lloyd’s Rep 435, in which a very similar fact scenario had been considered.

28    Having considered text, context, object and purpose, the primary judge turned to the history of the 1976 Convention and the extrinsic materials, which his Honour found supported the construction he had arrived at in any event saying, at PJ[190]:

… Art 2(1)(d) of the 1976 Convention was conceived of and intended to include claims within the heads of limitable claims that were not otherwise regarded as being included, and the principal objective in allowing for a reservation from that paragraph was to enable States Parties to exclude the claims of harbour authorities from being limitable. Neither Art 2(1)(d) nor Art 18(1) were expressed in that way, but that was clearly their underlying rationale. The construction that I have come to honours that rationale within the confines of the ordinary meaning of the text, and it gives effect to the object and purpose of the Convention otherwise supporting and strengthening shipowners’ right to limit liability.

(Emphasis added.)

The issues on appeal

29    In challenging the primary judge’s construction of Art 2(1)(d), TasPorts identified three questions for consideration in order to decide the central issue in the appeal.

30    The first was described as the coherency question – how is the 1976 Convention to be construed if TasPorts’ claims can be said to fall within both Art 2(1)(a) and (d)?

31    The second question was described as the redundancy question – whether there is, in fact, complete overlap between Arts 2(1)(a), (b) or (c), and (d) and (e)?

32    The third question arises on the notice of contention – does “a ship” in Art 2(1)(d) mean a ship able to limit under Art 2(1)(a)?

33    We consider each question in turn below.

The coherency question

34    In defending the reasoning of the primary judge, CSL submitted that, properly construed, Art 18 does not confer on Contracting States an option to completely remove from limitation all wreck removal claims, including claims within and limitable under Art 2(1)(a)-(c). It submitted that all Art 18 does is allow a Contracting State when implementing the 1976 Convention to “not enact or implement Art 2(1)(d), and thus to not allow limitation to only those claims falling under that paragraph”.

Text, context and purpose

35    CSL’s submission as to the proper construction of Art 2(1) is premised on the proposition that it is “not to be construed simply as listing categories of expenses or categories of loss” but rather permits different claims, which may arise from the same scenario, to be limited under the various sub-paragraphs of Art 2(1). CSL sought to draw a distinction between “the basis of a claim [as] a fact for identification” and “the ‘legal basis’ of the claim”. We consider this distinction to be somewhat illusory. It cannot be sustained when considering the 1976 Convention as a whole, rather than through the lens of a State Party which has exercised the reservation.

36    The exercise of the reservation in respect of Art 2(1)(d) and (e) does not change the construction of Art 2(1) as a whole. Australia is a Contracting State which has acceded to the 1976 Convention as a whole. That includes all of Art 2(1). By Art 18(1), it has then exercised its right to exclude the application of Art 2(1)(d) and (e) in Australian domestic law. The proper construction of Art 2(1) must be the same in every Contracting State, regardless of whether or not a State Party has exercised its right of reservation. So much is made clear by Art 21(2) of the Vienna Convention, which provides that a “reservation does not modify the provisions of the treaty for the other parties to the treaty inter se”. It is because the 1976 Convention applies to different legal systems that the basis of liability for any claim is irrelevant.

37    It follows that the distinction posited by CSL denudes the important words in the chapeau to Art 2(1), “whatever the basis of liability may be”, which were deliberately added to the 1976 Convention. The meaning of those words must be given effect.

38    Their importance is somewhat reinforced by the fact that they were apparently added to the 1976 Convention as a result of a perceived deficiency in the language of the 1957 Convention, Art 1(1) of which stated that the Convention applied to “… claims arising from …” a list of specified “occurrences”, as set out below.

1(1)    The owner of a sea-going ship may limit his liability in accordance with Article 3 of this Convention in respect of claims arising from any of the following occurrences, unless the occurrence giving rise to the claim resulted from the actual fault or privity of the owner:

(a)     loss of life of, or personal injury to, any person being carried in the ship, and loss of, or damage to, any property on board the ship;

(b)     loss of life of, or personal injury to, any other person, whether on land or on water, loss of or damage to any other property or infringement of any rights caused by the act, neglect or default of any person on board the ship for whose act, neglect or default the owner is responsible or any person not on board the ship for whose act, neglect or default the owner is responsible: Provided however that in regard to the act, neglect or default of this last class of person, the owner shall only be entitled to limit his liability when the act, neglect or default is one which occurs in the navigation or the management of the ship or in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers;

(c)     any obligation or liability imposed by any law relating to the removal of wreck and arising from or in connection with the raising, removal or destruction of any ship which is sunk, stranded or abandoned (including anything which may be on board such ship) and any obligation or liability arising out of damage caused to harbour works, basins and navigable waterways.

(Emphasis added.)

39    This formulation created difficulty for the United Kingdom under the Merchant Shipping Act 1894 (UK) as amended by the Merchant Shipping (Liability of Shipowners and Others) Act 1958 (UK), because s 503(1) provided that the right to limit was restricted to claims for which the shipowner is liable in damages (at common law). Consequently, in The Stonedale No 1 [1956] AC 1, the House of Lords held that an owner could not limit his liability for wreck removal expenses payable under statute because such expenses were in the nature of a debt. Similarly, in The Kirknes [1956] 2 Lloyd’s Rep 651, it was held that the owners of a towed vessel could not limit their liability for damage caused to the tug since the tow’s liability arose not from any breach of contract or duty but from the strict covenant in the towage contract to indemnify the tug.

40    The 1976 Convention is drafted such that one must look to the factual question which has given rise to some liability, regardless of how such liability might arise in any particular domestic legal system. The categories identified in the 1976 Convention are in respect of:

1.    loss of life or personal injury, albeit that such loss of life or personal injury must occur on board or in direct connection with the operation of the [wrongdoing] ship or with salvage operations [of the wrongdoing ship], including consequential loss (Art 2(1)(a));

2.    loss of or damage to property (including to harbour works, basins and waterways and aids to navigation) occurring on board or in direct connection with the operation of the [wrongdoing] ship or with salvage operations [of the wrongdoing ship], including consequential loss (Art 2(1)(a));

3.    delay in the carriage of cargo, passengers or their luggage [not necessarily linked to physical damage caused by the wrongdoing ship] (Art 2(1)(b));

4.    infringement of non-contractual rights occurring in direct connection with the operation of the [wrongdoing] ship or with salvage operations [of the wrongdoing ship] (Art 2(1)(c));

5.    raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such a ship (Art 2(1)(d));

6.    removal, destruction or the rendering harmless of the cargo of the [wrongdoing] ship (Art 2(1)(e));

7.    measures taken by a third-party in order to avert or minimise loss for which the person liable may limit liability under the Convention, and further loss caused by such measures (Art 2(1)(f)).

41    The primary judge held (PJ[99]) that TasPorts’ para 22(e) claims fall within a literal reading of Art 2(1)(a) because they are claims for expenses consequential upon loss of or damage to property that occurred in direct connection with the operation of the Goliath, the wrongdoing ship. Although unnecessary to decide, the primary judge also identified that to the extent that TasPorts’ non-contractual claims not arising from damage to property, being those in negligence and nuisance, did not fall within Art 2(1)(a), they could come within a literal reading of Art 2(1)(c) because they are claims for losses resulting from the infringement of rights other than contractual rights (PJ[100]). There was no dispute that the spilt hydrocarbons were not carried on board the Tugs as cargo and so Art 2(1)(e) was not engaged in respect of those claims.

42    With respect, we agree with the finding of their Lordships in The MSC Flaminia UKSC, at [156], that Art 2(1) does not preclude the dual characterisation of claims. The Supreme Court was however concerned with the question of whether a claim to limit liability under Art 2(1)(e) for the removal and rendering harmless of the cargo of the ship was precluded by the fact that the claim was the consequence of damage to the ship, which is not limitable under Art 2(1)(a). Their Lordships (at [158]) pointed to Art 2(1)(d) as an example of there being limitable claims which result from damage to the limiting ship. Their Lordships were not required to, and did not, consider the precise question before this Court on this appeal. For these reasons, respectfully, we derive no assistance from the decision.

43    TasPorts submitted that, in circumstances where the 1976 Convention: (i) identifies limitable claims by reference to heads of loss rather than conceptions of legal liability; (ii) specifies one such head of loss in Art 2(1)(d) as being removal of wreck; and (iii) affords each Contracting State the opportunity to exclude from the scope of limitable claims the whole of those claims within Art 2(1)(d), it would be incoherent to permit some claims in respect of wreck nevertheless to be limitable under Art 2(1)(a) or (c).

The comparable jurisprudence

44    This very question was addressed by the Hong Kong Court of Final Appeal in The Star Centurion.

45    The Star Centurion concerned a collision between The Antea and The Star Centurion which caused The Star Centurion to sink off Horsburgh Light House while anchored in Indonesian waters in the South China Sea. The Indonesian Ministry of Transportation required the wreck to be removed. The owners of The Star Centurion sought to recover, inter alia, the costs of so doing from the owners of The Antea. The owners of The Antea commenced limitation proceedings in Hong Kong in which the owners of The Star Centurion sought a declaration that the part of their claim for the raising and removal of the wreck should not be subject to limitation under Art 2 of the 1976 Convention, Hong Kong having exercised its reservation under Art 18(1).

46    Although referring to the “generalia maxim” (at [29]), Keane NPJ did not do so as a matter of the application of common law principles of statutory interpretation. Rather, his Honour said that “as a matter of principle, common sense and ordinary usage must apply to give effect to the instrument as a whole”. More importantly, Keane NPJ pointed (at [30]) to two textual features which tend to show that Art 2(1)(d) was intended to encompass all wreck removal expense claims, such that, whatever the basis of the liability therefor, a reservation under Art 18 would be effective to exclude such claims from limitation.

47    The first textual feature identified by Keane NPJ, which his Honour described as a “compelling consideration”, is that Art 2(1)(d) “occurs in an immediate context of factual categories of loss or expense, and is expressly and specifically concerned with claims for wreck removal expenses”. This may be seen to be demonstrated by the list of the kinds of loss or expense identified in the Convention set out above at [37]. His Honour observed that, “[in] contrast, art. 2(1)(a) makes no reference to wreck removal at all”. This is an important textual feature to which we will return.

48    The second textual feature is that Art 2(1)(d) “is not only specific; it is also unqualified in its scope in that it makes no difference between claims by harbour authorities and other shipowners”.

49    As to context, Keane NPJ observed that Art 18(1) is an important aspect of the context in which Art 2(1) is to be understood. His Honour said, at [31]:

Article 18(1) assumes that a claim of the kind set out in art. 2(1)(d) is identifiable as such so that it is able to be disapplied by the legislature of a Contracting State. Article 18(1) contemplates that any claim in respect of wreck removal expenses may be excluded from the Convention’s scheme for the limitation of liability of shipowners. Any claim, and all claims, in respect of wreck removal are included in art. 2(1)(d). Each and every such claim may be disapplied pursuant to art. 18(1) because it is a claim in respect of wreck removal even if it is also possible to describe it as a claim for loss consequential upon damage to property.

50    That this reading of the text of the Convention leads to coherence can be assessed against the consequences of the primary judge’s preferred construction:

(a)    A wrongdoing ship, in this case the Goliath, is entitled to limit its liability, pursuant to Art 2(1)(a), in respect of wreck removal expenses incurred directly by TasPorts because the wrecks, the Tugs, were owned by TasPorts and so are claims in respect of loss of or damage to property (the Tugs), and consequential loss, occurring in direct connexion with the operation of the Goliath.

(b)    A wrongdoing ship, which is sunk, wrecked, stranded or abandoned because of its own fault, or which caused another (innocent) ship to be wrecked, against which a claim is made for wreck removal by a party other than a harbour authority, would be entitled to limit its liability pursuant to Art 2(1)(c). However, an identical claim made by a harbour authority would not be limited.

(c)    If the Tugs had been owned by some other entity (the innocent shipowner), and TasPorts incurred the same expenses as particularised in para 22(e), TasPorts’ claims against the innocent shipowner would fall within Art 2(1)(d) and so, under Australian law, could not be limited.

(d)    If that innocent shipowner then brings a recourse claim against the wrongdoing ship to recover the amounts paid to TasPorts, that claim would fall within Art 2(1)(a) and so the wrongdoing ship would be entitled to limit, with the innocent shipowner, or its insurer, bearing the burden of any excess.

(e)    If a Contracting State exercises its right of reservation to exclude the application of Art 2(1)(d), the scope of limitation in Art 2(1)(a) will differ from that which applies in the case of a Contracting State that does not exercise its right of reservation.

51    Not only does this demonstrate the difficulties that attend the construction which CSL urges, it also reveals the considerable uncertainty created for those persons subject to the provisions of the 1976 Convention.

52    Against this, the primary judge observed that the construction urged by TasPorts, and adopted by Keane NPJ in The Star Centurion, would have the “decidedly odd result” that a claim by innocent shipowners for consequential losses arising from damage to the vessel will be subject to limitation by the owners of the wrongdoing ship, the operation of which caused the damage, but if the innocent ship sank, the consequential loss reflected in the costs and expenses of removing the wreck would not (PJ[155]). The same observation had been made by Norman A Martínez Gutiérrez in Limitation of Liability in International Maritime Conventions (Routledge, 2011) at 100 [2.8.2], who opined that such a result “would make little commercial sense”. In making this observation, Martínez Gutiérrez drew attention to the decision of the dissenting judge, Macrossan J, in the Full Court of the Queensland Supreme Court, albeit in obiter dicta, in Barameda Enterprises Pty Ltd v O’Connor (The Tiruna) [1988] 1 Qd R 359; [1987] 2 Lloyd’s Rep 666. The primary judge also found Macrossan J’s reasoning to be persuasive (PJ[131]-[133]).

53    However, The Tiruna addressed the 1957 Convention, which includes different wording in material respects to the 1976 Convention. The majority expressed the view that the Tiruna’s owners suffered no loss for wreck removal, because the removal costs were equal to the vessel’s salvage value, and as such their claim was characterised as being for the loss of the vessel within Art 1(1)(b) of the 1957 Convention. The majority held, albeit reasoning differently, that because a wreck removal claim was within Art 1(1)(c), it did not come within para (b). Justice Macrossan disagreed. His Honour drew a distinction between a claim by an innocent shipowner against the wrongdoing ship to recover wreck removal expenses it has been forced to incur “at the behest of” the Harbour Authority, which his Honour described as “making a claim arising from the loss of his ship and so the limitation applies”, and a demand by the Harbour Authority on the innocent shipowner for removal of the wreck or recovery of the expense of removal, which his Honour described as “a claim (a statutory demand in debt) simply arising out of an owner’s failure to remove an obstruction which de facto exists”. His Honour explained, at 677-8, “For this reason, while the innocent shipowner is not given protection against the Harbour Authority’s demand, the wrongdoing owner is permitted to limit his liability against the innocent owner’s consequential claim for compensation against him”.

54    We respectfully consider that the reasoning of Keane NPJ in The Star Centurion is more compelling where, at [48]-[50], his Honour points out that Macrossan J appears to have approached the question of construction by reference to the legal basis of liability for the claim, contrary to the terms of Arts 2(1) and 2(2), and thereby failed to consider the question by reference to the language of those Articles. In any event, and with respect to the Full Court of Queensland, The Tiruna simply did not involve Art 2(1) of the 1976 Convention and so is of limited assistance in the present case.

55    We accept that some academic commentary also supports the view that a wrongdoing ship can limit against a recourse claim pursuant to Art 2(1)(a), even if such a claim includes a wreck removal element. Marsden & Gault: S Gault, S Hazelwood (Gen eds), Marsden and Gault on Collisions at Sea (14th ed, Sweet and Maxwell, 2016) at 710, expressed the view that a wreck claim is a “consequential loss” claim within Art 2(1)(a) and is brought by way of “recourse or for indemnity” under Art 2(2). Professors Gaskell and Forrest, The Law of Wreck (Informa Law, 2019), at 104-5, submit that this is the correct approach. They point also to the treatment of a recourse claim that includes an element of salvage in The Breydon Merchant [1992] 1 Lloyd’s Rep 373, where a cargo claim against shipowners for salvage expenses resulting from unseaworthiness was held not to be excluded by Art 3(a), and to The Aegean Sea, where a recourse claim by a tanker against a colliding ship for CLC damages paid to environmental claimants was similarly held not to be excluded by Art 3(b).

56    However, unlike claims for salvage and for oil pollution damage, which although excluded by Art 3(a) and (b) may, if brought by way of recourse, fall within Art 2(1)(a) or (c), claims made pursuant to Art 2(1)(d) and (e) may be removed entirely from the scope of the Convention by the reservation of a State Party. In that event, claims in respect of “wreck” are not within the rules of the Convention at all.

57    This highlights a third textual feature which, in our view, tends to show that Art 2(1)(d) was intended to encompass all wreck removal expenses.

58    In contrast to the manner in which the exclusions in Art 3 are characterised, Art 2(1)(d) does not speak of claims for wreck removal; rather, it is expressed in the broader language of being “in respect of” wreck claims. To the extent that such language has been held to include consequential loss in the nature of a recourse claim for a head of claim that is otherwise excluded, the making of a reservation in relation to Art 2(1)(d) is a rejection by States Parties of the rules of the 1976 Convention when the factual basis of the occurrence which gives rise to loss or expense is a (as opposed to “the”) sunk, wrecked, stranded or abandoned ship.

59    The Hong Kong Court of Final Appeal held that Art 2(1)(d) is specific, unqualified in scope and comprehensive of any and all claims for wreck removal and that Art 18(1) is no less comprehensive in scope: The Star Centurion at [30]-[31]. As Keane NPJ identified (at [33]), “the context also includes art. 18(1) which contemplates that a signatory may reserve the right to exclude the application of art. 2(1)(d)”. As his Honour explained:

In this context, the plane on which the relationship between the claim and the liability in art. 2(1)(d) is, is that of the relationship between the claim and the factual basis of occurrence of the loss or expense in respect of which the claim is made. That is no less so because the claim might be based on a legal liability arising from the wrongful sinking of the ship which was required to be removed. On that plane, the respondents’ claim to recover the expenses of wreck removal is a claim in respect of wreck removal.

60    A fourth textual feature which tends to support this construction is that there can be no partial reservation under Art 18(1). This means, as Keane NPJ explained (at [34]), that:

… it would reduce art. 2(1) to incoherence to read the Convention as providing that a Contracting State may disapply art. 2(1)(d) and thus exclude from limitation of liability a claim for recovery of the expense of removing the wreck of a ship that has sunk, while at the same time providing that limitation of liability remains available to limit the same claim for recovery of the same expense for no reason other than that the expense is a consequence of the sinking of the same ship.

61    In the Court of Appeal (The Star Centurion and The Antea [2022] HKCA 1089; [2023] 1 Lloyd’s Rep 493), Kwan VP, with whom Barma and G Lam JJA agreed, said at [48]:

As a matter of language, art. 2(1)(a), (c) and (d) are each capable of encompassing claims of costs for wreck removal, irrespective of whether they are claims by statutory bodies or private recourse claims. If art. 2(1)(a) or (c) applies, such claims will be subject to limitation. If art. 2(1)(d) applies and a reservation is made under art. 18(1) to exclude the application of art. 2(1)(d), such claims will not be subject to limitation. There is an apparent conflict. I do not agree with [Counsel for the appellant] that no conflict arises in that these provisions only partially overlap and point the same way.

62    This passage was cited by Keane NPJ at [12]. It is apparent that the issue of the proper construction, absent any redundancy, was squarely before the Court. It was taken up by Keane NPJ at [31], where his Honour said, “The evident purpose of art. 18(1) can be achieved only if reservation by a Contracting State is effective in disapplying art. 2(1)(d) even though the expenses of wreck removal might also fall within the language in which other kinds of claims are described in art. 2(1)”. Further, in dealing with the appellant’s assertion that McPherson J’s reasoning in The Tiruna that the exclusion of Art 1(1)(c) of the 1957 Convention “achieved nothing” if recourse claims were limitable under Art 1(1)(b) was “factually wrong”, Keane NPJ said at [46]:

This criticism is not persuasive: the point is not about whether the exclusion of art. 1(1)(c) of the 1957 Convention would be rendered redundant, but whether the appellant’s proposed construction would result in incoherence in the operation of the scheme of the Convention and the Ordinance.

63    To the extent that the primary judge, at PJ[143], disavowed reliance on The Star Centurion on the basis that it proceeded on a fundamental misconception of the argument as to redundancy, we respectfully disagree.

64    The interaction between Art 2(1)(d) and Art 18(1) has also been considered by the Supreme Court of the Netherlands in Scheepvaartbedrijf MS Amasus BV v ELG Haniel Trading GmbH (The Wisdom) (ECLI:NL:HR:2018:140, 2 February 2018, per EJ Numann VP, G Snijders, MV Polak, TH Tanja-van den Broek, CH Sieburgh JJ). The Wisdom, owned by Amasus, collided on the Oude Mass near Rotterdam with the barge Riad, which sank along with its cargo of ferro-chromium. Cargo interests paid the wreck removal and cargo recovery expenses to the State as required under Dutch law and sought to recover those costs from Amasus.

65    The 1976 Convention is enacted in Dutch law by title 8.7 of the Dutch Civil Code and The Netherlands has exercised its right of reservation under Art 18(1). Nevertheless, under Art 8:755 of the Civil Code, it remains possible to limit claims falling within Arts 2(1)(d) and (e) if a domestic “wreckage fund” is established, in addition to the general limitation fund. The hull insurer of The Wisdom established a general limitation fund, and the P&I insurer established a domestic wreckage fund.

66    The question before the Supreme Court was whether a recourse claim relating to wreck removal and the raising of cargo fell within Arts 2(1)(d) and (e), such that the claim was subject only to limitation under the domestic wreckage fund and not subject to general limitation because of the reservation under Art 18(1). Consistently with the approach taken in The Star Centurion, the Supreme Court held that such claims did fall within Arts 2(1)(d) and (e) and so were subject to the domestic fund only.

67    The Supreme Court observed (at [3.6.8]) that “the subjects referred to in Article 2, Paragraph 1 of the [1976 Convention] may overlap, and a claim may therefore be subject to limitation on various grounds listed in that provision”, but said (at [3.6.9]) that “this concurrence does not lead to questions of interpretation because the same limits … apply in both cases”. The Court observed, however, that the position is different when a reservation has been made, in which case Art 18(1) precludes limitation under Arts 2(1)(d) and (e). It was argued, in the alternative (as TasPorts contends here), that Art 18(1) “exclusively pertains to (recourse) claims by waterway authorities and therefore does not apply to claims by shipowners”. That argument was rejected, at [3.7.2]:

There is no ground for an explanation that the reservation of Article 18, Paragraph 1, [1976 Convention] only pertains to (recourse) claims by waterway authorities and therefore does not apply to (recourse) claims by shipowners. The text of Article 18, Paragraph 1, [1976 Convention] does not contain this restriction. The other provisions of the [1976 Convention] and the Travaux Préparatoires also do not provide any basis for adopting this limitation … Furthermore, there is no justification for the outcome to which acceptance of the opinion of the grievance would lead, namely that the shipowner would not be able to seek recourse against the person who caused the collision to the same extent as for a waterway authority to take recourse against the ship owner, because the person by whose fault caused the collision, other than the ship owner, can limit his liability on the basis of Article 2, Paragraph 1, opening lines and under a, [1976 Convention].

68    The primary judge found the decision in The Wisdom to be of no particular assistance because the Supreme Court’s reasoning was “significantly based on the particular provisions within the Dutch Civil Code establishing the separate liability regime for wreck claims, and the rationale underlying that regime” (PJ[148]). True it is that a common law approach to the interpretation of Art 2(1) was not taken by the Supreme Court, but it is tolerably clear that the Court reasoned by reference to the general principle that an instrument should be given effect as a coherent whole and was not simply relying on a literal textual analysis. Thus, as the Supreme Court rightly observed, there was no need to concern oneself with difficult questions of the construction of literal overlap where no reservation has been made, because the limits are the same. Where, however, a reservation has been made, the Supreme Court concluded that, regardless of any special provision in Dutch law, it precludes any claim for wreck and cargo removal expenses under Art 2(1); that is, the reservation has picked up the specific provision and no claim remains possible under the more general provisions, irrespective of any special provision in Dutch law. Further, the Supreme Court reasoned by reference to the desirability of the coherence of the Convention by illustrating the anomalous consequences that would flow from an alternative construction. In our view, this is an important decision of a Superior Court, of a country with significant shipping interests and consequent shipping litigation, which has construed an international convention and so is one that demands close consideration.

69    The same conclusion was reached on the same day by the Supreme Court of the Netherlands, constituted by the same bench, albeit in a different case which gave rise to the same question of construction – Eitzen Chemical (Singapore) Pte Ltd v VOF G Idzenga Scheepvaartbedrijf (The Sichem Anne and The Margreta) (ECLI:NL:HR:2018:142, 2 February 2018, per EJ Numann VP, G Snijders, MV Polak, TH Tanja-van den Broek, CH Sieburgh JJ). This Court was not referred to this case in argument on the appeal.

70    The Wisdom was not followed in Twitt Navigation Ltd v The State represented by the Defence Department (21-058354TVI-THOD/TBER, 16 November 2021), a decision of a single judge of the Hordaland District Court in Bergen, Norway. The decision in Twitt was criticised by Keane NPJ in The Star Centurion, at [39], for apparently concluding that on the “objective interpretation” of the Convention, both authority and recourse claims are subsumed under Art 2(1)(d), but nevertheless departing from that interpretation in deference to the travaux préparatoires and a consideration of the 1957 Convention.

71    In Twitt, the State brought a claim against Twitt Navigation Ltd as owner of the tanker Sola TS following a collision with the state-owned frigate KNM Helge Ingstad for, inter alia, wreck removal costs. Twitt Navigation Ltd sought to limit its liability pursuant to §172 or §172a of the Norwegian Maritime Code (Act No. 39 of 1994), which in Chapter 9 codifies the 1976 Convention. §172a of the Maritime Code sets up a special national limitation system for individual claims in connection with “clean-up efforts relating to maritime accidents”. The Court observed, at 3, that “The Maritime Code thus contains a “two-track” system for the right to limit liability, one Convention-based limitation system and one national limitation system”.

72    The Court went on to explain the “central preparatory works in connection with the change in the law and the reservation”. It said, at 16, that the legislators of §172a had expressed that “an important motivation for the use of the right of reservation – insofar as concerns wreck removal costs – was that it was not desired that public authorities should be landed with the financial settlement following large accidents, and that the shipping industry must bear a larger part of the liability”. The Court held that although there appears to be an overlap between paras (a) and (d) of Art 2(1), para (d) was necessary to ensure that claims by public authorities “can similarly be limited by the damaged ship in an accident” (at 15).

73    The Court explained that Norway “followed-up” its reservation under Art 18(1) by setting its own limits of liability in §175a for claims in connection with the raising and removal of wreck covered by §172a(1), a solution which accorded with the approaches of other European Contracting States which have exercised reservations, including the Netherlands. It opined, at 16, that “There does not appear otherwise to have been any precondition on the part of the legislators that §172a should entail any material changes in the situation between the individual provisions of Article 2, no. 1 of the Convention”.

74    The primary judge, at PJ[151], considered the criticism of the decision in Twitt by the Hong Kong Court of Final Appeal in The Star Centurion to be misplaced because it rested on the premise that everything that is in para (d) of Art 2(1) is also within paras (a) or (c). Putting that criticism to one side, the decision in Twitt is of limited assistance, except to the extent that it draws attention to the legislative intention behind the provisions of the Norwegian Maritime Code implemented subsequent to Norway’s exercise of the Art 18(1) reservation and to some academic commentary on the effect thereof.

75    We consider Twitt to be of little assistance to the resolution of the present proceedings for two principal reasons.

76    First, the Court in Twitt was not construing the text of the Convention as agreed between States Parties in the same manner as this Court is being asked to do – namely, by reference to the full text of the Convention as annexed to the domestic statute by which it is given effect. The Hordaland District Court was construing the text of the Norwegian Maritime Code, which rewrites the provisions of the 1976 Convention in language that does not necessarily accord with the official text of the Convention. For that reason alone, the textual analysis undertaken by the Norwegian Court is of limited assistance.

77    Secondly, as was made plain in the writings of Professor Trond Solvang of the Scandinavian Institute of Maritime Law expressed in an article published in 2016, “Some reflections concerning the scope of the Maritime Code section 172a” (Simply 2016, MarIus No. 482, Sjørettsfondet) to which the Court referred, the case turned on a close analysis of the interaction between two provisions of the Maritime Code, one of which enacts a special regime in respect of wreck removal expenses which finds no equivalent in the 1976 Convention. Accordingly, the Court based its decision upon an analysis of the Norwegian Marine Law Committee’s assessments in 1980 and 2002 of the relevant legislative proposals, and preparatory materials of the relevant Department within the Norwegian Government.

78    After surveying the case law on which TasPorts primarily relied to contend that its wreck removal claims are not subject to limitation, the primary judge arrived (PJ[119]) at a construction of Art 2(1)(d) which does not limit the plain meaning of Arts 2(1)(a) and (c), but which does restrict the plain meaning of Art 2(1)(d) to “the strict liability statutory claims of a public authority against the owner of a wreck for the costs and expenses of removing that wreck”.

79    Before this Court, CSL drew attention to an additional international decision, being that of the Supreme Court of South Korea in Partenreederei MS Alexandria v China Shipping Development Co Ltd (The Alexandria) (99Da9646, 9653, 9660, 9677, 22 August 2000). In that case, the relevant enactment of Art 2(1)(d) of the Convention was Art 748(4) of the South Korean Commercial Act, which provided:

The shipowner shall not limit his liability for the following claims:

…

(4)    claims arising in connection with the lifting, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, its cargoes, and any other thing that is or was on board on such ship.

80    The Court concluded that this provision does not permit a shipowner to limit its liability for wreck removal claims if it is statutorily liable for wreck removal, but that a recourse claim remained limitable under Arts 746(1), (3) or (4) of the Commercial Act. Significant to the Court’s reasoning was that the language of those latter provisions spoke of “a claim caused by …”, rather than a claim “arising in connection with …”. In circumstances where it is clear that the Supreme Court of South Korea was interpreting the particular wording of its own domestic statute, which does not accord with the wording of the 1976 Convention, its decision is of no assistance in the present case.

History and travaux préparatoires

81    Consistent with an orthodox approach to the construction of an international treaty, his Honour next considered the history of the 1976 Convention, and in particular the travaux préparatoires. Having done so, the primary judge was fortified in his view that (PJ[190]):

… Art 2(1)(d) of the 1976 Convention was conceived of and intended to include claims within the heads of limitable claims that were not otherwise regarded as being included, and the principal objective in allowing for a reservation from that paragraph was to enable States Parties to exclude the claims of harbour authorities from being limitable.

(Emphasis added.)

82    To the extent that the Notice of Appeal challenges the primary judge’s regard to the travaux préparatoires and the predecessors to the 1976 Convention, the challenge is without foundation. Grounds 2(d) and (h) of the Notice of Appeal cannot be sustained.

83    We accept that there is some academic commentary that accords with the view expressed by the primary judge. In this regard, see Gaskell and Forrest (at p 105) who write: “Article 2(1)(d) and (e) were designed to deal with direct claims by the person who actually suffered loss or expense as a result of the wreck, and the reservation power in Art 18 was designed to ensure that States had a cause of action against the wrecked ship that was not subject to limitation”, and Martínez Gutiérrez (at p 101) who writes, citing Griggs, Williams and Farr, Limitation of Liability for Maritime Claims (4th ed, LLP, 2005), that “it must be recalled that the purpose of Article 2(1)(d) and (e) was to prevent public entities footing the bill for the removal of wrecks”.

84    Reluctant though we are to disagree with the opinions of the learned authors, some of whom attended the diplomatic conferences and who may have been privy to the drafting process for Art 2(1)(d) and (e), we do not consider that the text of the Convention reflects the purpose as stated. The primary judge himself observed that neither Art 2(1)(d) nor Art 18(1) was expressed in a way that allows for a reservation to enable States Parties to exclude the claims of harbour authorities from being limitable, but nonetheless concluded “that was clearly their underlying rationale” (PJ[190]). Regrettably, we are unable to reach such a firm conclusion.

85    First, as we have already observed, the text of the 1976 Convention is silent as to harbour authorities. No canon of interpretation of international treaties would permit the words “claims by harbour authorities” to be read into Art 2(1)(d). The Supreme Court in The MSC Flaminia UKSC, at [153], reached the same conclusion in respect of Art 2(1)(e).

86    Secondly, there was an important textual change as between the 1957 Convention and the 1976 Convention, being in the chapeau to Art 2(1) stipulating that the claims therein are subject to limitation “whatever the basis of liability may be”. Thus, a reservation in respect of one of the claims listed in Art 2(1) means that it cannot be limited, whatever the basis of liability – be that strict liability to a port authority, a recourse claim against a wrongdoing ship, or an indemnity claim in respect of a shipowner’s own ship. Further, Art 2(2) makes clear that where Art 2(1)(d) is not the subject of a reservation, recourse claims or those for an indemnity under a contract or otherwise are included within that head of claim. Thus, a reservation in respect of Art 2(1)(d) is a reservation in respect of all claims that meet the description in para (d), not merely in respect of strict liability claims by harbour authorities.

87    If a recourse claim within Art (2)(1)(d) were able to be limited pursuant to Arts 2(1)(a) or (c), that would be allowing in by the back door a claim that has, on the face of the instrument itself, been excluded. As Griggs, Williams and Farr observe at 23-24, “It would be strange if a claim which is specifically described in a sub-paragraph of Article 2(1) and specifically excluded by parliament, should find its way back in through more general wording in another sub-paragraph”.

88    Thirdly, just as Males LJ in The MSC Flaminia (No 2) was unable to draw from Longmore LJ’s formulation that the object or purpose of the 1976 Convention was to extend a charterer’s right to limit beyond that already conferred under the 1957 Convention, so too are we unable to find any hint that the object or purpose of the 1976 Convention is to extend the right to limit to wreck removal undertaken only by a harbour authority.

89    Fourthly, nothing in the history of the 1976 Convention, nor in the travaux préparatoires, supports the proposition that Art 2(1)(d) was intended to extend limitation to wreck claims that would otherwise not fall within Arts 2(1)(a) or (c), being claims by harbour authorities. So far as the history of the Convention is concerned, Lord Clarke of Stone-cum-Ebony (with whom Lords Sumption, Mance, Hodge and Toulson agreed) explained in Gard Marine and Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) [2017] UKSC 35; [2017] 1 Lloyd’s Rep 521 at [75] that:

… I would regard the existence and terms of a previous international convention (even if not made between all the same parties) as one of the circumstances which are part of a conclusion of a new convention but recourse to such earlier convention can only be made once the ordinary meaning has been ascertained. Such recourse may confirm that ordinary meaning. It may also sometimes determine that meaning but only when the ordinary meaning makes the convention ambiguous or obscure or when such ordinary meaning leads to a manifestly absurd or unreasonable result.

90    It will be recalled that Art 1(1)(c) of the previous Convention, being the 1957 Convention, provided that liability could be limited, inter alia, in respect of “any obligation or liability imposed by any law relating to the removal of wreck … and any obligation or liability arising out of damage caused to harbour works …”. As was the subject of the dicta in The Tiruna, and as referred to in The Star Centurion, any State Party could make a reservation in respect of Art 1(1)(c), thereby excluding the right to limit claims arising from any obligation or liability imposed by any law relating to, inter alia, the removal of wreck. A clear distinction had been drawn in Art 1(1)(c) between liability of that type, statutory liability, and liability arising out of damage caused to harbour works etc: Francesco Berlingieri, International Maritime Conventions: Volume 2 (informa, 2015) at p 339. Such a construction is consistent with the travaux préparatoires where several delegates, including Australia’s, expressed their inability to commit their country to that provision in circumstances where the domestic law placed an obligation on a shipowner to remove a wreck.

91    The travaux préparatoires to the 1976 Convention which were relied on by the parties and by the primary judge are those collected in an edited publication of the Comité Maritime International (CMI) – Francesco Berlingieri, The Travaux Préparatoires of the LLMC Convention, 1976 and of the Protocol of 1996 (CMI, 2000) (CMI Travaux).

92    As the editor explains in the Preface to that work, Professor Berlingieri has collected “all the travaux préparatoires” and published them “arranged under each individual article of the Convention and of the Protocol”. The travaux préparatoires for the 1976 Convention include: Reports of the Chairman of the CMI International Sub-Committee, the CMI Hamburg Conference (April 1974), the CMI Introductory Report to the Intergovernmental Maritime Consultative Organization (IMCO) (May 1974), the records of the sessions of the Legal Committee of IMCO, and the official records of the Diplomatic Conference of 1976.

93    The documents in the original form were not before the Court. It is made clear in the publication, in so far as the proceedings of the Diplomatic Conference have been reproduced, that it is in the form of “Summary Records” of those meetings. For this reason, it is necessary to be cautious in treating these summaries as reflective of all of the discussions that took place. For present purposes, we assume that the summaries are accurate but necessarily incomplete. Nevertheless, for completeness we turn to consider them below.

94    Between 1972 and 1974, the CMI prepared two draft documents to revise the 1957 Convention. The first was in the form of a Protocol to amend the 1957 Convention; the second was a proposed new Convention. The drafts were submitted to the CMI Hamburg Conference in April 1974 (CMI Travaux at p 2).

95    The second of these documents became known as “The Hamburg Draft” and proposed the text of Art 2 in the following terms (showing the mark-up from the CMI’s original “Working Paper” in the form of a draft) (CMI Travaux at pp 427-428):

Article 2    

Claims subject to limitation

(1)    Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

(a)    claims in respect of loss of life or personal injury or loss of or damage to property, including consequential loss, (including damage to harbour works, basins and waterways), occurring on board or in direct connection with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;

(b)    claims in respect of other loss in direct connection with the operation of the ship or salvage operations, not capable of being based on contract;

(b)    claims in respect of loss resulting from delay of cargo which has been received for transport under a bill of lading;

(c)    claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship or salvage operations;

(c)(d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything carried on board such ship;, and damage caused to harbour works, basins and navigable waterways;

(d)(e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;

(e)(f) claims in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.

(2)    Claims set out in the preceding paragraph shall be subject to limitation of liability even if brought in an action for contribution or indemnity under a contract or otherwise.

96    The primary judge referred (PJ[181]) to the Second Report of the Chairman of the CMI Working Group to the Hamburg Conference in April 1974, who had said in respect of the Working Paper that sub-para (a) “gives the main definition: claims in respect of personal injury and (physical) damage to property and loss in consequence of such damage (such as loss of profit), arising in direct connection with the operation of the ship or salvage operations”. Sub-paragraph (b) (which later became Art 2(1)(c) of the Convention) was said to be “intended to take care of ‘abstract loss’”. The Report then said (CMI Travaux at p 60):

Subparagraphs (c), (d), (d) [sic] and (e), corresponding to §1° c) of Article 1 of the Convention, are not on the same level as the two previous ones. They are necessary insofar as they define limitable claims which are not covered by (a) and (b), such as wreck removal and the rendering harmless of the cargo, but may be misleading insofar as they provide for limitation of liability for claims which are limitable under (a) or (b), for instance, damage caused to harbour works. The inference may be that liability for damage to harbour works etc is limitable regardless of the condition of (a) or (b), which, of course, is not the intention.

(Emphasis added.)

97    What seems to flow from this paragraph is that the intention was, at this stage, to retain the requirement that damage caused to harbour works etc still had to occur “in direct connection with the operation of the ship or with salvage operations”. It says nothing directly about wreck.

98    The original text of the Introductory Report provided the commentary to the Hamburg Draft. The Introductory Report is reproduced in full on the CMI website in Vol III of the “Documentation 1974” of the CMI. It states, on p 380, that the report was prepared by Mr Alex Rein, Chairman of the International Sub-Committee. In other words, the Introductory Report expresses, at its highest, the opinions of the International Sub-Committee of the CMI, not the opinions of the participants at the Diplomatic Conference.

99    As can be seen from the text set out above, by the time of the Hamburg Draft, claims for damage caused to harbour works, basins and navigable waterways had been moved into the proposed draft of Art 2(1)(a), consistent with the inference that had been drawn in the Second Report of the Chairman of the CMI Working Group that such losses still had to occur in direct connection with the operation of the ship or salvage operations in order to be limitable.

100    The relevant commentary to the Hamburg Draft within the Introductory Report stated the following:

The first paragraph of this article contains the positive description of claims subject to limitation and certain adjustments are made in Articles 3 and 4 (p 400).

Sub-paragraph (a) is the hard core in the definition of limitable claims: claims arising from loss of life or personal injury or loss of or damage to property. The words « loss » and « damage » in this connection are used in the concrete sense: physical loss and, broadly speaking, physical damage. The words are used in the same sense both in Article 1 of the 1957 Convention and in Article 4, 1, iv), of the 1967 Liens and Mortgages Convention… It was felt, however, that consequential damage should be specifically mentioned, and, in order to indicate that both concrete and abstract damage are included, the term consequential « loss » was adopted in lack of a better word (p 400).

The words within parentheses (damage to harbour works, etc.) should not be necessary, but have been inserted because in some countries the courts will not accept that claims for such damage are subject to limitation unless specifically stated (p 402).

Sub-paragraphs (d) and (e), equivalent to Article 1, 1°, c) of the 1957 Convention, are necessary in addition to the previous sub-paragraphs in order to make claims for wreck removal and removal of cargo subject to limitation (p 404).

(Emphasis added.)

101    The primary judge drew from this commentary that “Paragraphs (b), (d), (e) and (f) were seen as necessary insofar as they defined limitable claims which were not covered by (a) and (c)” (PJ[181]). This went to the redundancy point that his Honour was considering. However, in considering the coherency of Art 2 when read with the balance of the 1976 Convention, and in particular with respect to Art 18, in our view it does not follow that such claims were being included in, relevantly, sub-paragraphs (d) and (e), only to the extent that they did not otherwise fall within sub-paragraphs (a) or (c). We draw a different conclusion, namely that by deliberately moving claims for damage to harbour works etc into (a), it was not contemplated that any claims for wreck or cargo removal would fall within (a), hence the need to add (d) and (e) “in order to make claims for wreck removal and removal of cargo subject to limitation”.

102    It is therefore also instructive that the new Convention placed the liability arising out of damage to harbour works etc into Art 2(1)(a) and so made it limitable, whilst placing liability relating to wreck, not restricted to that imposed by a law, but whatever the basis of liability may be, in its own sub-paragraph (d). The primary judge concluded (PJ[172]), that:

… the inclusion of wreck liability within the descriptions of claims subject to limitation was intended to extend limitation to such claims that were not otherwise covered by the other described claims, and that the provision for reservation in relation to that extension was motivated by a concern that shipowners should not be able to limit their liability to port and other authorities for the expenses incurred in the removal of their own wrecks … In none of the debates is there any discernible concern with regard to limiting a shipowner’s liability for claims against it in respect of the removal of some other shipowner’s wreck.

(Emphasis added.)

103    The primary judge was correct to say that the inclusion of wreck liability within the claims subject to limitation was intended to extend limitation, but the intended extension was to all claims in respect of wreck liability, not simply those that were otherwise not within the literal scope of Art 2(1)(a) or (c).

104    The record of the debate concerning Art 2(1)(d) and (e) at the Diplomatic Conference on 3 November 1976 is short (CMI Travaux at pp 75-76). Japan indicated that, unless there was a power of reservation to those sub-paragraphs, it would have great difficulty in accepting the Convention. Canada had submitted an amendment to the Japanese proposal that it wanted discussed at a later point, after discussion of Art 6 and the reservation clause. The vote of delegates taken on that day was as to whether claims arising from damage to harbour works should be treated equally with other property claims. There was no suggestion that wreck claims would be treated likewise.

105    Another part of the travaux préparatoires referred to by the primary judge (at PJ[182]) was an observation made by Lord Diplock, representing the United Kingdom, at the twenty-first meeting of the Diplomatic Conference on 15 November 1976 during the debate as to the general limits to be set by Art 6. The debate on that occasion concerned the limits of liability for property claims if harbour works were to be included. The Danish delegate expressed the view that harbour works should be included, but would accept the possibility of a reservation as regards wreck removal (CMI Travaux at p 190). There was no unanimity as to whether reservations should be permitted in respect of either or both harbour works or wreck at this stage of the debate. It was in this context that Lord Diplock explained (CMI Travaux at p 192):

… that it appeared that the obstacle in the way of acceptance of the proposal was the third assumption as it related to harbour works. When the subject had been discussed in the compromise group, it had been proposed that claims in respect of damage to harbour works should be included in the Convention, because such damage was readily insurable, but that claims regarding wreck removal should be excluded, because damage of that type was almost uninsurable.

106    From this passage, and an observation in Hazelwood and Semark, P&I Clubs: Law and Practice (4th ed, Lloyd’s List, 2010) at p 178 to the effect that liability for wreck removal is within standard P&I cover, the primary judge concluded (PJ[182]):

… it is apparent that what lay at the heart of the wreck removal claims under consideration were the claims of authorities against owners for the expenses in removing their wrecks from public waterways …

107    TasPorts contended by Ground 2(f) of the Notice of Appeal that the primary judge erred in taking judicial notice of “contestable propositions as to what insurance would or would not be available to different parties in wreck removal situations” in 1976. To the extent that the primary judge referred to what was said in relation to insurance during the Diplomatic Conference, he cannot be criticised. It is, however, unnecessary to deal with this specific ground of appeal in light of the conclusion we have reached as to the proper construction of Art 2(1).

108    In any event, in our respectful view, a distinction was being made between claims concerning harbour works on the one hand, and wreck removal claims on the other – for example: whether either or both should be limitable claims; whether either or both should be given priority in the settlement of claims; and whether either or both should be subject to a reservation.

109    The question of a reservation for claims arising out of wreck removal was an issue discussed repeatedly by the IMCO Legal Committee and throughout the Diplomatic Conference, notably from the fourth meeting on 3 November 1976 (CMI Travaux at pp 203-209), and then at the eleventh meeting on 8 November 1976 (CMI Travaux at pp 132, 149, 209), at the nineteenth meeting on 12 November 1976 (CMI Travaux at pp 181, 210), at the twenty-first meeting on 15 November 1976 (CMI Travaux at pp 190-192, 210-211), at the twenty-second meeting on 16 November 1976 (CMI Travaux at pp 133, 192-195), and at the twenty-fifth meeting on 17 November 1976 (CMI Travaux at p 77).

110    At the twenty-fifth meeting on 17 November 1976, the Chairman, in response to a request for clarification from the Japanese delegate, confirmed that the assumption concerning wreck removal in the document then under discussion was that States should be entitled to make a reservation in respect of wreck removal covering both Art 2(1)(d) and (e), but whether a reservation should be allowed in respect of damage to harbour works etc was an open question. The delegates decided to inform the Chairman of the Drafting Committee that agreement had been reached in relation to a reservation in respect of wreck removal claims. At the twenty-first meeting on 15 November 1976, the delegates had already voted against the proposal to allow States to make reservations with respect to claims for damage to harbour works (CMI Travaux at p 213).

111    There was very little debate in relation to the substance of Art 18(1) once it had been agreed that a reservation in respect of Art 2(1)(d) and (e) would be permitted. Article 18 was in fact considered only by the Drafting Committee, not by the IMCO Legal Committee or the Legal Committee of the Whole, and was presented to the delegates at the Final Plenary Meeting on 19 November 1976 (CMI Travaux at p 386). What debate did take place was focussed on whether the second sentence of Art 18(1), “No other reservations shall be admissible”, should be deleted.

112    In our view, to the extent that the summary of the travaux préparatoires relied upon in this appeal is informative on the question of construction – which for the reasons set out above we consider to be limited – we consider that it is either equivocal or supportive of the construction that we prefer. That construction has the benefit of avoiding the incoherence adverted to in The Star Centurion at [34], with the added important benefit of bringing the law of Australia into line with that decision and two unanimous decisions of the Supreme Court of the Netherlands.

113    In CSR Ltd v Signa Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 at 395-396 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, the High Court endorsed the statement of the Supreme Court of the United States in Hilton v Guyot (1895) 159 US 113 at 163-164 that:

“Comity”, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

114    In maritime law, the concept of comity is of especial importance. That is because it is not the law of any one nation, but is developed separately from, and independently of, national laws. In Lauritzen v Larsen [1953] USSC 62; 345 US 571 at 581-582, Jackson J referred to the “force of maritime law” as stemming from “acceptance by common consent of civilised communities of rules designed to foster amicable and workable commercial relations”. The former Chief Justice of this Court, the Hon James Allsop AC, has described this law as pursuing the aims of “stability, comity, forbearance, reciprocity and long-range national interest” in order to “avoid parochial national jealousies and competing laws governing international conduct, in particular commercial conduct”: JL Allsop, “Maritime Law: The Nature and Importance of its International Character” (2010) 84 Australian Law Journal 681 at 691.

115    The present case is one which has at its centre the proper interpretation of an article of an international convention which has been acceded to by 54 States (the 1976 Convention simpliciter) and 61 States (the 1996 Protocol). Where there is jurisprudence of other superior courts, which have considered the very same issue, particularly a superior court of a congruent jurisdiction, and where the reasoning of those courts is compelling, it would be contrary to the principles of comity to adopt an alternative construction unless convinced that those decisions were plainly wrong in the context of the enactment of the 1976 Convention by the Parliament of Australia. We are not so convinced. Indeed, we consider the decisions of the Hong Kong Court of Final of Appeal in The Star Centurion and of the Supreme Court of The Netherlands in The Wisdom and in The Sichem Anne and The Margreta to be persuasive.

The redundancy question

116    In light of the conclusion we have reached on the coherency question, it is unnecessary to consider whether the primary judge ought to have found that there was a complete redundancy of the right of reservation in relation to Art 2(1)(d) and so preferred an alternative construction of Art 2(1) than that at which he arrived.

Notice of contention

117    In its notice of contention, CSL contends that the primary judgment should be affirmed on the ground that Art 2(1)(d) of the Convention only applies to claims in respect of the raising, removal, destruction or the rendering harmless of the “limiting ship”. This stems from the observations at PJ[110]:

Returning to para (d), it is perhaps noteworthy that the indefinite article “a” is used in relation to the sunken, wrecked, stranded or abandoned ship. That is in contrast to paras (a), (c) and (e) that use the definite article “the”. In each of those cases it is the ship in respect of which limitation is claimed and calculated, i.e. the limiting ship, that is referred to. It was not expressly argued by CSL that the “ship” referred to in para (d) is necessarily the limiting ship and not a different “innocent” ship that has become sunk, wrecked, stranded or abandoned. Particularly with reference to the history of the inclusion of para (d) and its predecessors in the 1924 and 1957 Conventions, there is a powerful argument to be made that para (d) is to be interpreted as referring only to the limiting ship notwithstanding the use of the indefinite article (which is the case also in the French text – “un navire”).

118    The primary judge went on to postulate that it may be that the indefinite article was used inadvertently, however, because that interpretation was not argued, his Honour proceeded at PJ[111] on the assumption that wreck removal claims in relation to the removal of the wreck of a ship other than the limiting ship come within sub-paragraph (d).

119    CSL contends now that sub-paragraph (d) should be construed as referring only to limitation by reference to the ship identified in that sub-paragraph, namely the wrecked ship. Consequently, it submits, CSL’s claim to be entitled to limit any liability it may have for TasPorts’ para 22(e) claims by reference to the tonnage of the Goliath does not fall within Art 2(1)(d).

120    However, in our view the construction for which CSL contends is not supported by the text of the 1976 Convention. We do not consider it to be apparent that there was an inadvertent use of the indefinite article. Indeed, the 1957 Convention referred to wreck removal claims in respect “of any ship” (Art 1(1)(c)). Article 2(1)(d) preserves the status quo in that regard. Further, nothing in the travaux préparatoires supports such a construction. Inadvertence in the use of the indefinite article in the later convention is unlikely.

121    Further, as TasPorts submitted, no fundamental difficulty arises from a literal reading of Art 2(1)(d). Assume two ships have collided and both are exposed to claims for wreck and hydrocarbon removal. Each will have its own limitation amount calculated in accordance with Art 6, regardless of the basis of liability for the claims against the respective ships.

Disposition

122    For these reasons, the appeal must be allowed with costs.

123    As Australia has made a reservation under Art 18(1) of the 1976 Convention, Arts 2(1)(d) and (e) have no application in Australia. Thus, claims in respect of wreck removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such a ship, whatever the basis of liability for those claims, cannot be the subject of limitation in Australia. There is no basis for restricting Art 2(1)(d) to claims made by public authorities.

Associate:

Dated:    29 April 2025

SCHEDULE OF PARTIES

NSD 1092 of 2024

Respondents

Fourth Respondent:        VIVA ENERGY AUSTRALIA LTD ACN 004 610 459

Fifth Respondent:     PERSONS WHO MAY HAVE A CLAIM WITHIN THE MEANING OF ARTICLE 2 OF CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976 (AS AMENDED BY THE 1996 PROTOCOL TO AMEND CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976)