The plaintiff is the owner of the Duzgit Venture, a tanker which delivers oil and gasoline to Tonga. On 20 January 2019, as the vessel approached the Port of Nuku'alofa, it caught a cable in its anchor. The cable was one of two undersea communications cables owned by the defendant connecting Nuku'alofa, Ha'apai and Vava'u within Tonga with Suva in Fiji. The defendant alleged that this incident caused damage to its cable for which it claimed damages of USD 1,237,890.06.

The plaintiff applied for limitation of liability under s 2 of the Shipping (Limitation of Liability) Act 1980 (the SLLA). The SLLA reflects the terms of the LLMC 1957. The Schedule to the SLLA provides formulae by which to calculate a shipowner’s maximum liability for property and personal claims by reference to the tonnage of the ship multiplied by various amounts of francs. The plaintiff alleged that by application of the relevant formula the limit of its liability for the incident was TOP 859,403.82.

The other legislation which is relevant in this case is the Shipping Act which commenced on 28 February 1973. Section 3 provides as follows:

(1) This Act shall apply to all vessels registered and licensed under this Act or regulations on any voyage and in any waters and to every ship in Tongan territorial waters or in a Tongan port or harbour, and to any ship on which Tongan seamen are employed, but does not apply to any vessel which is less than 8 metres in length or to a ship belonging to the Tongan Defence Services or the defence forces of any other country, including but not limited to, warships, naval auxiliaries, patrol vessels and similar vessels.

(2) Subject to any such reservation as Tonga may make, the following conventions are approved and have the force of law in Tonga, from and after the date, that Tonga deposits instruments of accession with the Secretary General of the International Maritime Organization - ...

(g) Convention on Limitation of Liability for Maritime Claims 1976 and Protocol of 1996 as amended from time to time; ...

(3) In the event of an inconsistency between any convention referred to in sub-section (2) and this Act or regulations made thereunder, the convention prevails to the extent of the inconsistency.

(4) Notwithstanding sub-section (2) of this section, a convention referred to in paragraphs (a) to (m) inclusive, shall not become the law of Tonga until the Minister has given notice to that effect in the Gazette and the Minister may give such notice at different times in respect of different conventions.

The plaintiff pleaded, in the alternative, that if the Convention on Limitation of Liability for Maritime Claims 1976 and Protocol of 1996 (LLMC 1996) was in force in Tonga, then by the application of the relevant formula in that Convention, its maximum liability would be TOP 3,348,496. Accordingly, the plaintiff sought a declaration that its liability for the incident was limited to either the lower amount calculated by reference to the SLLA or the higher amount by reference to the Shipping Act. The plaintiff also applied for orders entitling it to establish a limitation fund.

The defendant argued that the incident was caused by the plaintiff’s negligence or 'actual fault', and the plaintiff was therefore not entitled to the limitation of liability provided by s 2 of the SLLA. It also contended that the LLMC 1996 does not apply in Tonga, which would mean that if the plaintiff was entitled to limit its liability, the lower limit prescribed by the SLLA based on the LLMC 1957 would apply.

Held: The plaintiff is entitled to establish a limitation fund. If the plaintiff is entitled to limit its liability, the lower amount in the SLLA based on the LLMC 1957 will apply.

Section 3(4) of the Shipping Act provides that the LLMC 1996 shall not become the law of Tonga until the Minister has given notice to that effect in the Gazette. Further, s 8 of the SLLA provides as follows:

(1) Should Tonga become a party to an international convention which prescribes different rules for liability than those in this Act, there shall be substituted for the provisions of this Act and the Schedule thereto such different rules in the cases to which such an international convention applies.

(2) Such substitution shall be effected by Order of Cabinet.

(3) If the Minister of Marine certifies that a State is a contracting party to such an international convention the certificate shall be conclusive evidence of the matters certified, and the convention shall be applied accordingly pursuant to this section.

The plaintiff says that although the LLMC 1996 has been adopted in Tonga by the amendments to the Shipping Act, the Convention has 'not been brought into Tongan law because the Gazette notice required under s 3(4) of the Shipping Act has not been given'. Therefore, the regime under the SLLA (ie the substance of the LLMC 1957) remains in effect. After further research, the defendant concurs that there is 'no Order of Cabinet which gives effect to the substitution of the SLLA and its Schedule with the LLMC and/or the Protocol' and therefore, if the plaintiff is entitled to limitation of liability, the SLLA applies.

As the parties are now ad idem about this issue, there is no controversy between them left for the Court to determine.