LP News issue 17 - UK P&I Members Area

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case summaries continuedthe widening of the category of personsentitled to limit their liability. Thisinterpretation was also putting a gloss onthe word ‘charterer’ which was notapparent from the words used. He citedthe dicta of Lord Macmillan in a case onthe interpretation of the Hague Rules:“The interpretation of internationalconventions must not be controlled bydomestic principles but by reference tobroad and generally acceptableprinciples of construction. The duty ofa court is to ascertain the ordinarymeaning of the words used, not justin their context but also in the lightof the evident object and purposeof the convention”.Longmore LJ then looked at Article 1 ofthe 1976 Limitation Convention and saidthat two matters were immediatelynoticeable. First, two classes of people areaccorded the right to limit, shipowners andsalvors; secondly, the word ‘shipowner’ isdefined and is said to mean ‘the owner,charterer, manager or operator of aseagoing ship’. The mere fact that‘charterer’ is part of the definition of theword ‘shipowner’ cannot of itself mean thata charterer (an expression otherwiseunqualified) has to be acting as if he were ashipowner before he can limit his liability.Longmore LJ then went on to look atwhether a claim for loss or damage to thevessel by reference to which a chartererseeks to limit his liability is a claim which fallswithin art. 2.1(a), i.e was it contemplated inthe 1976 Convention that the tonnage ofthat vessel could be used to calculate thecharterer’s limitation. He concluded that theanswer was no. On the facts, the only headof claim in respect of which the charterercould limit his liability was the indemnity forcargo claims. His conclusion was thatlimitation was available to a charterer quacharterer but damage to the ship itself wasexcluded from the scope of claims subject tolimitation. A charterer’s ability to limit willtherefore depend on the type of claim thatis brought against him rather than thecapacity in which he was acting when hisliability was incurred.Leave to appeal to the House of Lordswas refused.Dairy Containers Ltd -v- Tasman Orient Line CV[2004] UKPC 22 - Privy Council (NZ case)Construction of a damage limitationclause in a contract for the carriage ofgoods by sea to see if the same isqualified by Art. 10 of the Hague Rules(‘the Gold Clause Trap’)Fifty five coils of electrolytic tin plate weredamaged by seawater. The Hague Ruleswere incorporated into the contract ofcarriage.Article IX Hague Rules; “The monetaryunits mentioned in this convention are tobe taken to be gold value.”Clause 6(B)(b)(i) of the B/L: By the[Hague Rules] , “… if the loss or damage isproved to have occurred at sea or oninland waterways; for the purpose of thissub-paragraph the limitation of liabilityunder the Hague Rules shall be deemed tobe £100 Sterling, lawful money of theUnited Kingdom per package or unit …”The loss was calculated atNZ$ 613,667.25 and Dairy Containers, theB/L holder, were awarded this sum by thefirst instance judge in NZ. The carrierhowever contended that the deemingprovision in Clause 6(B)(b)(i) applied andthat he was entitled to limit his liability to£100 Sterling, lawful money of the UnitedKingdom per damaged coil, making a totalliability of £5,500. This was upheld by theCourt of Appeal. This case came beforethe Privy Council by way of DairyContainers’ appeal against the Court ofAppeal’s decision. Dairy Containers arguedthat the limitation figure of £100 had to beinterpreted by reference to Article IX, the‘Gold Clause’.The Privy Council accepted that theeffect of Art. IX was that the figurereferred to in Art. IV (5) (the originallimitation provision) was the gold value, notthe paper value, of pounds sterling (theRosa S [1988] 2 LLR 574).Had the Hague Rules been incorporatedcompulsorily, the deeming provision wouldhave fallen foul of Article III (8) (provisionmaking null and void any attempt to lessenliability as provided by the Rules). On thefacts, the carriage was not governed byany international convention or by the lawsof Korea and New Zealand and theapplication of the Rules by contractualincorporation and the deeming provision inClause 6(B) was therefore valid.Lord Bingham, delivering the judgment,said: “The general rule should be appliedthat if a party, otherwise liable, is toexclude or limit his liability or to rely on anexemption, he must do so in clear words. Aterm in the bill cannot be repugnant to anyprovision of the Hague Rules if the term inquestion represents a modification of theHague Rules provision agreed by theparties in exercise of their freedom toagree what they will. It would similarly beabsurd to hold that a clear contractuallimitation agreed by the parties isinvalidated by article III rule 8 of the HagueRules.”The carrier’s maximum liability wastherefore £5,500 ■20
personal injuryREPUBLIC OF IRELANDPersonalinjury claims:a changinglandscapeBackgroundIn an effort to tackle the high cost ofinsurance in Ireland the Governmentrecently introduced legislation toimplement two new initiatives. They are:■■the establishment of the PersonalInjuries Assessment Board (PIAB); andthe introduction of strict newprocedures for the handling of personalinjuries litigation.Establishment of PIABKey features■The function of PIAB is to offer a speedyand cost-effective means of dealingwith personal injury claims without theinvolvement of lawyers.■ Under the scheme all personal injuryclaims must be referred to PIAB beforeproceedings may be issued. In respect ofemployers’ liability claims, the schemebecame operational on 1 June, and,earlier than expected, was extended toinclude motor accident and publicliability claims as from 22 July 2004.■ This role of PIAB is limited to assessingclaims and issuing awards which can beaccepted or rejected by the parties.PIAB has no role in determining liabilityand will not make any findings of factrelating to fault or negligence.■ PIAB will only make an assessmentwhere the prospective defendantadmits liability. This is done on a ‘withoutprejudice’ basis and in any subsequentcourt proceedings liability can becontested.■ Where there is no admission of liabilityfor the purposes of a PIAB assessment, itwill issue a release certifi cate, which willallow the claimant to proceed to court inthe normal way.■ The notification of the claim to PIAB willstop time running under the statute oflimitations.Assessment of claimsAssessment of claims is based on writtenevidence, which is made available to bothparties. If a respondentdisputes the claimant’s medical evidence,PIAB will refer the medical evidence to anindependent expert.Each claim is assessed by a panel whichcomprises medical, financial, legal and otherexperts and is chaired by a member of PIAB.Claims are assessed by reference to aPIAB Book of Quantum, which identifies theappropriate levels of compensation payablefor different types of personal injury. This isavailable on the PIAB website atwww. piab.ieIf both parties accept PIAB’s ruling, theaward is binding. Where either or bothparties reject the assessment, the claimantmust issue proceedings within a period of sixmonths and the claim will be treated ‘asnew’ without any reference to the priorPIAB process.Operation of PIAB to-dateAt this early stage, there is no informationpublicly available regarding the number ofclaims handled or the rate of acceptance ofassessments. Its immediate impact has beenlimited by the fact that a huge number ofcourt proceedings were issued in advance ofthe introduction of the scheme in order toavoid its application. In due course PIAB willpublish statistics on its website regarding theclaims handled and assessments accepted.A flowchart identifying the key steps inthe PIAB process is shown overleaf.continued over21
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