Federal Court of Australia

CSL Australia Pty Ltd v Tasmanian Ports Corporation Pty Ltd (The Goliath) [2024] FCA 824

ORDERS

THE COURT ORDERS THAT:

1.    Prayers 1 and 3 of the first defendant’s notice of cross-claim filed on 18 October 2023 be dismissed.

2.    Costs be reserved.

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

REASONS FOR JUDGMENT

STEWART J:

A.    Introduction

1    On 28 January 2022, the motor vessel Goliath, a self-loading bulk cement carrier, was manoeuvring to berth in the Port of Devonport, Tasmania. At about 11.45 am, the vessel allided with two tugs and a wharf owned and operated by Tasmanian Ports Corporation Pty Ltd (TasPorts). The two tugs were moored side by side alongside the wharf. They sank emitting diesel fuel and other hydrocarbons into the Mersey River. The tugs were the York Cove and the Campbell Cove.

2    TasPorts commenced a proceeding in the Court (NSD363/2022) against CSL Australia Pty Ltd, the owner and operator of the Goliath. TasPorts asserts causes of action for breach of the contract under which the Goliath entered the port, in negligence and in public nuisance. TasPorts claims $2.17 million for the loss of the tugs, $114,869 for the loss of hydrocarbons, $2,958,595 for the hire of replacement tugs and $117,152 for the damage caused to the wharf.

3    TasPorts also claims about $17,245,743 for:

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.

(I will refer to these claims as the para 22(e) claims with reference to the relevant paragraph of the amended statement of claim.)

4    The particulars for the para 22(e) claims identify that they include the following:

(1)    costs of managing and coordinating the containment, removal and disposal of hydrocarbons and subsequent removal of the tugs;

(2)    fees paid or payable to United Salvage Pty Ltd to:

(a)    recover and dispose of the hydrocarbons that were released from the tugs and to contain, remove and dispose of the hydrocarbons that remained in the tugs following the allision; and

(b)    remove the tugs from the port and deliver them to a disposal contractor in the Port of Brisbane; and

(3)    fees paid or payable to Birdon Pty Ltd to deconstruct and lawfully dispose of the tugs.

5    TasPorts’ para 22(e) claims are not recourse claims or for an indemnity. That is, they do not arise from any liability that TasPorts may have had to, for example, a harbour or other authority for the removal of the wrecks of the tugs or to clean-up the oil spill. Also, the spilt oil was not cargo; it was bunker fuel and lubricants for the operation of the tugs.

6    CSL later 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 Convention on Limitation of Liability for Maritime Claims (1976) as amended by the Protocol of 1996 to amend the Convention on 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 Organization (collectively, the 1976 Convention). The 1976 Convention, save for Arts 2(1)(d) and (e), is given the force of law in Australia by s 6 of the Limitation of Liability for Maritime Claims Act 1989 (Cth) (Limitation Act). CSL also sought to establish a limitation fund pursuant to Art 11 of the 1976 Convention in the amount of 7,401,416 SDRs (special drawing rights of the International Monetary Fund) based on the gross tonnage of the Goliath.

7    In the limitation proceeding, TasPorts pleads in its defence against limitation that its para 22(e) claims are not subject to limitation under the 1976 Convention because they are claims within Art 2(1)(d) which is not given the force of law in Australia. The claims described by Art 2(1)(d) are conveniently referred to as wreck removal claims although, as will be seen, their description is broader than only wreck removal. TasPorts also pleads that by reason of cl 26.2 of its standard terms and conditions of port access (STCs) under which the Goliath is said to have entered the Port of Devonport, any right that CSL would otherwise have possessed to limit liability to TasPorts under the 1976 Convention was contractually excluded or waived.

8    That is to say, TasPorts contends, with reference to its STCs, that CSL has no right to limit in respect of any of TasPorts’ claims. In the alternative, it contends that if CSL has a right to limit in respect of the claims, that excludes TasPorts’ wreck removal claims in Art 2(1)(d) of the 1976 Convention. TasPorts contends that its para 22(e) claims are such claims, but that need not be determined at this stage.

9    On 21 June 2023, Rares J made orders entitling CSL to constitute a limitation fund pursuant to Art 11 of the 1976 Convention by the provision to the Court of a letter of undertaking by the Standard Club UK Ltd, the protection and indemnity club in which the Goliath was entered. Such a letter of undertaking, dated 27 June 2023, was provided to the Court on 28 June 2023. It establishes a limitation fund of $15,704,201 consisting of $14,605,768 (being the Australian dollar value of the SDR amount at the time of the constitution of the fund) and $1,098,433 (being simple interest on that amount from the date of the allision until the date of the constitution of the fund). Further interest continues to accrue on the limitation fund amount.

10    On 25 September 2023, Rares J made orders declaring that CSL is entitled to limit its liability (if any) for all claims within the meaning of Art 2 of the 1976 Convention for loss and/or damage arising out of the allision to the limitation amount of 7,401,416 SDRs. However, that declaration was made subject to the determination of declarations sought by TasPorts in a cross-claim then still to be filed as to whether CSL is not entitled to limit its liability in respect of, first, wreck removal claims as described in Art 2(1)(d) of the 1976 Convention and, secondly, all of TasPorts’ claims by reason of its right to limit being excluded by contract between CSL and TasPorts.

11    TasPorts then filed a cross-claim in which it seeks, relevantly, the following declarations based on its contentions with regard to the restrictions on CSL’s right to limit:

1.    A declaration that [CSL] is not entitled to limit its liability pursuant to the Limitation of Liability [for] Maritime Claims Act 1989 (Cth) (the Act) to [TasPorts] 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 [sic] 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.

…

3.    Alternatively, a declaration that by reason of clause 26.2 of the [STCs] any right that [CSL] would otherwise have possessed to limit its liability to [TasPorts] under the Act has been contractually excluded or waived, with the result that [CSL] cannot limit its liability in respect of any claims made against it by [TasPorts].

12    On 8 December 2023, I ordered that the determination of those declarations take place separately from the balance of the proceeding. It is those declarations that are presently before me for determination.

13    The claims currently asserted against CSL arising from the allision amount to approximately $24.5 million plus interest. They are the claims of TasPorts in the sum of $21,991,171, of which $17,245,743 is said to be in respect of wreck removal, and those of Viva Energy Australia Pty Ltd (the fourth defendant) for $2,458,043 in respect of pure economic loss for interruption of its business caused by the allision. Neither the liability for nor the quantum of those claims has yet been determined. However, on those figures there is a difference of more than $10 million between the limitation fund amount and the amounts claimed.

14    Viva Energy appeared at the hearing on the separated issues and adopted the submissions made on behalf of TasPorts but did not otherwise advance any independent submissions.

15    For the reasons that follow, I have concluded that the STCs applied but that cl 26.2 does not exclude CSL’s right to limit, and that TasPorts’ wreck removal claims are subject to limitation under Art 2(1) of the 1976 Convention.

B.    The issues

16    Notwithstanding that the issues are presented in the reverse order in the notice of cross-claim, it is logical to deal first with the STCs issue and then with the wreck removal issue because the former covers the latter. The issues for determination are accordingly the following:

(1)    With regard to whether CSL contractually excluded or waived its right to limit liability for the claims of TasPorts:

(a)    Was the agreement between TasPorts and CSL on or about 27 January 2022 pursuant to which the Goliath entered the Port of Devonport on 28 January 2022, subject to TasPorts’ STCs?

(b)    If so, upon its proper construction, does cl 26.2 of the STCs exclude the right of CSL to limit its liability to TasPorts under the Limitation Act?

(2)    With regard to the wreck removal issue, are TasPorts’ 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 was on board the said tugs, limitable under Art 2(1) of the 1976 Convention?

C.    The evidence

17    TasPorts read two affidavits of Phillip Anthony Hoggett, TasPorts’ Group Executive, Commercial & Trade, and an affidavit of Andrew Fletcher, TasPorts’ General Manager, Marine Operations. Neither witness was required for cross-examination.

18    CSL read the affidavit of Joseph Niranjan Abeysena, an employee of CSL who holds the rank of Master. Captain Abeysena was the Master of the Goliath for about 1,000 voyages calling at the Port of Devonport between 2008 and the allision incident. He rejoined the vessel from a period of leave on 21 January 2022 and was the Master of the vessel at the time of the allision. Captain Abeysena was also not required for cross-examination.

19    In addition to the witness evidence, a modest bundle of documents was tendered.

D.    Issue 1: is CSL’s right to limit excluded by cl 26.2 of TasPorts’ STCs?

D.1    Introduction

20    TasPorts asserts that CSL, by cl 26.2 of its STCs, contractually waived or excluded any right to rely on limitation as against it. It is common ground that the limitation regime under the 1976 Convention as given the force of law in Australia can be contractually excluded. There is authority in support of that position: Bahamas Oil Refining Co International Ltd v The Owners of the Cape Bari Tankschiffahrts GMBH & Co KG (The Cape Bari) [2016] UKPC 20; [2016] 2 Lloyd’s Rep 469 at [19]-[20], [27].

D.2    Did the STCs apply?

21    On the question whether the STCs applied to the particular contract for services under which the Goliath entered port on 28 January 2022, it is convenient to begin with the relevant facts.

22    It is a requirement of TasPorts that the entering of, berthing at or departing from one of its major ports, including the Port of Devonport, by any ship should be subject to its STCs. An updated version of the STCs was approved by the TasPorts executive in about September 2020, whereafter steps were taken to notify all of TasPorts’ customers of the new conditions.

23    On 13 October 2020, an email was sent to all TasPorts’ existing customers, including to CSL at an email address that CSL acknowledges is an appropriate email address for that purpose (T80:5-25, 149:28). The subject line of the email and an emboldened heading in the body of the email made it clear that the email was giving notice of TasPorts’ “Updated Terms and Conditions of Port Access”.

24    The email explained that TasPorts had introduced a new port management information system called PortMate. It said that PortMate would enable shipping agents to submit “Movement Requests”, replacing the Vessel Movement Advice. It was said that TasPorts had commenced a transition period with PortMate running alongside the previous system.

25    In bold, the following was then stated:

As part of the introduction of PortMate, TasPorts has also taken the opportunity to update its Standard Terms and Conditions of Port Access to ensure these complement the new system.

26    The email continued:

The revised terms and conditions have not materially changed from the previous version, however we encourage you to familiarise yourself with the revised terms and conditions, attached to this email. The updated Terms and Conditions of Port Access can also be found on our web site at [hyperlink to the STCs].

27    Thereafter, there was a period of transition when CSL and some other major customers of TasPorts whose vessels were on regular schedules were excused from using the PortMate system. Instead, CSL would notify TasPorts of requests to enter the port by submitting spreadsheets setting out the sailing schedule for the relevant vessel. That transition period is said to have ended in about December 2021.

28    From the time that PortMate was introduced until the voyage on which the allision occurred (ie November 2020 to January 2022), the Goliath entered the Port of Devonport approximately 100 times pursuant to requests from CSL by way of notification of sailing schedules. Of those times, with reference to the recorded “Created Date” it can be seen that notifications were made by way of sailing schedules in the period between the email of 13 October 2020 giving notification of the new STCs and 31 October 2020 on five occasions (being those with Visit IDs 1414, 1415, 1475, 1477 and 1540). I will return to the significance of those notifications.

29    For the voyage immediately preceding the voyage in question, CSL made the request for services to enter the Port of Devonport using the PortMate system. That was done by Captain Imran Ali, the then-Master of the Goliath, on behalf of CSL on 18 January 2022 for the vessel’s call on or about 22 January 2022. The request was approved by TasPorts on the PortMate system. It is common ground that that request and approval attracted the application of TasPorts’ STCs. Given the notification in the email of 13 October 2020 of the transition period, there can also be little doubt that on the approximately 105 occasions in which sailing schedules were used, the STCs applied.

30    It is a feature of the PortMate system that when a customer enters a Movement Request, a screen pops up with two buttons, “yes” and “no”, one of which must then be clicked on. The buttons are immediately below a “Confirmation” which includes the following:

It is agreed and understood that:

•     all services provided by Tasmanian Ports Corporation Pty Ltd (TasPorts) including, but not limited to, any services requested in this Movement Request are provided subject to the Terms and Conditions of Port Access;

•    the Schedule of Port Charges referred to in the Terms and Conditions of Port Access also apply to this Movement Request;

•     the Terms and Conditions of Port Access impose obligations on the shipping agent submitting this Movement Request as well as its principal;

•     the shipping agent as well as its principal each acknowledge that they have received, read and understand the Terms and Conditions of Port Access and the shipping agent and its principal agree to be bound by the Terms and

•     the Movement Request is only valid for 30 days from the date of submission. Subsequent movements outside 30 days require an additional Movement Request to be submitted (excluding cruise ships and AAD vessels).

(The underlining indicates hyperlinks to the relevant documents.)

31    It is not possible for a customer to submit the Movement Request unless and until they click on the “yes” button. In submitting the Movement Request, Captain Ali must have clicked on that button, thereby indicating CSL’s assent to the STCs for “all services provided by [TasPorts] including, but not limited to, any services requested in this Movement Request”.

32    Just how Captain Ali came to use the PortMate system is apparent from an email the previous month. Craig Ward, the manager of TasPorts’ Vessel Traffic Services (VTS), sent an email to the generic email address for the Master of the Goliath on 7 December 2021. The salutation in the email is to “Joe and Imran”, being the first names of Captain Abeysena and Captain Ali respectively – the two alternating Masters of the Goliath. The email explained that the PortMate system had been introduced but that up until then VTS had been submitting Movement Requests on “your behalf” – which is consistent with the interim arrangement outlined in [27] above. It said that in future vessels or agents would have to submit their own Movement Requests, and it offered training to the two Masters of the Goliath for that purpose. The email recorded that VTS had entered the vessel’s visits into PortMate for the rest of that month, but that it planned for a transition to the Masters entering their own visits from the commencement of the New Year (ie 2022).

33    It is apparently because of that email, and what that email explains, that Captain Ali entered the vessel Movement Request on PortMate on 18 January 2022 and came to agree, on behalf of CSL, by clicking on the “yes” button that TasPorts’ STCs would apply, at least to the vessel Movement Request in question and possibly also for the later movement in which the allision occurred – I will return to that question shortly.

34    As mentioned, Captain Abeysena rejoined the Goliath from leave as Master on 21 January 2022, relieving Captain Ali. On that day, he replied to Mr Ward’s email of 7 December 2021 detailed above explaining that he had rejoined the Goliath that day and requesting a username and password to enable him to log in to PortMate. He explained that he had registered as a user of PortMate back in August 2020 and he attached an email from then to demonstrate that.

35    Captain Abeysena explained in his affidavit that prior to 27 January 2022, he had not utilised PortMate to make a vessel Movement Request for the Goliath. He made all requests for the vessel to enter the Port of Devonport by emailing a copy of the vessel’s schedules to VTS and by calling VTS to confirm the approval to enter the port limits and berth upon each approach to the port.

36    On 27 January 2022, Captain Abeysena submitted a request to VTS for the Goliath’s scheduled entry into the Port of Devonport the following day. That was done by email to which was attached the vessel’s sailing schedule – named “Goliath Schedule January 22” – for five voyages between 8 January and 7 February 2022. The first three of those voyages between Melbourne and Devonport had been completed, with the identified voyage (Voy 21/071) scheduled to commence “Depart Mel (RFA)” (ie “ring full away”, meaning when on sea navigation speed having departed Melbourne) that day and the vessel to arrive at “Devonport PBG” (ie the pilot boarding ground for the Port of Devonport) the next day, 28 January, at 11.30am.

37    The Goliath was permitted to enter the port on 28 January 2022. From that, I infer that TasPorts accepted the vessel Movement Request in the form of the schedule.

38    Having made the relevant factual findings, I turn now to consider whether, on those facts, TasPorts’ STCs applied to the vessel movement in question.

39    As mentioned, it is common ground that CSL was given proper notice of the new STCs on 13 October 2020. Terms relevant to the question of whether the STCs applied include the following.

40    In cl 1, “Application” is defined to mean a vessel movement advice received by TasPorts at any time before 31 October 2020, or a “Movement Request” or a “Slip Application Form”. The last of those is applicable to the use of a slipway. That did not occur, so it can be put to one side.

41    “Movement Request” is defined to mean either a request submitted electronically via PortMate or “in circumstances where it is not possible to use Port Mate”, a request “communicated to TasPorts in a manner acceptable to TasPorts”.

42    Clause 2(a) provides that by completing and submitting an “Application”, the customer and its agent each “acknowledge that they have received, read, understood and agree” that the STCs “are expressly incorporated into the agreement evidenced by the completed Application”.

43    The question whether the STCs applied by their terms thus turns on whether there was an “Application”, which in turn depends on whether there was a “Vessel Movement Advice” before 31 October 2020 or a “Movement Request” as defined.

44    As mentioned above, there were five Vessel Movement Advices made and accepted between the time that the new STCs were notified and 31 October 2020. That means that on five occasions, someone on behalf of CSL acknowledged and agreed that the STCs were expressly incorporated into the agreement evidenced by the completed application. That may be sufficient to give rise to incorporation of the STCs into subsequent agreements by way of a course of conduct, but it is not necessary to decide that question because of the other bases for applicability of the STCs.

45    Two possibilities present themselves as potentially applicable Movement Requests in the present case.

46    First, there is the Movement Request made by Captain Ali on PortMate on 18 January 2022 in respect of the immediately preceding voyage. That is not the relevant Movement Request in the sense that the request was not for the intended call of the vessel on 28 January 2022, but rather for the call on 22 January 2022. It nevertheless has relevance because of Captain Ali’s agreement on behalf of CSL that “all services” provided by TasPorts including, but not limited to, any services requested in the Movement Request submitted by him “are provided subject to the [STCs]”.

47    Although I accept that there may be some point of remoteness at which Captain Ali’s agreement that “all services” provided by TasPorts would be subject to the STCs might not apply – whether by the passage of time, change in circumstances, change in the nature of services, services for a different vessel, or change in the place where the services are provided – no such point of remoteness was reached in respect of the subject voyage. In my assessment, Captain Ali’s agreement by clicking the “yes” button applied to the services rendered by TasPorts for the call of the Goliath on 28 January 2022. That is because it was for the same vessel, in the same port, for the same nature of services, for the very next voyage which was only one week away, and it was in respect of a voyage for which TasPorts had already been given notice.

48    I infer the last of those points from the schedule subsequently provided by Captain Abeysena which included full details for the by then already completed first two voyages for January 2022. The schedule must have been provided to, and accepted by, TasPorts for those voyages. That is because the spreadsheet of occasions on which the Goliath berthed in the port from when PortMate was introduced until the subject voyage, and which shows that the third of the January 2022 voyages was notified via PortMate, does not show that the first and second of the January 2022 voyages were notified via PortMate. It stands to reason that they were notified via the submission of schedules that was used for major customers during the transition period, as explained by Mr Hoggett. I draw that as the most natural and probable inference.

49    On that basis, I conclude that the STCs applied to the contract for the services that were requested by Captain Abeysena on 27 January 2022.

50    The second, and alternative, possibility of a Movement Request is the request by Captain Abeysena on 27 January 2022. That request was accepted by TasPorts and was therefore “communicated to TasPorts in a manner acceptable to TasPorts” within the meaning of that phraseology in the definition of Movement Request. However, CSL contends that the requirement that the request be made “in circumstances where it is not possible to use PortMate” was not met, or established, and that the STCs therefore had no application by their terms.

51    There are at least two answers to that contention.

52    It is not explained in the evidence why Captain Abeysena did not use PortMate to make the vessel movement request, and why he followed the previous practice of submitting – or, in this case, re-submitting – the vessel’s sailing schedule. Noting that Captain Abeysena replied to Mr Ward’s email of 7 December 2021 on the first day he returned to the vessel some six or seven weeks later, and he was organised and diligent enough to attach an email from about 18 months earlier to show that he had registered to use PortMate, I infer that he was organised and diligent in the way he went about his work. From that, I also infer that had he been able to, he would have made the subject vessel movement request on PortMate – he had been requested to do so only a week before. That is the most natural and probable inference to draw. It is supported by the appreciation that all evidence is to be weighed according to the proof of which it was in the power of one side to have produced, and in the power of the other to have contradicted: Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. If Captain Abeysena was able to use PortMate and chose instead to submit the movement request in a different way, it was an easy matter for him to have said so in this evidence. It is not something that TasPorts could readily have dealt with in its evidence.

53    Indeed, CSL’s failure to canvass with Captain Abeysena in his evidence in chief why he did not use PortMate for the subject voyage indicates “as the most natural inference” that CSL “feared to do so”. This fear is then “some evidence” that such examination in chief “would have exposed facts unfavourable to [CSL]”: see Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 320-321 per Windeyer J; Commercial Union Insurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-419G per Handley JA with whom Kirby P agreed.

54    On that basis, I conclude that it was not possible for Captain Abeysena to use PortMate within the meaning of the definition of Movement Request.

55    Another answer, which I am also persuaded by, is that properly and sensibly construed, the relevant clause does not require that it was literally “not possible” to use PortMate. In the context of TasPorts’ requirement that all ship movements would be subject to its STCs and its stated transition to PortMate, which was commonly known to the parties through the email of 13 October 2020, and its evident purpose in shepherding all movement requests to PortMate, the Movement Request definition demonstrates a primary requirement that customers use PortMate, but if for some reason they do not do so, and TasPorts accepts the method by which they communicate a movement request, then that also attracts the application of the STCs. That is to say, the phrase “in circumstances where it is not possible to use PortMate” is not a precondition to not using PortMate, but is rather in the nature of instructional information to the customer, ie “you must use PortMate if you can”. It also provides a reason for TasPorts to not accept a movement request other than via PortMate, ie “you can and therefore must use PortMate”.

56    That reading is supported by the consideration that there can be no commercial purpose or rationale to providing for two limited forms of Movement Request which are subject to the STCs yet allowing some other movement request at the customer’s election which would not be subject to the STCs, albeit only if acceptable to TasPorts. Objectively, all relevant applications, if accepted, were intended to be subject to the STCs.

57    On that basis, even if it were “possible” for Captain Abeysena to use PortMate but for some unexplained reason he failed to do so, his Movement Request would nevertheless attract the application of the STCs under para (b) of the definition of Movement Request.

D.3    Does cl 26.2 exclude CSL’s right to limit?

58    The next issue is whether cl 26.2, properly interpreted, excludes CSL’s right to limit liability under the 1976 Convention as given the force of law in Australia. There is no dispute about the proper approach to contractual interpretation in this context. The rights and liabilities of the parties are determined objectively by reference to the text, context (ie the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. In determining the meaning of the terms, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. See Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]-[47].

59    Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning. However, sometimes, recourse to events, circumstances and things external to the contract may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337 at 350 per Mason J quoting Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-996 per Lord Wilberforce. It may be necessary in determining the proper construction where there is a constructional choice. See Mount Bruce at [48]-[49].

60    What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations. See Codelfa at 352 and Mount Bruce at [50].

61    There is no special rule of “strict” construction for clauses which exclude liability or which exclude statutory rights – an exclusion clause should be construed “according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity”: Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; 161 CLR 500 at 510; Selected Seeds Pty Ltd v QBEMM Pty Ltd [2010] HCA 37; 242 CLR 336 at [29]. However, as will be seen below, courts have displayed reticence in giving broad language of exclusion the effect of disclaiming legal rights.

62    Of particular pertinence to the present case is the decision of the Judicial Committee of the Privy Council in an appeal from the Court of Appeal of the Bahamas in The Cape Bari already referred to above. Both sides of the present case accept the statements of principle by the Board with regard to contractual construction, and neither contends that there is anything in those statements that is contrary to the law in Australia. That is to say, neither side of the case submits that the statements of principle in The Cape Bari are at variance with the position in Australia as recorded in the previous several paragraphs.

63    The principles extracted from The Cape Bari include that for a party to be held to have abandoned or contracted out of valuable rights arising by operation of law, the provision relied upon must make it clear that that is what was intended (at [31]). In construing such a contract one starts with the presumption that neither party intends to abandon any remedies for its breach arising by operation of law, and clear express words must be used in order to rebut this presumption; to rebut that presumption one must be able to find in the contract clear unequivocal words in which the parties have expressed their agreement that a remedy for a breach as would arise by operation of law shall not be available in respect of breaches of that particular contract (at [32] citing Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 at 717-718).

64    In Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] EWCA Civ 75; [2010] QB 27 at [23] the following was said which was then adopted in The Cape Bari at [33]:

The court is unlikely to be satisfied that a party to a contract has abandoned valuable rights arising by operation of law unless the terms of the contract make it sufficiently clear that that was intended. The more valuable the right, the clearer the language will need to be.

65    An important part of the background to the relevant contract between CSL and TasPorts for the movement of the Goliath into the Port of Devonport on 28 January 2022 is the Limitation Act and the rights that it gives to a shipowner to limit its liability for the claims set out in Art 2(1) of the 1976 Convention: The Cape Bari at [37]. The right of shipowners to limit their liability with reference to the size of their ship has a very long history. I will canvass that history below in dealing with the wreck removal issue. The point for present purposes is that the Limitation Act and its antecedents have offered significant rights to shipowners in Australia for a very long time. Parties such as TasPorts and its customers for port services can be expected to know that shipowners have that important right.

66    In The Cape Bari, the analysis of Reyes J in the Hong Kong case of Sun Wai Wah Transportation Ltd v Cheung Kee Marine Services Co Ltd [2009] HKCFI 1098; [2010] 1 HKLRD 833 was expressly approved (at [51]). In Sun Wai Wah, the shipowner agreed to indemnify the charterer against “all action, liability, loss suits, claims, demands, proceedings …” by paying “on demand the full amount of any loss or damage whatsoever caused which [the charterer] may incur …” (emphasis added). The question was whether that form of complete indemnity by necessary implication excluded the shipowner’s right to limit liability under the 1976 Convention as given the force of law in Hong Kong. It was held that it did not. The parties to the contract were taken to have been aware of the right to limit under the Convention (at [11]). It was held that in the absence of clear words to the contrary, the reference to full indemnity in the indemnity agreement could not be read as meaning other than a full indemnity within the terms of what the Convention permits.

67    Returning to The Cape Bari, the relevant clause provided that the shipowner “shall hold BORCO [the owner of the berth at a storage facility] harmless from and indemnified against all and any loss, damages, costs and expenses incurred” and “shall hold BORCO harmless and indemnified against all and any claims, damages, cost and expenses arising out of any loss, damage or delay caused to any third party arising directly or indirectly from the use of the terminal facilities or of any part thereof by the vessel”. Again, the question was whether that form of complete indemnity excluded the shipowners’ right to limit its liability under the 1976 Convention as incorporated into the law of the Bahamas. It was held that it did not. It was the opinion of the Board that if the parties had intended to agree that the owners should not be entitled to exercise their right to limit their liability in accordance with Art 1 they would have so provided (at [38]). It was reasoned that there is nothing in the indemnity which contains even a hint that the owners were agreeing to waive their right to limit their liability under the Convention (at [38]). The indemnity was contrasted with other clauses of the contract that protected BORCO and imposed liability on the owners even if BORCO or its servants or agents were responsible (at [39]).

68    Ultimately, the Board reasoned as follows:

48.    … The cases cited above show that the words of the particular contract must be construed in the light of the default position, namely that the statutory rights of the owners were known to and understood by the parties to apply ([Alsey Steam Fishing Co Ltd v Hillman (The Kirknes) [1957] P 51]) and were treated as being written into the Conditions of Use ([Ingram and Royle Ltd v Services Maritimes du Trėport Ltd [1914] 1 KB 541]). It follows that that remains the position unless there is some provision which clearly and unequivocally excludes the right such that the two provisions cannot be read together and the statutory right must have been excluded.

…

50.    The Board accepts the owners’ submission that clause 4 of the Conditions of Use and article 2.2 of the 1976 Convention can readily be read together as a coherent scheme. BORCO is entitled to an indemnity in respect of “all and any loss” up to the maximum recoverable pursuant to the Convention. The expression “all and any loss” is simply generic indemnity clause wording which makes no reference to the statutory wording. In short, there is nothing in the language of the agreement which suggests that the owners were agreeing to waive their right to limit. Indeed, viewed objectively, it seems to the Board to be inconceivable that the owners intended to waive their right to limit. Moreover, if BORCO had intended that they should do so, it could reasonably have been expected for BORCO to include such a clause in the Conditions of Use.

69    Turning now to the relevant text of TasPorts’ STCs, a number of observations are pertinent.

70    Clause 26, including cl 26.2 on which TasPorts particularly relies, provides as follows:

26.     Liability

26.1     TasPorts, the Principal and the Shipping Agent acknowledge that under the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010, consumers (as defined) have certain rights and guarantees which cannot be excluded. Nothing in these Terms and Conditions will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by Law (including the Australian Consumer Law) and which by Law cannot be excluded, restricted or modified.

26.2     To the fullest extent permitted by Law, all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms that are not set out in these Terms and Conditions are expressly excluded.

26.3     TasPorts will not be liable or responsible to the Principal or the Shipping Agent for any Consequential Loss suffered or incurred by the Principal or Shipping Agent or both arising out of or in connection with the Agreement, whether in contract, tort, equity or otherwise.

26.4     Where TasPorts is precluded from excluding its liability by Law, TasPorts’ liability is in all circumstances limited to:

(a)     the re-supply of the services; or

(b)     where TasPorts decides at its discretion that the re-supply of services is not practicable, then liability is limited to the payment of the cost of having the services supplied again, subject to clause 26.1.

71    TasPorts also draws attention to cl 20.3 which provides that any towage provided by TasPorts is subject to the United Kingdom Standard Conditions for Towage and Other Services (Revised 1986) as amended by TasPorts in 2019 and published on its website (UK Towage Terms). It is also provided that in the event of a conflict, the UK Towage Terms prevail over the STCs. Noting that the “Tugowner” in the UK Towage Terms would necessarily be TasPorts, cl 6 relevantly provides as follows:

Furthermore, nothing contained in these conditions shall limit, prejudice, or preclude in any way any right which the Tugowner may have to limit his liability.

72    Clause 26.2 of the STCs provides for the express exclusion of, inter alia, all “rights” and “remedies” that “are not set out” in the STCs to “the fullest extent permitted by Law”. “Law or Laws” is defined in cl 1 of the STCs as meaning “all laws (including subordinate or delegated legislation or statutory instruments of any kind) applicable to this Agreement or the subject matter of this Agreement”.

73    It is noteworthy that “Law” is used with reference to what the law (particularly statute law) allows parties to contract out of. Statute law, and possibly the common law to the extent that it deals with such matters, is the source of reference to identify what cannot be excluded; it is not the source of reference for what is excluded. That is consistent with cl 26.1 which expressly provides that rights etc that by the Australian Consumer Law (ACL) cannot be excluded or restricted are not so excluded or restricted by the STCs.

74    It is on that basis that CSL submits that it is only contractual “rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms” that are excluded, and not rights and remedies that arise under statute. That construction is supported by the use of the reference to “Law”, as explained. It is also supported by two other considerations. The first is the list of exclusions – all are specific to a contractual relationship and none is derived from the general law other than the law applicable to contracts. The second is the use of the phrase “that are not set out in these Terms and Conditions”. That directs attention to matters within the contract, rather than external to it.

75    That is to say, the text of cl 26.2 is most obviously to be read as saying that to the fullest extent permitted by law, all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms that would otherwise arise from the contract that are not set out in the STCs are expressly excluded; rights and remedies that arise dehors the contract are not excluded by the clause.

76    In my assessment, cl 26.2 is not materially different from the full indemnity clauses in Sun Wai Wah and The Cape Bari insofar as any exclusion of the right to limit is concerned. Those clauses provided for the shipowners to fully indemnify their counterparties with no mention of limitation. Despite the full indemnity and because of the failure to deal explicitly with limitation, in both cases it was held that the important right to limit was not excluded. Similarly, in the present case cl 26.2 makes no mention of the important right to limit, which is in any event a right that arises from statute and not from the parties’ contract. It is also a right that applies by Art 2(1) of the 1976 Convention to the enumerated claims “whatever the basis of liability may be”. That is to say, it is not only available in response to contractual claims.

77    I do not see the reference to the preservation of TasPorts’ right to limit in the context of towage as changing the analysis. Clause 6 of the UK Towage Terms puts the question of TasPort’s right to limit in a case of towage beyond doubt, but it does not otherwise say anything about anyone else’s right to limit, or indeed of TasPorts’ right to limit in a non-towage situation. That could be in relation to liability of TasPorts in direct connection with its operation of, for example, a pilot boat or tugs when not engaged in relation to the relevant contracted-for-service.

78    There is nothing in the UK Towage Terms that is said to limit the right of the “Hirer”, ie the tow, to limit liability. There is a general indemnity in cl 4(b) in similar terms as the indemnities in Sun Wai Wah and The Cape Bari, which on those authorities does not exclude a right to limit. I can see no reason why the express preservation of TasPorts’ right to limit should carry with it the implication that the Hirer’s right to limit is excluded. And if that right is not excluded in the UK Towage Terms, then the incorporation of those terms by reference into the TasPorts STCs when there is towage cannot have that result.

79    CSL relies on another consideration in support of its more limited construction of cl 26.2. It is the statement in the email that notified all TasPorts’ then customers of the new STCs that the “revised terms and conditions have not materially changed from the previous version” (see [26] above). There was no clause in the previous version to similar effect as cl 26.2, and certainly none on which an argument might be founded that the shipowner’s right to rely on limitation had been waived or excluded. Given the ambiguity in the reach of cl 26.2 that is demonstrated by the parties’ differing contentions, and my treatment of them above, I am satisfied that according to the “true rule” identified in Codelfa (by Mason J at 352), extrinsic evidence of surrounding circumstances is admissible to assist in the interpretation of the contract. However, as identified above (at [60]), evidence of the parties’ statements and actions reflecting their actual intentions and expectations is inadmissible.

80    I am not persuaded that any reliance can be placed on the statement in the email in seeking to interpret the words used in the STCs. That is because it does not form part of the admissible surrounding circumstances; it is not a matter of objective background fact known to the parties but is rather a matter of an individual party’s subjective intention or advocacy for the contract. Also, evidence of surrounding circumstances may be less relevant when construing a standard form contract because of the importance of the terms having a common meaning across a variety of circumstances and between a variety of parties not all of whom – at the time or thereafter – would have received the email: AIB Group (UK) Ltd v Martin [2001] UKHL 63; [2002] 1 WLR 94 at [7]; Homburg Houtimport BV v Agrosin Pte Ltd (The Starsin) [2003] UKHL 12; [2004] 1 AC 715 at [73]-[74].

81    For those reasons, my conclusion is that cl 26.2 of the STCs does not amount to an exclusion or waiver by CSL of its right to rely on limitation under the Limitation Act.

E.    Issue 2: are TasPorts’ wreck removal claims excluded from limitation?

E.1    Introduction

82    The issue between the parties with regard to whether the wreck removal claims are limitable under the 1976 Convention as it applies in Australia arises from the fact that in becoming a State Party to the 1976 Convention, Australia exercised its right of reservation under Art 18(1) of the Convention to exclude the application of Arts 2(1)(d) and (e). That is expressed in s 6 of the Limitation Act as follows:

Subject to this Act, the provisions of the Convention, other than paragraphs 1(d) and (e) of Article 2, have the force of law in Australia.

83    Article 18(1) provides that:

Any State may, at the time of signature, ratification, acceptance, approval or accession, reserve the right to exclude the application of Article 2 paragraph 1 (d) and (e). No other reservations shall be admissible to the substantive provisions of this Convention.

84    Article 1 of the 1976 Convention identifies the persons entitled to limit liability. They are shipowners and salvors, as defined. Shipowners is defined to include the owners and operators of a seagoing ship.

85    Article 2, which is headed “Claims subject to limitation”, is in the following terms:

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;

[italics added to indicate the paragraphs that are the subject of reservation under Art 18(1).]

(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.

86    Article 3, headed “Claims excepted from limitation”, is as follows:

The rules of this Convention shall not apply to:

(a)     claims for salvage 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.

87    Article 4 provides that a person shall not be entitled to limit liability if it is proved that the claimed loss resulted from their personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. Under Art 1(1) of the International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships (1957) (1957 Convention) limitation could be “broken” at the lower threshold of “actual fault or privity of the owners”.

88    CSL says that TasPorts’ wreck removal claims come within Art 2(1)(a) as consequential loss claims arising from damage to or loss of property (being the tugs, the wharf and the hydrocarbons) and are therefore subject to limitation regardless of whether they also come within Art 2(1)(d). Against that, TasPorts says that Art 2(1)(d), which deals specifically with wreck removal claims, qualifies the earlier paragraphs which by necessary implication exclude the claims covered by Art 2(1)(d) – otherwise Art 2(1)(d) and the right of reservation in relation to it in Art 18(1) have no work to do.

89    It is common ground that the text of a treaty is not to be interpreted according to particular domestic rules of interpretation, which might have variations from country to country. Rather, a treaty should have the same meaning for all of the States which are party to it: see Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11; 275 CLR 292 at [38]. The ultimate questions then are: what does the relevant treaty provide, and how is that international obligation carried into effect in Australian municipal law? See Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 189 at [25].

90    The general principles of treaty interpretation are set out in the Vienna Convention on the Law of Treaties (1969) which reflects customary international law and is therefore applicable to treaties pre-dating its entry into force in 1980: Kingdom of Spain at [38]. Article 31 provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty. Article 32 provides that interpretative assistance may be gained from extrinsic sources in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when interpretation according to Art 31 leaves the meaning “ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”.

E.2    Context, object and purpose

91    As mentioned earlier, limitation has a long history. It was explained by Brennan J in Victrawl Pty Ltd v Telstra Corp Ltd [1995] HCA 51; 183 CLR 595 at 600-601, that the inconvenience caused by disparity among the laws of the respective maritime nations relating to limitation of liability led to the conclusion of international conventions to standardise the rules. The International Convention for the Unification of certain Rules relating to the Limitation of the Liability of Owners of Seagoing Vessels (1924) (1924 Convention) was followed by the 1957 Convention and later by the 1976 Convention. The purpose of these Conventions was not only to protect shipowners and their servants, but also to provide for the equitable distribution amongst claimants who had suffered losses from a particular casualty of a fund that would likely be insufficient to meet their claims in full.

92    In China Ocean Shipping Company v South Australia [1979] HCA 57; 145 CLR 172 at 185, Barwick CJ observed 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”. That was adopted by Rares J in Strong Wise Ltd v Esso Australia Resources Pty Ltd [2010] FCA 240; 185 FCR 149 (The APL Sydney) at [31].

93    In CMA CGM SA v Classica Shipping Co Ltd (The CMA Djakarta) [2004] EWCA Civ 114; [2004] 1 Lloyd’s Rep 460 (at [11]) it was accepted by the Court of Appeal that the object and purpose of the 1976 Convention in giving owners, charterers, managers and operators the ability to limit their liability was to encourage the provision of international trade by way of sea-carriage. That was endorsed in MSC Mediterranean Shipping Co SA v Stolt Tankers BV (The MSC Flaminia (No 2)) [2023] EWCA Civ 1007 (at [62]) where it was said that that 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. It was recognised (at [63]) that conferring a right to limit on shipowners will serve the objective of encouraging international trade by encouraging investment by shipowners secure in the knowledge that they will not face potentially crippling unlimited liability, and enable them to obtain insurance which is not prohibitively expensive. It was also identified (at [65]) that the main object and purpose of the 1976 Convention was to provide for a higher limit of liability than applied under the 1957 Convention while making it more difficult to “break” the limit (as explained at [87] above). That is to say, there was a trade-off whereby claimants received the benefit of higher limitation amounts and shipowners received the benefit of it being more difficult for claimants to avoid limitation.

94    I accept the above statements as identifying the relevant general object and purpose of the 1976 Convention.

95    It can also be observed that:

The public policy behind successive statutes and conventions relating to the limitation of liability from the 18th century to the present day has been to extend the privilege of limitation in order to keep pace with developing trends in the industry. Thus, the right to limit has been extended from shipowners to charterers, managers, salvors, etc., and from claims for physical damage to claims for infringement of rights, delay, etc. Therefore, steps have generally been in the forward direction and arguments about limitation have generally been centred on whether, at any particular moment in time, the right to limit has progressed sufficiently quickly to keep pace with developments in the industry and whether evolving public policy considerations require a further step forwards.

(Williams, Professor R, “Problematic areas in the current global limitation regime” in Thomas, Professor D R (ed), Liability Regimes in Contemporary Maritime Law (Informa, 2007) [15.63]; reiterated in Williams, Professor R, “Limitation of liability: Wrecked on the rocks of legislative myopia” (2005) 11 Journal of International Maritime Law 5, 5.)

E.3    The text

E.3.1    Introduction

96    Turning now to the text, as mentioned, Art 1 identifies who can claim limitation. Article 2 then identifies the claims against such a person, relevantly the owners of a seagoing ship, that are subject to limitation.

97    It is noteworthy that the chapeau to Art 2(1) identifies “claims” that are subject to limitation, “whatever the basis of liability may be”. Understandably for an international convention expected to be applied in a variety of legal systems with different substantive causes of action, the claims are described with reference to their subject matter rather than the legal basis for liability. Also, Art 2(2) includes within the scope of limitation claims that are brought by way of recourse or for indemnity, and whether by contract or otherwise.

98    Leaving loss of life and personal injury claims to one side, the key elements for claims to come within Art 2(1)(a) are that they are “in respect of”, first, loss of or damage to property that, secondly, occurred in direct connection with the operation of the ship in respect of which limitation is claimed, ie the seagoing ship with reference to which the person entitled to claim limitation is identified. If those two elements are satisfied, then resultant consequential loss is also limitable. It is both the “concrete” (ie loss of or damage to property) and “abstract” (ie financial loss resulting therefrom) that is subject to limitation: Qenos Pty Ltd v The Ship APL Sydney [2009] FCA 1090; 187 FCR 282 at [18] per Finkelstein J.

99    It is plain that TasPorts’ para 22(e) claims as asserted satisfy the elements of Art 2(1)(a). That is because the asserted claims are “in respect of” – a relational phrase requiring only a loose connection – “loss of or damage to property” (being the tugs, the wharf and the hydrocarbons) that occurred in direct connection with the operation of the ship the owner of which seeks limitation (ie the Goliath) and include “consequential loss resulting therefrom” (ie the clean-up, removal and disposal costs).

100    To the extent that TasPorts’ para 22(e) claims are not within Art 2(1)(a) as not arising from loss of or damage to property, the non-contractual claims (ie in negligence and nuisance) could come within Art 2(1)(c) as 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”. A similarly broad interpretation of Art 2(1)(c) was taken in Qenos at [35]-[37]. That said, it is clear enough that as characterised in the amended statement of claim, the para 22(e) claims are within Art 2(1)(a) so there is no need for CSL to rely on Art 2(1)(c). Also, as mentioned, the spilt hydrocarbons were not carried as cargo on the tugs so Art 2(1)(e) does not arise for consideration.

101    On that simple textual approach, CSL would be entitled to limit in relation to TasPorts’ para 22(e) claims.

102    TasPorts’ argument to the contrary principally relies on the interpretive assistance to be derived from the maxim generalia specialibus non derogant (general provisions do not overrule specific provisions), which I will refer to as the generalia maxim. Put differently, it is said that it is necessary to give effect to the Convention as a coherent whole. The contention is that claims in respect of wreck removal are specifically dealt with in Art 2(1)(d), and they are thus to be regarded as excluded from the more general provisions of paras (a) and (c), in particular because a reservation in relation to para (d) would otherwise be ineffective leading to incoherence in the Convention.

103    Support for that approach is to be found in the judgment of Keane NPJ, with whom all the other judges agreed, in the Hong Kong Court of Final Appeal in Perusahaan Perseroan (Persero) PT Pertamina v Trevaskis Ltd [2023] HKCFA 20; (2023) 26 HKCFAR 297 (The Star Centurion). That is high authority from which a single judge, albeit in a different jurisdiction, would not readily depart, particularly having regard to the importance of the Convention being given the same meaning in the jurisdictions of all States Parties. I will return to considering the reasoning of the Court in detail.

104    TasPorts also relies on the judgments of Kelly SPJ and McPherson J in Barameda Enterprises Pty Ltd v O’Connor [1988] 1 Qd R 359 (The Tiruna) in which it was decided on similar reasoning that claims in relation to wreck removal as described in Art 1(1)(c) of the 1957 Convention were to be regarded as excluded from the more generally described claims in Arts 1(1)(a) and (b). The 1957 Convention allowed States Parties to make a reservation by excluding para (c). Australia had exercised that right of reservation when enacting s 333 of the Navigation Act 1912 (Cth) (repealed) which implemented the 1957 Convention in Australia.

105    TasPorts finds further support in Atlasnavios Navegacao LDA v The Ship Xin Tai Hai (No 2) [2012] FCA 1497; 215 FCR 265 at [139] in obiter per Rares J and in the decision of the Supreme Court of the Netherlands (Hoge Raad der Nederlanden) in Scheepvaartbedrijf MS Amasus BV v ELG Haniel Trading GmbH, ECLI:NL:HR:2018:140 (2 February 2018) (The Wisdom) for the contention that it is necessary to remove from the reach of Arts 2(1)(a) and (c) claims coming within the description in Art 2(1)(d) in order to give some effect to any reservation in relation to (d). I will return to those authorities.

106    In short, TasPorts contends that to give the more generally described claims in paras (a) and (c) their natural meaning would have the effect of negating the intention evident in both the 1957 Convention and the 1976 Convention’s allowance for reservations to paragraphs with the description of the claims subject to limitation that include wreck removal claims. That contention and the reliance on The Tiruna direct attention to the 1957 Convention and the travaux préparatoires to the 1976 Convention, and indeed to the 1924 Convention where wreck removal claims were also expressly mentioned, which I will come to shortly.

107    CSL contends that including claims of the nature of TasPorts’ para 22(e) claims in Arts 2(1)(a) and/or (c) still leaves other types of wreck removal claims in Art 2(1)(d) and therefore leaves para (d) with work to do. It submits that there are claims in (d) that would not be in (a) and/or (c), namely claims in respect of the removal of the wreck with reference to which limitation is claimed and calculated (ie the limiting ship). That is because, as will be seen, such claims are not within Art 2(1)(a) because the relevant property in respect of which loss or damage must have been suffered for claims in that paragraph cannot be the limiting ship; it must be some other ship – conveniently referred to as the innocent ship – or property: Aegean Sea Traders Corporation v Repsol Petroleo SA (The Aegean Sea) [1998] 2 Lloyd’s Rep 39 at 51 and 52 per Thomas J; The CMA Djakarta at [26] and [29] per Longmore LJ, Waller and Neuberger LJJ agreeing.

108    Those cases decided that loss or damage to property occurring in direct connection with the operation of the ship is not apt to include damage to or loss of the very ship by reference to whose tonnage the limit is calculated, and by the same token consequential loss arising from damage to the relevant vessel is also outside the compass of Art 2(1)(a): Blue Nile Shipping Co Ltd v Iguana Shipping and Finance Inc (The Darfur) [2004] EWHC 1506; [2004] 2 Lloyd’s Rep 469 at [33] per David Steel J. Insofar as the heads of claim are consequential upon damage to the vessel claiming limitation, its owners are not entitled to limit their liability in respect of them: The Darfur at [35]. That approach was confirmed in Gard Marine and Energy Ltd v China National Chartering Co Ltd (The Ocean Victory) [2017] UKSC 35; [2017] 1 WLR 1793 at [83]-[84] per Lord Clarke on which points Lords Sumption, Mance and Toulson agreed. More recently, see The MSC Flaminia at [88] and [93]-[94].

109    Consideration should be given to the text of paras (d) and (e). Unlike paras (a) and (c), the claims in (d) and (e) are not described as having arisen “in direct connexion with the operation of the ship or with salvage operations”. Rather, they are described with reference to “a ship” and “the ship” in (d) and (e) respectively. In the case of (d) that is the ship that is sunk, wrecked, stranded or abandoned. In the case of (e) it would appear to necessarily be the ship of the shipowners and salvors referred to in Art 1 who are entitled to claim limitation.

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, ie 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”).

111    It may be that the indefinite article was used inadvertently – there is no discussion of this in the travaux. Or it may be because it was thought that it is better to use the indefinite article given the various possible circumstances of such a ship listed immediately thereafter – sunk, wrecked, etc. If para (d) applies only in respect of claims arising from the sinking etc of the limiting ship then TasPorts’ relevant claims would simply not come within para (d) and they would be subject to limitation under para (a). Because that interpretation was not argued, I will proceed on the assumption, in TasPorts’ favour, that wreck removal claims in relation to the removal of the wreck of a ship other than the limiting ship come within para (d).

112    In order to assess the merits of CSL’s contention that para (d) includes claims that are not within paras (a) and (c), it is necessary to identify the different types of wreck removal claims that there might be that come within the ordinary meaning of para (d) (on the assumption recorded in the previous paragraph) and to consider which other paragraph or paragraphs of Art 2(1) they might come within. That is to ask the question, whatever the basis of liability might be, what claims are there “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”? For convenience I will refer only to the removal of wrecks as shorthand to cover also the other claims in para (d).

113    First, there are the claims of the owners of a wreck against the owners of the ship the operation of which is alleged to have caused the wreck for the costs and expenses of removing their wreck, or in respect of their liability to a public authority for such removal. The present case is an example of such a claim. Other examples include The Urka [1953] 1 Lloyd’s Rep 478, The Arabert (Limitation) [1963] P 102; [1961] 1 Lloyd’s Rep 363, The Tiruna, The Xin Tai Hai and The Star Centurion. Such claims come within the ordinary meaning of para (a) as claims for consequential loss resulting from loss of or damage to property, being the wrecked ship.

114    Secondly, there are the fault-based claims (eg in negligence but also other forms of fault-based liability recognised in other legal systems) for the costs and expenses of removing a wreck from a harbour, basin or waterway. Such claims might be brought by public authorities or others who suffer loss arising from a ship being sunk, wrecked, stranded or abandoned including the expenses of removing, etc., the wreck. The claims might be against the owners of the wrecked ship, as in The Putbus [1969] P 136 (CA), or against the owners of a different ship the operation of which caused the wreck, as in The Berwyn [1977] 2 Lloyd’s Rep 99 (CA). Such claims would come within the ordinary meaning of “loss resulting from infringement of rights other than contractual rights” in para (c).

115    Thirdly, there are 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, as in The Stonedale No 1 (Owners) v Manchester Ship Canal Co [1956] AC 1.

116    In Australia, the Navigation Act 1912 (Cth) (repealed) gave to the Australian Maritime Safety Authority (AMSA) the power to order the owner of a wrecked ship to remove the wreck failing which AMSA could remove or destroy the wreck and recover any expenses thereby incurred from the owner – the “owner” being the owner immediately prior to the time of the loss or abandonment of the ship (s 314A). The Navigation Act 2012 (Cth) gives similar powers to AMSA, including the right to recover from the legal owner of the wreck any expenses incurred in connection with removing the wreck (s 229). Various State and Territory Acts give similar powers in respect of waterways within their jurisdictions, eg Marine and Safety Authority Act 1997 (Tas), Div 2A; Marine Safety Act 2010 (Vic), s 268; Marine Safety Act 1998 (NSW), s 16; Transport Operations (Marine Safety) Act 1994 (Qld), s 175A; Harbors and Navigation Act 1993 (SA), s 25; Western Australian Marine Act 1982 (WA), s 71; Marine Act 1981 (NT), s 115D and the Ports Management Act 2015 (NT), Div 3. Similar provisions can be expected to be found around the world, as provided for in Arts 9 and 10 of the Nairobi International Convention on the removal of wrecks (2007).

117    Such claims do not come within the ordinary meaning of paras (a) or (c). With regard to (a), they are claims for consequential loss but, as explained, that loss does not result from the loss of or damage to property other than the limiting ship. With regard to para (c), the third category of claims that I have identified does not result from the infringement of rights. It results from the exercise of a statutory right or power.

118    As an aside it might be observed that if the presence of a wreck was regarded as damage to the basin or waterway in which it was situated, the claim against the owner of the wreck would be limitable under Art 2(1)(a). Moreover, it could not be said that since such a claim was within Art 2(1)(d) it should by implication be regarded as excised from para (a) because of its express inclusion in that paragraph. However, the reference in para (a) to damage to harbour works, basins and waterways is better understood as a reference to damage to the structures of those harbour assets, rather than including the creation of some physical obstruction within them. That construction is also supported by the equally authentic French text, “les dommages causés aux ouvrages d'art des ports, bassins, voies navigables et aides à la navigation”.

119    It follows from that analysis that para (d) has significant work to do. The result is that the strict liability statutory claims of a public authority against the owner of a wreck for the costs and expenses of removing that wreck are not claims that are limitable under Arts 2(1)(a) or (c), but they would be limitable under para (d) where that paragraph is given legal force. Where a reservation is exercised under Art 18(1) and para (d) is not given legal force, as in Australia, such claims would not be limitable.

120    The position reached thus far is that TasPorts’ para 22(e) claims come within the ordinary language of Arts 2(1)(a) and (d), and that there are other forms of “wreck removal” claims that would come within the language of para (d) that do not come within the language of the other paragraphs.

121    It now falls to consider the cases that TasPorts primarily relies on in contending that its wreck removal claims are not subject to limitation.

E.3.2    The Tiruna

122    The Tiruna deals with the position under the 1957 Convention as given the force of law in Australia by s 333 of the Navigation Act 1912 (Cth) (repealed).

123    The 1957 Convention relevantly provided in Art 1(1) that the owner of a seagoing ship could limit their liability in respect of certain claims unless the occurrence giving rise to the claim resulted from the actual fault or privity of the owner. Those claims were described as claims “arising from” the following three categories:

(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, 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.

124    The Protocol of Signature of the Convention allowed any State Party to make a reservation of the right to exclude the application of Art 1(1)(c). The United Kingdom and Australia, in giving the force of law to the 1957 Convention in their respective jurisdictions, exercised their rights of reservation with respect to that paragraph.

125    The Pelorus, a fishing trawler, ran down the Tiruna, a prawn trawler, causing the Tiruna to sink. The owners of the Tiruna claimed against the owners of the Pelorus, and the latter sought to limit their liability. The wreck of the Tiruna was removed pursuant to a direction by the relevant harbour authority acting under statutory authority. An arrangement was made whereby an independent contractor removed the wreck in return for the right to salvage it. On that basis it was held that the cost of the wreck removal, which the owners claimed against the Pelorus owners, was equal to its salvage value. Thus it was held that the Tiruna owners suffered no loss for wreck removal, but that their claim was rather expressed as the loss of the vessel which was within Art 1(1)(b). On that basis the appeal was allowed and it was not necessary to deal with the question whether the wreck removal claim, if it had had a value, was limitable. The Court nevertheless considered that point on account of having received full argument on it. Notably what was said is not only obiter, but it deals with a different Convention with different wording. Nevertheless, the reasoning is informative and the structure of the relevant provisions is much the same.

126    Justices Kelly and Macpherson held that because a wreck removal claim came within para (c), it did not come within para (b), although their Honours’ reasoning differed.

127    Justice Kelly held (at 368) that it was permissible to have regard to the terms of Art 1(1)(c), which was not part of the law of the Commonwealth, in construing Art 1(1)(b). That was because para (b) was not clear and unambiguous with the result that the whole of Art 1(1) could be considered. His Honour reasoned (at 369) that the reference to “any ship” in para (c) had the result that it covered wreck removal claims in relation to the claiming ship and the limiting ship. Paragraphs (b) and (c) should be regarded as mutually exclusive and not overlapping so it would not be correct to interpret para (b) as including matters that are the subject of para (c).

128    With respect, it is not clear why that should be so. For reasons already given in relation to Art 2(1) of the 1976 Convention, the third class of claim I have identified above would be within (c) but not within (b). The fact that there are other claims, such as the first and second classes, that might be within both (b) and (c) does not seem to justify the conclusion that (b) and (c) must be interpreted as being mutually exclusive.

129    Justice McPherson identified (at 386-387) a number of different types of claims in respect of any obligation or liability imposed by any law relating to the removal of wrecks. His Honour reasoned (at 388) that if the owner of the ship which through negligence causes a channel to be obstructed may be entitled pursuant to para (b) to limit their liability for wreck removal expenses, whether claimed by the port authority under statute or at common law or by the innocent ship, then the deliberate omission to make para (c) part of the law of the Commonwealth would have achieved nothing. That would be a manifestly absurd or unreasonable result (at 388). On that basis, it was held (at 389) that the omission of para (c) from being given the force of law operated to prevent claims for wreck removal expenses from being the subject of limitation of liability.

130    The difficulty with that analysis is that any claim against the owners of the wrecked ship for its removal would not qualify for limitation under Art 1(1)(b). That is even clearer under the 1957 Convention than it is under the 1976 Convention (as already discussed) because the relevant loss or damage must be of or to “any other property”, ie other than the ship claiming limitation. A claim by the innocent owners of the wrecked ship against the owners of the wrongdoing ship would be limitable, but there is no reason why that should be thought to be absurd or unreasonable.

131    Justice Macrossan came to a contrary view to Justices Kelly and McPherson. His Honour accepted (at 374) that if a reading were suggested which gave no effect to one of paras (a), (b) or (c), beyond what flowed from the others, that would constitute sound reason for rejecting the suggestion. However, his Honour reasoned (at 374) that by declining to enact para (c), the Parliament indicated that it did not desire that statutory authorities (eg the Harbour Boards in Queensland) would suffer any restriction, in practical terms, upon their power to compel the removal of wrecks. In the absence of para (c), the innocent owner of a sunken ship would have no available limitation in answer to the statutory authority claiming the expense of removal. But the owners of a negligent ship which caused the sinking of another ship would still be able to limit their liability for a claim for the expense of removing the wreck of the sunken ship (at 374).

132    Justice Macrossan went on to conclude as follows (at 375):

When the innocent shipowner seeks to recover from the wrongdoer the expenses of wreck removal which he has been forced to pay at the behest of the Harbour Authority, he is making a claim arising from the loss of his ship and so the limitation applies. He is seeking to recover what is, in effect, just one more item of special damage flowing from the loss of his ship. On the other hand, at the earlier stage, when the Harbour Authority demands, as against the innocent shipowner, removal of the wreck or seeks to recover the expense of removal, it is not making a claim arising from the loss of a ship (which would pre-eminently be a claim in tort) but is making a claim (a statutory demand in debt) simply arising out of an owner’s failure to remove an obstruction which de facto exists. 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.

133    With respect, that reasoning is compelling. In my view, the criticism of that reasoning in The Star Centurion (at [48]) on the grounds that Macrossan J was informed and guided by differences in the legal basis of liability to the claims by the harbour authority and the shipowners is misplaced. As mentioned, statutory claims by harbour authorities are commonplace in different legal systems. It is a legitimate form of reasoning to identify that such claims are included in the wreck removal head of claim and not included in the other heads of claim.

134    TasPorts submits that the interpretation adopted by the majority in The Tiruna should be taken as having been adopted or approved by the Parliament in relation to the 1976 Convention when it passed legislation implementing that Convention. TasPorts relies on BY Winddown Inc v Vautin [2016] FCAFC 168; 249 FCR 262 at [30]. The principle is that where an inference can be drawn from the terms in which subsequent legislation has been passed that Parliament itself has approved of a particular judicial interpretation of words in an earlier statute, a court should adhere to that interpretation: Flaherty v Girgis [1987] HCA 17; 162 CLR 574 at 594. Not only is there little scope for the application of that approach in relation to a Convention which must be given an international interpretation, but the two relevant Conventions – although similar and sharing a common history – are different instruments with different text. There is little basis to draw the inference that Parliament approved the majority’s interpretation in The Tiruna: there is no mention of it in the extrinsic materials and what was said was obiter. As it was recently put, “[o]ne judicial swallow does not make a legislative summer”: Greylag Goose Leasing 1410 Designated Activity Co v P.T. Garuda Indonesia Ltd [2024] HCA 21 at [38].

E.3.3    The Star Centurion

135    Given its provenance and how recent it is, The Star Centurion should be considered next.

136    Save that the para 22(e) claims are not recourse claims, the fact scenario in The Star Centurion is much the same as in the present case. The Antea collided with the Star Centurion which was at anchor in Indonesian waters and became a total loss as a result of the collision. The Indonesian Ministry of Transport issued a wreck removal order requiring the owners of the Star Centurion to raise the wreck, remove it and render it harmless. The Antea was responsible for the collision. The owners of the Star Centurion commenced proceedings in Hong Kong against the owners of the Antea claiming damages for loss of their vessel and indemnity for the wreck removal expenses incurred in not complying with the wreck removal order.

137    The owners of the Antea sought a limitation decree and contended that the Star Centurion’s claim for wreck removal expenses were subject to limitation, whereas the owners of the Star Centurion contended that they were not because Art 2(1)(d) of the 1976 Convention had not been given the force of law in the Special Administrative Region of Hong Kong. The question stated for the Court of Final Appeal was the following:

Where a Contracting State has enacted [the 1976 Convention] Article 2(1) in full into local law but has, by a provision of local law (pursuant to Article 18), disapplied (permanently or temporarily) head (d), is a shipowner nonetheless entitled to limit its liability for a Private Recourse Claim under head (a), or does the existence and/or suspension of head (d) exclude the shipowner’s reliance upon head (a) for such claims?

138    It was common ground between the parties that, as a matter of language, the recourse claim for recovery of wreck removal expenses was capable of being captured by both Arts 2(1)(a) and (d). The Antea contended that paras (a) and (d) overlapped and that the wreck removal claim came within both, with the generalia maxim having no application. Its fall-back position was that the wreck removal claim against it was a recourse claim falling exclusively within para (a) on the basis that para (d) refers only to claims by harbour authorities. (See the judgment at [22]-[23].)

139    The Court (at [29]) reasoned that the generalia maxim is a particular expression of a more general principle of statutory construction that as a matter of “simple common sense and ordinary usage” an instrument should be given effect as a coherent whole, citing Effort Shipping Co Ltd v Linden Management SA (The Giannis NK) [1998] AC 605 at 627. The Court explained that as a matter of principle, common sense and ordinary usage must apply to give effect to the instrument as a whole whether or not the provisions in question can be said to bear a strict relationship of general rule and specific exception.

140    The dispositive reasoning of the Court was that it cannot be supposed that Art 18(1), which allows for the exclusion of the application of Art 2(1)(d), contemplates that the legislature of a Contracting State would act in vain in disapplying Art 2(1)(d). Further, 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). (At [31].)

141    It was said 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 no reason other than that the expense is a consequence of the sinking of the same ship. However, it was acknowledged that that conclusion is subject to the possibility, with reference to the Antea’s fall-back position, that Art 2(1)(d) is to be understood as being confined to claims for wreck removal expenses by harbour authorities. (At [34].)

142    The fall-back position with regard to harbour authorities was rejected on the basis that there is no support for it in the text of para (d) (at [35]-[40]). I have no difficulty with that conclusion. However, it was apparently not submitted to the Court that a direct claim for wreck removal expenses by a harbour authority against the owners of the wrecked ship would not come within Art 2(1)(a) for the reasons given above. Indeed, the Court seems to have assumed or understood that such a claim would come within the language of para (a) because that was the premise to its conclusion of “incoherence” (at [34]).

143    The result is that the Court’s reasoning rests on the fundamental misconception that unless what is within Art 2(1)(d) is carved out of Arts 2(1)(a) and (c), Art 2(1)(d) would have no work to do.

144    There is, with respect, another difficulty with the reasoning of the Court. It is that the purpose of the inclusion of Art 2(1)(d) as revealed from the historical analysis which I will come to was to extend the right to limit to claims that were not otherwise covered by Arts 2(1)(a) and (c), and the purpose of allowing the reservation was to allow Contracting States not to adopt that extension and to thereby exclude the claims of public authorities against the owners of the wrecked ship for wreck removal expenses from limitation. The result of the Court’s reasoning, however, is to go much further than that. It is to make a reservation in relation to para (d) have the effect of removing all claims relating to wreck removal from limitation, even non-recourse claims such as the claim by TasPorts in this case. That is to drive a coach and horses through the international limitation regime and substantially undermine its intended uniformity – the effect of the exercise of the right of reservation should be given to the narrower of two possible readings in order to support the purpose of the Convention.

145    For those reasons, and with both respect and some diffidence, I consider that The Star Centurion is incorrectly decided and should not be followed. As mentioned, I am alive to the importance of developing a uniform international jurisprudence on the Convention, but I am also alive to the importance of giving effect to its principal purpose, namely to expand upon and to protect the rights of limitation. In those circumstances I feel compelled to adopt the construction that sits best with the text as supported by the preparatory works and circumstances of conclusion rather than to follow the decision of another national court, albeit one of such influence and standing.

E.3.4    The Wisdom

146    In The Wisdom, the relevant claim was once again a recourse claim by the owners of an innocent ship (the Riad), and the owners of cargo on that ship, for their liability to the harbour authority for removing the wreck of the Riad and its cargo from a public waterway. The Netherlands had implemented the 1976 Convention and exercised the right of reservation under Art 18(1) by not implementing Arts 2(1)(d) and (e), but had set up a separate liability regime for claims coming within those paragraphs. Under that regime, a “wreck fund” at a higher limitation amount than that applicable under the Convention could be established. The Supreme Court (ie the highest court of relevant jurisdiction in the Netherlands) reasoned that the rationale behind the provision for a separate fund for those claims related to the safety of shipping traffic, more specifically the interest of keeping waterways obstacle free. It was said that that interest was served by an arrangement whereby those who have incurred costs in connection with wreck and cargo removal do not have to share in the “business fund”. (At [3.4.4].)

147    The Court reasoned that the various paragraphs of Art 2(1) may overlap and that that “concurrence” does not lead to difficulties because the same limits apply to the claims under the different paragraphs. However, where a State Party has made a reservation under Art 18(1) and, on the basis of that reservation, established a different regime in respect of the claims covered by the reservation, the “special regime then takes precedence as a special rule (‘lex specialis’)”. It was held that the “proviso” to Art 18(1) precludes reliance on limitation under Art 2(1)(a), where the reference to a “proviso” is apparently a reference to the establishment of a separate liability regime for claims within paras (d) and (e). (At [3.6.8]-[3.6.9], referring back to [3.4.4] and [3.5(vi)].)

148    It can be seen that the reasoning of the Court 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. The reasoning does not particularly assist in the present case.

E.3.5    Twitt Navigation

149    The Hordaland District Court is a first instance Court within the Courts of Justice of Norway, apparently comparable in standing to this Court and the Supreme Courts of the Australian States and Territories. In Twitt Navigation Ltd v The State represented by the Defence Department, case number 21-058354TVI-THOD/TBER (16 November 2021), that Court expressed disagreement with the decision in The Wisdom and reasoned that it was based on considerations peculiar to Dutch law (at 20 of the translation provided by the parties). The Court held that the recourse claim for wreck removal costs by the State as owners of the sunken frigate Helge Ingstad against the owners of the wrongdoing tanker Sola TS came within Art 2(1)(a) as consequential loss resulting from loss of or damage to the frigate (at 25-26).

150    The Court recognised that there appears to be an overlap between paras (a) and (d) of Art 2(1), but reasoned that para (d) was necessary to ensure that wreck removal claims of public authorities can “be limited by the damaged ship in an accident” (at 14-15). That is to say, the Court recognised that claims for wreck removal of the ship claiming limitation do not come within para (a). Thus, Norway’s reservation in relation to para (d) did not have the effect of excluding the State’s claim from limitation under para (a).

151    The Court in The Star Centurion (at [39]) criticised the reasoning in Twitt on the basis that the judge had concluded that on the “objective interpretation” of the Convention both authority and recourse claims are subsumed under Art 2(1)(d), but nevertheless departed from that interpretation. It was said that the judge’s reference to the travaux and the 1957 Convention afforded no acceptable ground to disregard the judge’s evident conclusion as to the ordinary meaning of the words of the Convention. However, that criticism rests on the premise that everything that is in para (d) is also within (a) or (c), which, as explained, is not correct on the ordinary meaning of (a) and (c) in respect of claims for the removal of the limiting ship. That distinction was well appreciated by the Court in Twitt. The consequence is that the criticism of the judge’s reasoning in Twitt is misplaced.

E.3.6    The Xin Tai Hai

152    In The Xin Tai Hai (at [139]), Rares J in obiter expressed the view that a construction that had claims of the nature of TasPorts’ para 22(e) claims limitable under Art 2(1)(a) would give Art 2(1)(d) very little work to do when it expressly relates to claims in respect of wreck removal. His Honour reasoned that the States Parties to the 1976 Convention no doubt had in mind that there could be good policy reasons to allow a State Party to exclude claims under Art 2(1)(d) from being subject to limitation, as Australia has done, and for that exclusion to mean what it says. The question was not fully argued, and the proposition that there are claims in para (d) that are not in paras (a) and (c) was not put. In the circumstances, the case does not add much to the debate.

E.3.7    Provisional conclusion

153    The position with reference to the text, context, object and purpose (see Vienna Convention, Art 31) of the 1976 Convention is thus that TasPorts’ para 22(e) claims as characterised in the pleadings come within the text of Art 2(1)(a) and are on that basis prima facie subject to limitation. However, they also come within the natural meaning of para (d) (on the assumption recorded at [111] above) which is not part of Australian law. On the ordinary meaning of the language employed, I see no reason to limit the meaning of paras (a) and (c) with reference to para (d). 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. Giving the Convention a purposive construction, limitation should be available in respect of all claims reasonably within the language of the Convention (see [93] above). 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.

154    Having said that, I accept that if I am wrong and indeed all claims coming within para (d) would also come within either paras (a) or (c), then the reservation allowed for in Art 18(1) with reference to para (d) would be ineffective. In order to give it effect, it would be necessary to limit the meaning of paras (a) and (c) by excluding that which comes within para (d). That is the approach taken in The Star Centurion, but, as explained, it proceeded on an incorrect premise.

155    It should also be observed that on TasPorts’ approach, a claim by “innocent” shipowners for consequential losses arising from damage to the vessel will be subject to limitation by the owners of the 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 be subject to limitation. That would be a decidedly odd result. The construction that recognises that the latter claim falls within para (a) and is not excluded by the non-adoption of para (d) avoids that result. See Martínez Gutiérrez NA, Limitation of Liability in International Maritime Conventions (Routledge, 2011), [2.8.2].

156    Whether to confirm the apparent meaning that I have arrived at, or to clear up any ambiguity or obscurity (see Vienna Convention, Art 32), recourse must now be made to the preparatory work of the 1976 Convention and the circumstances of its conclusion. As already mentioned, those circumstances relevantly go back to the 1924 Convention as the source of the inclusion of wreck removal claims in the list of claims subject to limitation and allowance being made for a reservation in relation to such inclusion.

E.4    Relevant history and extrinsic sources

E.4.1    1924 Convention

157    The history of a shipowner’s right to limit liability is thoroughly canvassed by Rares J in The APL Sydney at [22]-[42]. It can be traced back to Spain in the 14th century from whence it spread, and in England to the 18th century. As his Honour identifies, there were different approaches as between England and continental Europe, and indeed elsewhere, which led to efforts by the Comité Maritime International (CMI) to prepare a draft international convention to deal with the limitation of liability for maritime claims.

158    The publication of the proceedings of the 1921 Antwerp Conference of the CMI record the discussion of national delegates on the wording of a draft convention on Limitàtion de la Responsibilité des Propriètaires de Navires, ie Limitation of Shipowners’ Liability, see Bulletin No. 47: Conférence d’Anvers (CMI, July 1921). Apparently because of the disruption caused by World War I, no further work had been done since a draft convention had been prepared by the Brussels Diplomatic Conference in 1910 followed by the Sub-Commission which met in March-April 1913. That draft included, in Art 1(5), as claims subject to limitation, “De l’obligation d’enlever l’épave d’un navire coulé et des obligations s’y rattachant”, ie the obligation to remove the wreck of a sunken ship and the obligations relating thereto. Provision was made in the closing protocol for reservation from the adoption of limitation for damage to ports, docks and waterways, but not for wreck removal per se. (See Bulletin No. 47 at 6, 18 and 19).

159    Presented to the Antwerp Conference was a report by Mr Maurice Hill KC dealing specifically with the implications of two proposed conventions from 1913 for the rights of dock and harbour authorities, one being the proposed convention on limitation. Mr Hill forcefully argued that the adoption of the draft limitation convention in the United Kingdom would cause the rights of dock and harbour authorities to be “most seriously diminished”. Specifically as regards the draft Art 1(5), he argued that it would create an entirely new subject of limitation which would seriously alter the rights of dock and harbour authorities because the existing position was that wherever such authorities had a right in personam for the expenses of wreck raising, it was a right to which no limitation applied. (See Bulletin No. 47 at 170, 174-175.) Mr Hill argued that the draft convention would for the first time entitle a shipowner to limit their liability for wreck-raising expenses, and that there should be an exclusion from limitation of any liability of shipowners “to Authorities administering harbours, docks, piers or navigable ways, or to affect the rights of such Authorities under the municipal laws of each State in reference to wrecks and obstructions to navigation and the recovery of expenses in connection therewith” (at 186-187). A copy of a letter from the UK Dock, Harbour and Conservancy Authorities dated 24 February 1914 was also presented to the conference, under the cover of which Mr Hill’s report was presented (at 191-194).

160    The 1924 Convention was signed at Brussels on 25 August 1924. In French and English texts, it provided for the limitation of the liability of the owner of a seagoing vessel in respect of eight heads of claim including, in Art 1(5), “Any obligation to remove the wreck of a sunken vessel, and any obligations connected therewith”. However, consistent with what Mr Hill KC had argued, it was provided in the Protocol of Signature that the “High Contracting Parties reserve to themselves the right not to admit the limitation of the liability … for damages done to works in ports, docks, and navigable ways and for the cost of removing the wreck, or the right only to ratify the treaty on those points on condition of reciprocity” (emphasis added).

161    The United Kingdom’s Ambassador at Brussels signed the convention for Great Britain and Northern Ireland on 15 November 1924, making the allowed reservation with respect to Art 1 and thereby excluding claims for the cost of wreck removal from limitation. Notwithstanding that, the United Kingdom never ratified the Convention or adopted its terms into domestic law. The Convention did not gain widespread acceptance, although it did come into force – in 1931. By 1955, only 13 states had ratified or acceded to the Convention.

E.4.2    1957 Convention

162    Limitation of liability continued to be governed in England (and Australia) by Pt VIII (ss 502-508) of the Merchant Shipping Act 1894 (Imp) (repealed) (MSA 1894). A few cases decided under that regime give some insight into what followed.

163    It was held by the House of Lords in The Stonedale (at 8) that the statutory claim of the harbour authority for its expenses in removing a wreck was not limitable as it was not a liability for damages; rather, it was a liability in debt that did not rely on any fault by the vessel owners. That was because the relevant words in s 503(1) of the MSA 1894 were that the shipowner would not “be liable in damages” beyond the specified amounts. Although the decision is based entirely on the statutory wording and is therefore of no assistance in construing any Convention, it illustrates the point that had been forcibly made by Mr Hill KC in his report presented to the 1921 Antwerp Conference that there were statutory claims by harbour authorities that were not subject to limitation in England, and under Art 1(5) of the 1924 Convention they would be so subject but for the exercise of the power of reservation.

164    In The Arabert, the owners of the Arabert sought the right to limit their liability for damages payable to the owners of the Cyprian Coast in respect of a collision between those two vessels. The Cyprian Coast had sunk in the port of Newcastle which prompted the relevant harbour authority to have the wreck raised and handed over to its owners against their undertaking to repay all the costs of raising the wreck. Lord Merriman, President of the Probate, Divorce and Admiralty Division of the High Court of Justice, held (Lloyd’s Rep at 371) that the claim by the owners of the Cyprian Coast for the amount for which they were liable to the harbour authority was a claim for damages and was therefore limitable. The Stonedale was distinguished in that respect. Lord Merriman disagreed (at 371) with the earlier Scottish case, The Urka, which had gone the other way.

165    The upshot of The Arabert is that the claim by the owners of the sunken ship for their loss in having the wreck raised or removed was limitable at the instance of the owners of the other (wrongdoing) ship. That is in contrast to The Stonedale which held that the port authority’s claim for its expenses in raising or removing the wrongdoing ship was not subject to limitation at the instance of the owners of the wrongdoing ship. As with the The Stonedale, The Arabert did not turn on the language of any Convention, but it provides an illustration of a type of wreck removal claim that was subject to limitation.

166    That is the relevant background insofar as the United Kingdom and Australia are concerned in the lead up to the 1957 Convention.

167    The story can be taken up with reference to the papers from the CMI Madrid Conference in 1955. The British Maritime Law Association (BMLA) presented a report dated 22 July 1954 representing the unanimous views of those engaged in maritime commerce in the United Kingdom in which it was said that the Association was authorised by its Constituent Members to take part in the drafting of a new international convention on limitation. It proceeded to identify certain “defects” in the 1924 Convention. Although Art 1(5) was identified, no more was said about it. (See Madrid Conference: Preliminary Reports, Minutes, Draft Conventions (CMI, 1955) (1955 Madrid Conference) at 51, 54-55.) However, the text of a new draft Convention, dated 10 December 1954, included amongst claims subject to limitation “any obligation or liability, imposed by any law relating to the removal of wreck, arising from or in connection with the raising, removal or destruction of any ship (including anything on board the ship) which is sunk, stranded or abandoned, which said obligation or liability is hereinafter referred to as ‘wreck liability’” (at 97). That wording continued through to the draft of July 1955 as Art 1(c) (at 211).

168    In the discussion of the July 1955 draft at the Madrid Conference, Mr CT Miller representing Great Britain explained in relation to the draft Art 1(c) that under most continental laws shipowners were entitled to limit their liability in respect of such claims, but that under “our law” they were not. From that it is apparent that Art 1(c) was regarded as including as subject to limitation the kind of claim that in The Stonedale had been held not to be subject to limitation. Mr Miller explained that since the matter had last been discussed in the CMI the BMLA had had further discussions with the Harbour and Dock Authorities Association to see whether some arrangement could be reached, but that unfortunately it could not. He therefore asked that once again there be the insertion of a protocol with regard to the matters mentioned and set out in Art 1(c). (See 1955 Madrid Conference at 431.) That proposal received support from France (at 434) and was ultimately adopted in the draft to go forward to the Diplomatic Conference (at 504 and 563). The British delegation recorded that the British Government reserved the right to exclude wreck liability from Art 1 (at 589).

169    The draft convention was the subject of further debate and then adoption at the 1957 Brussels Diplomatic Conference on Maritime Law (published as Conférence Diplomatique de Droit Maritime, Dixième Session, Bruxelles 1957 (Royaume de Belgique, Ministère des Affaires étrangères et du Commerce extérieur, 1958). Several delegations spoke to the importance of retaining the right, as in the 1924 Convention, to make a reservation in relation to the inclusion of wreck removal claims in the list of claims subject to limitation, although others spoke to the role that reservations play in undermining international uniformity. The Australian delegate, Mr Wharton, spoke in favour of a Canadian proposal to delete para (c) from Art 1, explaining that the laws in Australia provide that the owners shall pay for the removal of wreck in Australian ports and that the Australian Government could not therefore commit to the inclusion of para (c) (at 268). Once again, it is apparent that the claims that were in mind were those of harbour authorities against the owners of the ship claiming limitation.

170    The Canadian delegate, Mr MacGillivray, explained that the law of Canada places upon the owner of a sunken ship or the person who caused it to become sunken, the duty of removal and that the inclusion of para (c) would result in removing from the owners the incentive to raise their own wreck, rather than turning it over to the Government to raise and then to claim limitation (at 265-266). However, the Canadian motion to delete para (c) failed by 18 votes to 4 with 7 abstentions (at 276).

171    I have already set out the relevant text as ultimately adopted in my discussion of The Tiruna (see [123] above).

172    It is clear from the history of the 1924 and 1957 Conventions 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. That was not only to protect the authorities, funded as they no doubt were by public money in the days before widespread privatisation of public assets, but also to ensure that there was an incentive for shipowners to remove 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.

173    The effect of the United Kingdom reservation received attention in The Putbus. As a result of a collision in Rotterdam between the Zanatia and the Stubbenkammer, the Stubbenkammer sank. The wreck was removed by the Dutch Government which had a right based on the owners’ fault to recover the cost of raising and removing the wreck. That claim was limitable under Dutch law and the owners established a limitation fund.

174    A sister ship of the Stubbenkammer, the Putbus, was arrested by the owners of the Zanatia in England. Although they put up security to the limitation amount in London in order to secure the release of their vessel, the owners of the Putbus then applied for the release of the security on the basis that they had already established a limitation fund in the Netherlands. A question arose as to whether the liability of the owners of the Stubbenkammer (and the Putbus) to the Dutch Government was of a type that would be limitable under s 503 of the MSA 1894 as amended by s 2 of the Merchant Shipping (Liabilities of Shipowners and Others) Act 1958 (UK) (the 1958 Act) – because if it was not, the owners of the Zanatia would be prejudiced by having to pursue their claim in the Netherlands and share in the fund established there. The 1958 Act sought to enact the 1957 Convention. It provided in s 2(2)(a) that “where any obligation or liability arises … in connection with the raising, removal or destruction of any ship which is sunk, stranded or abandoned or of anything on board such a ship” the occurrence giving rise to the obligation or liability shall be treated as being within the descriptions of limitable claims. However, under the right of reservation, s 2(2)(a) was suspended pending some future statutory instrument coming into force, which never occurred. The expert evidence on Dutch law showed that the liability of the owners of the wreck to the Dutch Government depended on whether their vessel was at fault or not, ie it was fault-based liability.

175    Lord Denning MR reasoned (at 151D) that because s 2(2)(a) of the 1958 Act had not come into force, it did not have to be considered. Nevertheless, his Lordship expressed the view that it covered “wreck-raising and wreck-removing where there is no negligence”. In other words, on that view the type of claim excluded from limitation in The Stonedale would be limitable under the 1957 Convention where Art 1(1)(c) was applied, but not otherwise. Lord Justice Edmund Davies similarly rejected the contention that the effect of s 2(2)(a) not having commenced was to make wreck removal claims not subject to limitation. That was on the basis that that provision deals with non-fault-based liability for wreck-raising and wreck-removal (at 152E and 154A-C).

176    Lord Denning MR also recognised (at 150G) that in English law there is a public right of passage through navigable channels which is infringed when, through negligence on the part of the owners, a vessel has sunk in such a position as to cause obstruction in the channel. The public authority concerned is then duty-bound to remove the obstruction and has a common law right to recover against the owners, as damages, the reasonable cost of the work. Such a claim would be subject to limitation (at 151C). Lord Justice Edmund Davies reached the same conclusions (at 153E). Examples of such a common law claim in negligence include The Ella [1915] P 111 and Dee Conservancy Board v McConnell [1928] 2 KB 159 (CA).

177    Lord Justice Phillimore agreed with both the Master of the Rolls and Edmund Davies LJ (at 155D).

178    Thus, it was held that notwithstanding that wreck removal claims as described in Art 1(1)(c) of the 1957 Convention had not been included amongst claims subject to limitation in the enactment of the Convention in England, the wreck removal claim of the Dutch Government which was based on the negligence of the owners of the wrecked vessel was subject to limitation within the meaning of s 2(1) of the 1958 Act. Also, it was reasoned in obiter that the extension of claims subject to limitation reflected in para (c) was with respect to non-fault-based liability for wreck removal to public authorities. There was no suggestion that paras (a) and (b) should be read as limited by the non-enacted para (c).

179    Similarly in The Berwyn, it was held that the enactment of the extension of limitation to wreck removal but which had not been brought into force did not have the effect of excluding a harbour authority’s damages claim in negligence for wreck removal from limitation (at 102-103). The harbour authority’s statutory claim in debt, as in The Stonedale, was not subject to limitation (at 104).

180    The Putbus and The Berwyn can be seen as giving support to the proposition that the non-enactment of the extension of limitation to wreck removal claims does not have the effect of removing all such claims from other heads of limitable claims. However, ultimately little assistance is offered by these cases because they turn on the peculiar wording of domestic statutory provisions and not on the terms of the relevant Convention. For the same reason, they do not detract from the conclusion that claims for the expenses of removing the wreck of the limiting ship are not within Arts 2(1)(a) or (c) of the 1976 Convention.

E.4.3    1976 Convention

181    Work began on a possible new convention on limitation of liability in 1972, as recorded in The Travaux Préparatoires of the LLMC Convention 1976 and of the Protocol of 1996 (CMI, 2000) (LLMC 1976 travaux) at 2. As with the earlier convention, the focus of attention was not on wreck removal. Nevertheless, the differences in views about whether limitation should be available for wreck removal claims, whether they should be uniformly excluded or whether States Parties should have the right of reservation in relation to such claims, were aired from time to time. It is clear from the Second Report of the Chairman at the CMI Hamburg Conference in 1974 that what became paras (a) and (c) of Art 2(1) were regarded as the “hard core” of limitable claims, covering damage to property and loss consequent on such damage and “abstract loss” respectively (LLMC 1976 travaux at 60 and 62). Paragraphs (b), (d), (e) and (f) were seen as necessary insofar as they defined limitable claims which were not covered by (a) and (c), “such as wreck removal and the rendering harmless of the cargo” (at 60 and 74).

182    The report of the Legal Committee’s 25th session in January 1975 explains that the concern with regard to wreck removal claims being limitable was that that might be conducive to the neglect of wreck removal by shipowners, and might similarly discourage removal, destruction and rendering harmless of cargoes in cases of necessity (at 74). Generally, damages to harbour works and wreck removal were discussed together, although ultimately damage to harbour works was included by specific mention in para (a). Lord Diplock, representing the United Kingdom, explained that 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 (at 192). Since owners’ liability for wreck removal is readily insurable – it forms part of standard P&I cover (see Hazelwood S and Semark D, P&I Clubs: Law and Practice (4th ed, Lloyd’s List, 2010) at 178), 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 – the authorities would not be insured for any amount they could not recover from the owners of the wrecks.

183    The insurance considerations demonstrate that there is nothing peculiar or problematic in the innocent owners of a wreck being unable to limit in relation to the claim against them by an authority which is charged with having the wreck removed but when they claim that loss from the wrongdoing ship the latter’s owners can claim limitation. The difference between the innocent owners’ liability and what they can get back from the wrongdoing owners will be the P&I insurer’s loss.

184    An analogous situation arose in The Breydon Merchant [1992] 1 Lloyd’s Rep 373. Cargo-owners claimed their liability for cargo’s share of liability to salvors from shipowners. The latter claimed limitation in relation to that claim as being a claim for salvage expressly excluded from limitation under Art 3(a). Justice Sheen held (at 375) that the cargo-owners were not making and could not make a claim for salvage against the shipowners. They were making a claim for damages for breach of contract, part of the damages for which was measured as the amount for which the cargo-owners were liable to the salvors.

E.4.4    Conclusion on the history

185    There are a number of points that emerge from the history of the 1976 Convention, and in particular the travaux.

186    First, the inclusion of a head of limitable claim expressly including wreck removal can be traced back to the 1924 Convention. Initially no option to make a reservation in relation to that head was envisaged, but that was changed following advocacy on behalf of dock and harbour authorities because of their concern that their claims in relation to wreck removal should not be subject to limitation.

187    Secondly, essentially the same position was carried through to the 1957 Convention, the debates once again showing a concern from a number of countries to avoid the wreck removal claims of harbour and like authorities from being subject to limitation.

188    Thirdly, much the same concerns came forward in the debates leading to the adoption of the 1976 Convention. In particular, a concern with regard to wreck removal claims being limitable was that that might be conducive to the neglect of wreck removal by shipowners. Another concern was that the claims of harbour authorities with regard to wreck removal should not be limited.

189    Finally, although in each case provision was made for States Parties to exercise a reservation in relation to wreck removal claims, the inclusion of wreck removal claims within the heads of claim that were (or could be) subject to limitation was to extend limitation to such claims which were clearly regarded as not necessarily being otherwise covered by the other heads of claim.

190    The history accordingly supports the construction that I have in any event otherwise arrived at. That is because it recognises that, relevantly, 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.

E.5    Resolution on issue 2

191    In the result, I conclude that TasPorts’ wreck removal claims as particularised in para 22(e) of its amended statement of claim in the liability proceeding are claims that come within Art 2(1)(a) of the 1976 Convention and they are not excluded from being subject to limitation by Australia’s exercise of its right of reservation not to implement Art 2(1)(d).

F.    Disposition

192    For the reasons above, prayers 1 and 3 of TasPorts’ cross-claim in the limitation proceeding should be dismissed. I will reserve any decision on costs pending hearing from the parties.

Associate:

Dated:    26 July 2024

SCHEDULE OF PARTIES