The Limitation Convention 1976 isn’t the best drafted of maritime conventions, but the Court of Appeal this morning in The MSC Flaminia (No 2) [2023] EWCA Civ 1007 made a very good stab at cutting through the verbal undergrowth to reach a clear and sensible result.
The background first, for those who don’t know it. In 2012 the MSC Flaminia, a 86,000 dwt container vessel owned by Conti and time chartered to MSC, suffered a disastrous fire while en route from the US to Antwerp when certain containerised chemicals ignited. She received salvage services and was towed dead to Wilhelmshaven, where most of her cargo was discharged and where necessary decontaminated or destroyed. Dirty firefighting water was also offloaded and sent to Denmark to be cleaned up. Further cleanup operations took place in Romania and Denmark; the vessel was then repaired in Romania, and finally returned to service in mid-2014.
All this cost big money. Her owners Conti, having been unsuccessfully pursued by cargo interests in the US, claimed against the time-charterers to recover the expenses of these operations on the basis that they were responsible for the shipment of the dangerous chemicals involved. Arbitrators awarded some $200 million, whereupon MSC sought to limit, the relevant limitation figure being about 25 million SDRs.
Some of Conti’s claims were indubitably outside the 1976 regime limitation, notably the direct cost of repairs (clear since The CMA Djakarta [2004] EWCA Civ 114; [2004] 1 Lloyd’s Rep. 460). But this left the offloading and cleanup costs: were they limitable or not? The Convention was not clear on this. Article 1(2) extended the shipowner’s right to limit to a “charterer, manager and operator of a seagoing ship.” Article 2(1) allowed limitation for personal injury and cargo claims (Article 2(1)(a)), passenger and cargo delay claims (Article 2(1)(b)), tort claims by third parties (Article 2(1)(c)). It then, in its English incarnation, went on to cover “claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship” (Article 2(1)(e)) and “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” (Article 2(1)(f)). How these all fitted together, however, was not very clear.
The Admiralty judge, Andrew Baker J, denied limitation to MSC (see here, noted here in this blog). True, he said, there was no absolute bar on limitation in respect of claims arising between charterers and owners other than for damage to the vessel: indeed there could not be, since clearly owners had to be able to limit if they found themselves at the sharp end of cargo claims from charterers. But limitation was still impossible in this case because, even if dressed up as a series of claims for offloading cargo, rendering it harmless and the like under Article 2(1)(e), Conti’s claim was in substance a single one for damage to the vessel and its consequences, which was exactly what The CMA Djakarta said was entirely outside the limitation regime.
MSC, or rather its P&I Club, fared no better in the Court of Appeal. But here the reasons, given in a pellucid judgment by Males LJ, were slightly different. The rule he advanced about charterer-owner claims was simple and elegant, and sufficed to dismiss the appeal. Charterers were in a special position, different from that of owners. They could not limit at all, he said, in respect of claims by owners (or anyone else in the charmed circle of those entitled to limit under Article 1) for losses originally suffered by the latter. But by way of exception, charterers could limit in recourse claims from owners, who having paid claims to third parties where limitation did apply, then sought indemnity from them. Here, however, that was beside the point: since there was no element of recourse in the present proceedings, it followed that MSC had to pay in full.
This sufficed to wrap up the case. If one may say so, Males LJ’s solution seems instinctively right. Presumably, it is worth adding, it equally applies to claims not from owners but from other charterers: so if there is (say) a series of time charters and subcharters and a claim – dangerous cargo, stowage damage, or whatever – to be passed down the line, each charterer in turn would be able to limit. Presumably also Males LJ’s reasoning applies to operators of vessels who find themselves in the firing line after a casualty and wish in turn to invoke the power to limit under Article 1(2).
Males LJ also said something about MSC’s other grounds of appeal, though these strictly did not arise. In particular, Andrew Baker’s holding that the claim from Conti had to be looked at as a whole he found unimpressive. It is suggested he was right to do so: there seems no reason to demand that a large and possibly disparate claim be pigeonholed as a whole into some category or another rather than looked at seriatim as regards its parts.
It seems to follow that had it been not been found that all the expenses had been incurred as part of the operation of repairing the vessel, and that some had been genuine recourse claims arising from Conti’s potential liabilities to cargo, limitation would have been allowed.
All in all, however, this is a decision that will make the lives of lawyers and P&I executives seeking to settle claims, not to mention academics, a great deal easier. Just what we want: a bit of good news as we all return from our holidays for the new term.
