This case relates to an incident that occurred on 19 February 2006 in which the respondent, Mody, allegedly consumed caustic liquid out of a bottle labeled as 'water' whilst he was on the SV Sea Spray owned by the appellant, South Sea Cruises Ltd (SSCL). Mody was on a holiday in Fiji with his family. As a result of consuming caustic soda, Mody suffered chemical burns to his mouth, throat, esophagus and stomach. He sued SSCL in the New South Wales Supreme Court in Australia where he was from.

SSCL sought to have its limitation of liability determined pursuant to s 178(1) of the Marine Act 1986 which gives domestic effect in Fiji to the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships 1957 (LLMC 1957). 

Prior to the incident, the chef on board the SV Seaspray, Setareki Ratatagia, cleaned the griller with the caustic liquid. He then decanted the caustic liquid into an empty water bottle. After cleaning the barbeque griller, Mr Ratatagia placed the bottle containing the caustic liquid near the main mast. During the cruise, Mody was having his lunch on board the SV Seaspray near the main mast. He had been previously sitting near the main mast drinking water from a bottle that had a label indicating it was water. Mody picked up the bottle containing the caustic liquid, thinking that it was the bottle of water that he had been drinking from, consumed some of the contents of the bottle containing the caustic liquid thereby causing him personal injury.

Ratatagia was engaged by SSCL as a chef because he had cooking experience. Any ordinary and reasonable person involved in the cooking profession, should, as a matter of common sense, know better than to decant caustic liquid into a water bottle and to leave the caustic liquid in a water bottle in a popular eating area of the SV Seaspray. It is self-evident that Ratatagia should, in the exercise of the reasonable skill which SSCL was entitled to expect from a person engaged as a chef, have placed the bottle containing the caustic liquid in safe storage.

SSCL contends that the actions of the chef in leaving the bottle containing the caustic liquid near the main mast where it could be mistaken by guests on board the SV Seaspray for water and the subsequent injury suffered by Mody was without the actual fault or privity of SSCL and it is therefore entitled to limit its liability. SSCL also appealed the earlier costs order made against it (see CMI271).

Held: Applications dismissed.

It is clear from art 1.1 of the LLMC 1957 that even if the Limitation Convention has wide and general application, the owner cannot limit its liability under s 178(1) if 'the occurrence giving rise to the claim resulted from the actual fault or privity of the owner' or if the owner is responsible for the 'act, neglect or default' of the person who caused the personal injury.

In other words, there must be a prior inquiry into whether there is 'actual fault or privity of the owner' or 'an act, neglect or default' for which the owner is responsible. That inquiry has not yet taken place in this Court. It is being conducted in the NSW Supreme Court. The limitation argument therefore should be taken up in the NSW proceedings and not in Fiji. This Court should be used as a means of interfering with or restricting the findings of the court in the NSW proceedings.