The applicant sought Court authorisation to set up a limitation fund of MUR 719,658,463.31 by bank guarantee, following the grounding of the MV Wakashio and subsequent bunker oil pollution. The respondent and intervening parties objected to the constitution of the limitation fund.

Held: The applicant cannot constitute a limitation fund for claims related to oil pollution damage, as opposed to non-oil pollution damage arising from, or in relation to, this incident. However, there is nothing which precludes a party against whom there are claims for both oil pollution damage and those not related to oil pollution damage from setting up a limitation fund only for the purposes of meeting claims not pertaining to oil pollution damage, and in respect of which limitation of liability can be invoked.

The applicant argued that the term 'oil pollution damage' in s195(d) of the Merchant Shipping Act 2007 (the Act), while not defined, should be restricted to the CLC 1969 definitions. The Court disagrees. Where words in a statute are not defined by the legislature, the Court has to have recourse to the dictionary definition of the words to understand their scope. The ordinary dictionary definition of the words 'oil pollution damage for any liability incurred' is wide enough to cover not only oil pollution damage from oil tankers carrying oil as cargo, but also oil pollution damage arising from vessels carrying oil as bunker fuel.

The applicant further submitted that the intention behind Pt IX of the Act was to incorporate the main provisions on limitation of liability under the LLMC 1976 into domestic legislation. The applicant argued that the CLC 1969 applies to pollution damage caused by oil tankers only, while the LLMC 1976 applies to pollution resulting from vessels not carrying oil in bulk as cargo. When the LLMC 1976 was domesticated through the Act, it was, therefore, appropriate and necessary in order to avoid a potential conflict within domestic legislation, and to be consistent, only claims falling within the narrower ambit of the CLC 1969 are excepted from limitation of liability under the Act.

The Court disagrees. Mauritius is a dualist State where international law must be transformed into national law before it can be applied by domestic courts. International treaties do not automatically become enforceable within the domestic legal system. They need to be explicitly incorporated into domestic legislation. Although Mauritius has ratified the CLC 1969 and the LLMC 1976, their provisions are not automatically applicable in Mauritius, but only after they have been incorporated into domestic law, and only to the extent incorporated.

The provisions of the CLC 1969 were specifically adopted by the legislature through the 1996 Regulations. However, although Mauritius ratified the LLMC 1976, there has been no wholesale incorporation of the provisions of the LLMC 1976 into law, but rather the enactment of specific parts of the LLMC 1976 into domestic law through the Act.

Section 195 of the Act expressly provides that limitation of liability under Pt IX shall not apply to a claim for oil pollution damage in respect of any liability incurred. Domestic legislation should, if possible, be construed so as to conform to international instruments to which Mauritius is a State party. However, a plain reading of s 195(d) indicates that its purpose is to exclude any limitation of liability under Pt IX of the Act. If it had been the legislature's intention to provide for limitation of liability in respect of oil pollution damage other than oil pollution damage from bunker fuel, it could have easily done so.

This does not mean that the applicant cannot set up a limitation fund. Sections 194 and 195 of the Act refer to claims which are subject to limitation, and those which are excepted from limitation, respectively. They do not preclude a person against whom the claims are being made from setting up a limitation fund where the claims do not pertain to oil pollution damage. Section 204 of the Act provides that a person seeking to limit its liability under Pt IX may do so on the condition that the fund is used only for the payment of claims in respect of which limitation of liability can be invoked.

Further, both claims which are subject to liability and those which are not subject to liability may be brought against the same party. The Act does not proscribe such a course of action, nor does it prevent a party from constituting a limitation fund only for the payment of claims in respect of which limitation of liability can be invoked. The applicant argued that it is inevitable that there will be non-oil pollution related claims brought against the applicant. Those may include claims for direct physical damage to the environment/reefs as a result of the initial grounding and the subsequent wreck removal operations, claims for direct losses/expenses incurred in respect of the raising, removal, destruction, or rendering harmless the ship, and would fall within the purview of s 194(1)(d) of the Act.

The respondents further argued that the Act did not prevail over the provisions of the Code Civil Mauricien. In so far as the present case is concerned, whilst arts 1382 and 1384 of the Civil Code regulate claims for damages generally, Pt IX of the Act has been specifically enacted in so far as limitation and apportionment of liability for maritime claims are concerned. Therefore, any claim within the purview of Pt IX is governed by the special statutory provisions in the Act.