This was an appeal from an interlocutory judgment of the High Court refusing the appellant charterer's application that it was entitled to limit its liability by reference to the limitation fund constituted by the first respondent (the original plaintiff) as the owner of the MV Southern Phoenix, a vessel that capsized in the Port of Suva: for the earlier proceedings, see CMI1613 and CMI1785. The appellant argued that the provisions of the Marine Transport Act 2013 (the Act) should be interpreted by reading into the Act the deeming provisions of art 11.3 of the LLMC 1976, even though Fiji is not a signatory to the Convention.

Held: Appeal dismissed. The judgment of the High Court is affirmed. The High Court is directed to set down the main/substantive matter for trial. If the appellant intends to pursue its application in the High Court, it is directed to comply with the order of the High Court in regard to the constitution of its limitation fund.

The law relating to shipowners' liability was originally designed to protect and benefit shipowners. However, the protected category of persons has widened over time, and legal regimes have expanded the definition to capture persons other than shipowners such as charterers, masters, crew members, salvors, and insurers.

The need to limit liability was triggered by the public policy need to encourage shipping, and restore confidence in shipowners, who had previously been subjected to heavy damages, over and above even the value of the vessel. It is easy to imagine the sense of urgency and self-protection that triggered the creation of the rules of limitation, in a world when international transportation was predominantly confined to travel by sea. The principle of limitation of liability was designed to encourage shipping by protecting shipowners from having to bear heavy pecuniary damages flowing from the negligent navigation of their ships on the part of their servants and agents.

The LLMC 1924 did not fulfil its aims and meet the needs of the shipping community, and it was eventually succeeded by the LLMC 1957, which Fiji has ratified, and which remains the law in Fiji. The LLMC 1957 was widely accepted among important maritime nations including the UK and Canada. It provided one limit for property damage, and another for personal injuries and death, both limits being based on tonnage of the ship. The basis of liability is proof by the claimant of actual fault or privity of the owner. Fiji has ratified and adopted this Convention.

It is not tenable for the appellant to submit that it did not rely on the LLMC 1976, when in fact it is using the words in art 11.3 of the LLMC 1976 to put forward the argument that what is contemplated, and what must be taken to have been contemplated, by Fiji's legislature is that there is only one limitation fund, because limitation rises only in respect of one distinct occasion:

1. Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked. ...

3. A fund constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively.

Assuming, without conceding, that the appellant is entitled to rely on art 11 of the LLMC 1976, it is difficult to see how the reference to a single fund can be based purely on the word 'a', without reference to the very purpose for which a limitation fund was in principle regarded as necessary.

It is important to note that limitation is not a limitation on the number of funds, but that limitation is only to limit the totality of damages that can be claimed by the several claimants against a person who comes within the definition of 'owner', for the purpose of limiting liability.

A consideration of the appellant's submissions reveals that its key submissions are diametrically at variance with each other. On the one hand, the appellant submits that the duty of the Court is to ascertain the intention of the legislature as expressed in legislation. On the other hand, the appellant submits that the Court ought to take into account the legislative context and give effective presumptions of interpretation in this particular case. The appellant cannot approbate and reprobate.

It is undisputed that the LLMC 1976 has not been ratified by Fiji, and is not part of the maritime regime of this country. The appellant admits this but argues, with respect, rather circuitously, that limitation is a creature of statute and international Convention, and that Fiji, like many other countries, has provided for shipowners to limit the aggregate of their liability for all claims rising on a distinct occasion to a sum of money calculated with reference to the tonnage of the ship in relation to which the claims arose.

However, the plain meaning of the words in s 77(b) of the Act, which provide that when a ship is chartered, the 'owner' means the charterer, without doubt requires the charterer to do what an owner would have done if the ship had not been chartered, ie, constitute its own limitation fund, if it intends to seek the benefit of limitation of liability. It cannot possibly be contended, as is done by the appellant, that the legislature contemplated that the liability of a charterer can be foisted on the registered owner.

What is at issue here is not whether the principles of limitation of liability apply under Fiji law. There is no doubt that the statute law of Fiji has adopted the principle of limitation of liability. The question for determination is whether a deeming provision in a treaty that has not been ratified by Fiji can inform the interpretation of unambiguous words in the Fiji legislation. There is no legal basis for this Court to legislate.