This application for leave to appeal to the Supreme Court has its origin in a ruling of the High Court in an admiralty proceeding. Ms Birkenfeld brought a claim against Yachting New Zealand in consequence of a collision between its rigid inflatable boat (RIB) and a windsurfer ridden by her. Yachting New Zealand moved for a decree of limitation of liability pursuant to s 85 of the Maritime Transport Act 1994 (MTA), which is based on the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976). Keane J made such a decree. Ms Birkenfeld appealed unsuccessfully to the Court of Appeal (see CMI531).

Held: Application for leave to appeal declined.

The term 'ship' is defined in s 84 of the MTA as follows: 'Ship means every description of vessel (including barges, lighters, and like vessels) used or intended to be used in navigation, however propelled; and includes any structure (whether completed or not) launched and intended for use as a ship or part of a ship; and also includes any ship used by or set aside for the New Zealand Defence Force.'

The RIB comes within the statutory definition but Ms Birkenfeld submitted that the statutory definition should be read down to confine its scope, at least for the purposes of limitation of liability, to vessels engaged in trade. She argued that pt 7 of the MTA gives effect to the LLMC 1976 and that the rationale of the Convention is that the public interest in encouraging navigation for trading purposes outweighs the public interest in compensating without limitation persons injured by trading vessels.

Ms Birkenfeld argued further that the extent of limited liability is calculated in accordance with s 87 by reference to weight, and weight is calculated in accordance with the International Convention on Tonnage Measurement of Ships. She submitted that since ships of less than 24 metres are excepted from the Tonnage Convention they must therefore be excluded from the ambit of s 87 of the MTA. The RIB is less than 24 metres long. Further, as is indicated by art 15.2, the LLMC 1976 envisages limitation of liability for sea-going ships and the RIB is, she submitted, not a sea-going ship.

Whilst the baldly stated question whether a vessel of less than 24 metres, or a vessel not engaged in trade, is within the ambit of the limitation of liability provisions in the MTA could be perceived as a matter of general or public importance or of general commercial significance, leave should not be granted in this case. That is because it cannot reasonably be argued that pt 7 of the MTA does not apply to the RIB. First, that vessel is plainly within the broad definition of 'ship' in s 84. Second, though vessels of less than 24 metres are excepted from the Tonnage Convention itself, Annex 1 of that Convention, which describes the methodology of measurement, is invoked into the MTA by s 87(5)(b). And in any event, s 87(5)(c) makes provision for cases where the gross tonnage of a ship is unable to be ascertained.

On the question whether only sea-going ships are envisaged by the LLMC 1976, Ms Birkenfeld’s arguments are misconceived. Article 15.2.a allows a State Party to regulate by specific provisions of national law the system of liability to be applied to vessels which are, according to the law of that State, ships intended for navigation on inland waterways. It is plain that if a State Party does not so regulate, the LLMC 1976 applies to all vessels, whether or not intended for navigating inland water ways. The s 84 definition contains no restriction.