This was an action for anchorage, mooring, and tug charges involving the vessel MV Southern Phoenix, which sank within the boundaries of the port of Suva. The plaintiff was the owner and manager of the port, and the defendant was the registered owner of the vessel.

The defendant applied to strike the claim out on the basis that the tug charges could only be part of its action for limitation of liability under the Maritime Transport Act 2013 (the Act). The Master dismissed the application and held that whether the charges claimed by the plaintiff fell within the ambit of s 79(2) of the Act (based on art 2.1d of the LLMC 1976) was an issue for determination at trial. The defendant applied for leave to appeal the decision of the Master.

There was no dispute that the plaintiff utilised tugs to move the vessel upon a call of distress when it was tilted and sinking. The defendant contended that the vessel was abandoned when the plaintiff utilised the tugs to remove the sinking ship. The vessel was removed to minimise the disruption to port activities or clear the vessel from the main berth and infrastructure. Furthermore, there was no contractual relationship between the defendant and the plaintiff. Therefore, the claim was subject to limitation under s 79 of the Act.

Held: Leave to appeal granted. All proceedings before the Master stayed until final disposal of the appeal against the decision.

The limitation applied to claims stated in s 79 of the Act:

79(2) The following claims shall be subject to limitation of liability ... (d) claims in respect of the raising, removal, destruction, or rendering harmless of a ship which is sunk, wrecked, stranded, or abandoned, or of anything that is or has been on board such a ship;

The application of limitation of liability was found in s 81 of the Act:

81(1) The limitation of liability under this Part ... (d) applies, subject to subsection (4), whether the liability arises at common law or under any other written law, and notwithstanding anything in any other written law.

(2) This section shall not limit or affect section 96 of this Act

Section 81(1)(d) of the Act stated 'subject to subsection (4)', but there were only two subsections. Subsection 2 made exceptions to limitations, and they were found in s 96 of the Act, which refers to 'Removal of Hazard for Navigation'.

It was contended that, subject to s 96, limitation was applicable in terms of s 81 of the Act.

In terms of the Act, liabilities arising from common law or under any other written law cannot override the statutory provision in another law. This was not considered by the Master and needed to be considered along with s 79 of the Act. This legal issue was sufficient to grant leave to appeal from the interlocutory decision.

The issue before the Court was whether the plaintiff could institute this action for a claim for expenses in terms of statutory provisions for the engagement of tugs before the ship was fully sunk, but was under distress when the plaintiff received a message of distress and decided to involve tugs to clear the port infrastructure.

The long title of the Act read 'for the implementation of Fiji's obligation under the IMO conventions and to ensure that participants in the maritime transport system are responsible for their actions and to consolidate related maritime laws including the protection of the marine environment and for related matters'. Therefore, the Interpretation of the provisions contained in the Act should take into consideration Fiji's obligations under the International Maritime Organization's conventions, and for that, the LLMC Conventions were relevant. 

The Act contained a list of Conventions that were applicable for consideration of issues under the Act. It included the LLMC 1957 and future amendments and Protocols to the Convention.

At this stage, it was sufficient to state that domestic statutory provisions that refer to the latest amendments and protocols were relevant for the interpretation of the provisions relating to limitations on civil liability, which the defendant relied on for the strike out, and these were not considered by the Master.

There were merits in the grounds of appeal relating to the interpretation of the claim for towage during a distress of the ship while it was sinking, and whether this was a claim that could be made in this action based on the statutory provisions pleaded in the statement of claim.

There could only be two outcomes in this application, but the manner in which that outcome is reached was more important in the jurisprudence of Fiji considering the comity of nations founded on the LLMC and Protocols, in terms of the Act.