This was a renewed leave to appeal application, and an application for a stay of the High Court order pending that appeal.

The MV Southern Phoenix, owned by Cruz Holdings Ltd (Cruz), sank in Suva harbour, Fiji, on 6 May 2017, resulting in the loss of the ship and its cargo. PDL International Pte Ltd (PDL) was the charterer of the ship at the relevant time. Cruz instituted limitation proceedings in the High Court and paid a limitation fund into Court. PDL filed proceedings to intervene, relying on Cruz's limitation fund. The High Court declined, holding that 'if PDL seeks the benefit and protection afforded by the Limitation Fund, ... PDL must constitute the Limitation Fund itself'.

PDL subsequently sought leave to appeal and stay the order. PDL's initial application was unsuccessful: see Cruz Holdings Ltd v Concrete Solutions (Fiji) Ltd [2021] FJHC 273 (CMI1613). The High Court held that there was no provision in the LLMC 1957, which was adopted and ratified by Fiji, for PDL to have Cruz’s limitation fund treated as also being PDL's limitation fund. There was also no such provision in the Maritime Transport Act 2013 (the Act). PDL's argument was primarily based on the provisions of the LLMC 1976. The LLMC 1976 found it necessary to adopt the 'sharing' rule as a special deeming provision, which contradicted PDL's arguments.

PDL appealed to the Court of Appeal.

Held: Leave to appeal against the ruling of the High Court is granted. The stay order sought by PDL is granted. The matter is to be listed before the full Court of Appeal for a hearing.

PDL (the charterer of the ship) is included in the definition of 'owner': see s 2, read with ss 77(b) and 88(1)(b) of the Act. In contrast with s 2, s 77(b) and s 88(1)(b), however, s 82(3)'s definition of 'limitation fund' refers expressly to 'a ship owner' only: '"limitation fund" means a guarantee or deposit made by a ship owner to meet any damage claim, and calculated on the negligent ship's tonnage'. Consequently, could there be another limitation fund? In other words, a limitation fund of the charterer?

Craies, Statute Law (7th ed, Sweet & Maxwell 1971) 213 opines: 'where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and prima facie restrictive and where an interpretation clause defines a term to include something, the definition is extensive'. Lord Denning MR said in The Bramley Moore [1963] 2 Lloyd’s Rep 429 (EWCA): 'The principle underlying limitation of liability is that the wrongdoer should be liable according to the value of his ship and no more'. The thinking in that judicial exposition is the focus and the emphasis placed on 'the ship owner'. A charterer surely cannot put a value on the ship because it is not the shipowner.

Liability for the relevant incident has not been admitted by either the shipowner or the charterer. Thus, as I read the purport of the Act, while a charterer is included in the definition of 'owner', it is excluded in the definition relating to the concept of the 'limitation fund'.

Consequently, the High Court Judge fell into error when he held that any party entitled to limit for claims from a single occurrence had itself to establish a separate fund.

This matter requires interpretation of the provisions of the Act. I am inclined to grant leave to appeal for the full Court of Appeal to go into and make a pronouncement thereon. In view of the approach I have adopted, I did not see the need to comment on the LLMC 1976, which would have led to reflections on the conceptions of monism and dualism.