§ 4.7 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Viscount Stonehaven.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 agreed to.
§ THE MINISTER WITHOUT PORTFOLIO (LORD MANCROFT) moved, after Clause 1 to insert the following new clause:
§ Amendments as to nature of liability limited by Merchant Shipping Act, 1894, s, 503
§ "2.—(1) In subsection (1) of section five hundred and three of the Merchant Shipping Act, 1894, the following paragraphs shall be substituted for paragraphs (c) and (d)—
- "(c) where any loss of life or personal injury is caused to any person not carried in the ship through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship or in the loading, carriage or discharge of its cargo or in the embarkation, carnage or disembarkation of its passengers, or through any other act or omission of any person on board the ship;
- (d) where any loss or damage is caused to any property (other than any property mentioned in paragraph (b) of this subsection) or any rights are infringed through the act or omission of any person (whether on board the ship or not) in the navigation
- or management of the ship, or in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers, or through any other act or omission of any person on board the ship;"
§ (2) For the purposes of the said subsection (1), where any obligation or liability arises—
- (a) in connection with the raising, removal or destruction of any ship which is sunk, stranded or abandoned or of anything on board such a ship, or
- (b) in respect of any damage (however caused) to harbour works, basins or navigable waterways,
§ (3) The application of the said section five hundred and three to any liability shall not be excluded by reason only that the occurrence giving rise to the liability was not due to the negligence of any person.
§ (4) Nothing in the said section five hundred and three shall apply to any liability in respect of loss of life or personal injury caused to, or loss of or damage to any property or infringement of any right of, a person who is on board or employed in connection with the ship under a contract of service with all or any of the persons whose liabilities are limited by that section, if that contract is governed by the law of any country outside the United Kingdom and that law either does not set any limit to that liability or sets a limit exceeding, that set to it by that section.
§ (5) Paragraph (a) of subsection (2) of this section shall not come into force until such day as the Minister of Transport and Civil Aviation may by order made by statutory instrument appoint.
§ (6) The Minister of Transport and Civil Aviation may by order make provision for the setting up and management of a fund, to be used for the making to harbour or conservancy authorities of payments needed to compensate them for the reduction, in accordance with paragraph (a) of subsection (2) of this section, of amounts recoverable by them in respect of the obligations and liabilities mentioned in that paragraph, and to be maintained by contributions from such authorities raised and collected by them in like manner as other sums raised by them in respect of vessels; arid any such order may contain such incidental and supplementary provisions as appear to the Minister to be necessary or expedient.
§ (7) The power to make an order under sub-section (6) of this section shall include power to vary or revoke any such order by a subsequent order and any such power shall be exercisable by statutory instrument, which shall be 422 subject to annulment in pursuance of a resolution of either House of Parliament."
§ The noble Lord said: There is a formidable list of Amendments on the Order Paper standing in my name but I can assure your Lordships that there is no real cause for alarm. As I explained on the Second Reading of Lord Stonehaven's Bill, the Government were taking this opportunity to amend his Bill to include certain Amendments which would give effect to all the provisions of the Brussels Convention not covered by it. This would not only bring up to date our own law, now seriously out of date, but would also enable the Government to ratify the Convention with the minimum of delay. By doing so we hope to encourage other Governments to ratify this important Convention.
§ I outlined briefly on Second Reading the Amendments I suggested you might like to consider for incorporation into the Bill. Your Lordships were good enough to indicate that they met with your approval—indeed, I think they are all non-controversial and have been very largely agreed by the interests concerned. I must emphasise that we have been at pains to consult all the interests concerned. There are one or two points where some differences exist, and I will indicate those when we come to them. I will go through them in the usual form but will only briefly touch on the main points concerned because they are highly complicated and highly technical Amendments. I will try to help your Lordships on any point of clarification but hope you will take it from me that they are not likely to give rise to any difference of opinion.
§ The Lord Chairman has called Amendment No. 1, which is a new Clause 2 dealing with the nature of liability limited by the Merchant Shipping Act, 1894. What we are seeking to do is as follows. The principal change is to allow limitation of liability for death and personal injury caused to persons on shore. Hitherto, limitation of liability has been allowed in respect of damage caused to property on shore but not in respect of death and personal injury caused to persons on shore. Subsection (2), contains the only other point in the first part of the clause to which I need refer. It adds to the claims for which liability may be limited by including liability in respect of wreck removal and of damage 423 to harbour works, basins or navigable waterways. I think that I also ought to draw your Lordships' attention to subsections (5) and (6). These are intended to suspend the operation of subsection (2) (a) until the Government have been able to work out, in conjunction with the Dock and Harbour Authorities' Association, the British Transport Commission, the Chamber of Shipping and the Liverpool Steamship Owners' Association, a scheme acceptable on all sides whereby harbour authorities may be compensated for sums rendered irrecoverable by reason of shipowners being entitled under the Act to limit their liability for the costs of wreck removal. It is intended that a dry shall not be appointed under subsection (5) until an order has been made under subsection (6). In turn, such an order will be made only when a scheme has been worked out which is satisfactory to all the parties concerned. Those are the provisions of the first Amendment standing in my name on the Marshalled List. I beg to move.
§
Amendment moved—
After Clause 1, insert the said new clause.—(Lord Mancroft.)
§ 4.12 p.m.
LORD GEDDESMay I first declare an interest in this Bill, as I am a director of a shipping company. Through the Chamber of Shipping of the United Kingdom and the Liverpool Steamship Owners' Association, I have been advised upon and will express the views of the shipping industry. There is little that I can add to the explanation of the Amendments to the Bill already given by my noble friend Lord Mancroft, and I would ask your Lordships to accept my remarks as applicable, not only to this but equally to the subsequent Amendments which are to be moved by him. I have at least one point in common with the noble Viscount who introduced this Bill to your Lordships' House, in that I am no lawyer and have no legal qualifications at all. If this Bill was complex in the form in which it was received from another place, it can scarcely be said that it will be simplified by the Amendments now proposed. On the contrary, it is being expanded in several important respects in order to give effect to the main provisions of the Brussels Convention; and it is for this reason that my 424 remarks may seem in pattern to be more appropriate to the Second Reading than to the Committee stage.
The principle that a shipowner is entitled to limit his liability was probably first established in the Nertherlands in the sixteenth century and was adopted in British law in 1734, when shipowners became entitled to limit liability for loss of cargo by theft by the master or members of the crew. The circumstances in which limitation could be claimed were extended in scope in various subsequent Acts, and in 1854 the right to limit was applied to claims for loss of life or personal injury. As has already been emphasised, the existing monetary limits—that is to say, £8 per ton of a ship's tonnage for property damage, and up to £15 per ton for loss of life—were fixed as long ago as 1862.
Although the principle of limitation has been generally accepted throughout the maritime countries, the manner in which it has been applied has varied. In particular, the basis upon which limitation is calculated has differed. In the United Kingdom since 1862, the criterion has been the tonnage of the ship, but in many Continental countries it has been the value of the ship which has been adopted for this purpose. As my noble friend Lord Simon emphasised during the debate on the Second Reading of this Bill, limitation by reference to value can operate unjustly in favour of the owner of an ill-found and possibly ill-equipped ship. The conflict of laws about limitation of liability has created difficulty and confusion in the courts of the various maritime countries, and it was not surprising that this was among the topics discussed by the Comité de Maritime International at its first conference in 1897. After more than twenty-five years of discussion, sufficient agreement was reached internationally on the terms of the Convention, which was signed by the United Kingdom, among other countries, in 1924. This Convention was an attempt at a compromise between the British and Continental systems. It received limited support but was never ratified in this country.
In post-war discussions among British shipowners, agreement was reached that the existing monetary limits under the Merchant Shipping Acts were too low and that a further attempt should be 425 made to reach international agreement on the subject of limitation as a whole. It is to be noted that the shipping industry came to this conclusion purely upon consideration of policy and without any external pressure, Parliamentary or otherwise. The British Maritime Law Association, representative of shipowners, underwriters and the National Constituent Association of the Comité Maritime International, prepared a draft convention which was considered at conferences held in Brighton in 1954 and in Madrid in the following year. It is upon this draft that the provisions of the Brussels Convention of 1957 are based.
Its most important provisions are, first, the adoption of the British basis of limitation—that is to say, the tonnage of the vessel; secondly, the increase in the monetary limits, which will go a long way to avoid the inequitable position of claimants, such as was described by the noble and learned Lord, Lord Merriman, in the debate on the Second Reading; thirdly, the extension of the classes of persons who may limit their liability; and fourthly, the widening of the circumstances in which limitation may be claimed. If the Government Amendments are accepted, the Bill will give effect to the main provisions of the Limitation Convention. In view of the part taken by British shipowners in drafting the Convention, the incorporation of all of its provisions into British law has the full support of the shipping industry. I beg to support the adoption of the Amendments to the Bill.
VISCOUNT STONEHAVENWhen faced with this formidable list of Amendments, being no lawyer, I consulted an expert on shipping law who, fortunately, in his retirement from a firm, is now Sheriff of Aberdeen, and I spent Sunday morning endeavouring to find out what they are all about. I do not know how successful I was, but I can assure your Lordships that a completely independent opinion was all in favour of my noble friend's Amendments to the Bill. They make it a better Bill on this aspect of limitation than its original promoters could ever have hoped for when they originally produced their small and more modest Bill. If it meets with your Lordships' convenience, I shall not speak again unless points are raised by other noble Lords who are experts in these matters 426 and who wish me to do so. I shall merely accept the Amendments when my noble friend Lord Mancroft moves them.
§ LORD CHORLEYI speak with diffidence on this matter, but with such knowledge as I have (which is not an expert knowledge, though I have been a student of shipping law for a number of years), I should like to support what was said by the noble Lord who introduced the proposed Amendments. The Amendments much improve the Bill, which, so to speak, took one bite at the cherry. If it had been passed as drafted, it would have left the law in an unsatisfactory state in that it would have improved it in part yet left it where it was in other parts. It seems to me that this series of Amendments are valuable, not only because they will bring this country and other maritime countries much more into uniformity with each other in respect of this aspect of maritime law, but also because the proposals contained in them are of great value. I have no doubt that your Lordships will accept them, and I think we should be wise to do so.
On Question, Amendment agreed to.
§ LORD MANCROFT moved, after Clause 1 to insert the following new clause:
§ Extension to other persons of provisions applying to shipowners
§ "3.—(1) The persons whose liability in connection with a ship is excluded or limited by Part VIII of the Merchant Shipping Act, 1894, shall include any charterer and any person interested in or in possession of the ship, and, in particular, any manager or operator of the ship.
§ (2) In relation to a claim arising from the act or omission of any person in his capacity as master or member of the crew or (otherwise than in that capacity) in the course of his employment as a servant of the owners or of any such person as is mentioned in subsection (1) of this section,
- (a) the persons who liability is excluded or limited as aforesaid shall also include the master, member of the crew or servant, and, in a case where the master or member of the crew is the servant of a person whose liability would not be excluded or limited apart from this paragraph, the person whose servant he is; and
- (b) the liability of the master, member of the crew or servant himself shall be excluded or limited as aforesaid notwithstanding his actual fault or privity in that capacity, except in the cases mentioned in paragraph (ii) of section five hundred and two of the said Act of 1894."
§ The noble Lord said: This Amendment is concerned with the extension to other persons of the provisions applying to shipowners. Perhaps I ought to draw attention to subsection (1). This subsection gives partial effect to Article 6 (2) of the Convention. It extends the right to limit to charterers otherwise than by demise and to any person interested in or in possession of the ship. This will include shipbuilders who are in possession of the ship, for example while she is on trials. Subsection (2) is new. This subsection also gives partial effect to Article 6 (2) of the Convention. It entitles the master and members of the crew to limit their liability incurred in the course of their employment, thereby preventing plaintiffs from avoiding the shipowner's right to limit by suing his servant instead. These are, I think, the principal provisions of this Amendment. I beg to move.
§
Amendment moved—
After Clause 1, insert the said new clause.—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ LORD MANCROFT moved, after Clause 1 to insert the following new clause:
§ Unregistered ships and ships in course of completion or construction
§ "4.—(1) Part VIII of the Merchant Shipping Act, 1894, shall apply to any structure, whether completed or in coarse of completion, launched and intended for use in navigation as a ship or curt of a ship, and the expression 'ship' in the said Part VIII and in this Act shall be construed accordingly.
§ (2) The said Part VIII shall apply to any British ship notwithstanding that it has not yet been registered.
§ (3) The tonnage of any ship or structure to which the said Part VIII applies by virtue of this section shall, for the purposes of that Part, be ascertained as provided by subsection (2) of section five hundred and three of the said Act of 1894 with regard to foreign ships."
§ The noble Lord said: This Amendment applies to unregistered ships and ships in the course of completion or construction. Under the existing law, if I understand it aright, limitation of liability applies only in relation to ships. This subsection extends limitation to any structure, whether or not completed, which is intended for use in navigation as a ship, or part of a ship, provided that it has been launched, thereby eliminating the possibility of dispute about the stage of construction at which the structure becomes a ship. I beg to move.
428
§
Amendment moved—
After Clause 1, insert the said new clause.—(Lord Mancroft.)
§ VISCOUNT SIMONI hope that before the Committee approves this new clause, as I have no doubt it will, I may he allowed to ask the noble Lord who introduced it whether he could explain the reference to "a part of a ship". I have tried hard to understand this. As I see it, the object of the clause—and it is linked to the previous one—is largely concerned with the liabilities of shipbuilders when a ship is not yet complete and with giving them the benefit of limitation of liability. It appears that this construction, whatever it is, has to be launched and has to be intended for use in navigation. I cannot understand how part of a ship can be launched and intended for use in navigation. To me it seems a curious reference.
Apart from that, what are the claims in respect of which this liability is limited? We have to go back to Section 503 of the old 1894 Act, as amended by the first Amendment to-day, and we find that they are claims which arise from actual omissions in navigation or management of the ship. You cannot navigate or manage part of a ship; and I do not think the shipbuilders manage the ship at all. I have a suspicion that this clause is brought in to deal with the sort of case which happened some time ago and may be in some of your Lordships' minds—the case when there is a serious accident on trials before the ship is delivered to her new owners, and difficult questions of limitation arise. But I do not see how they can arise in respect of a part of a ship, and I should have thought that it was only confusing to include those words.
Finally, may I say that if it is conceivable that there is a part of a ship that can be concerned, I do not understand how the tonnage of any part of a ship to which this applies could be ascertained as provided by subsection (2) of Section 503 of the Act of 1894, because that relates solely to the ascertainment of the tonnage of a ship. I hope that before the Amendment is passed the noble Lord may be able to give us an explanation. I gave him notice of this point, but I am afraid it was short notice, and he may well say that he would rather give an explanation later.
§ LORD CROOKIs it not a fact that one of the triumphs of the shipbuilding industry in this country to-day is that it is able to build ships in halves, move them away and then bring them together again? Would not that be a "part" in the meaning of this clause?
§ LORD MANCROFTI think the noble Lord, Lord Crook, has the right answer. My noble friend, Lord Simon, has said that he does not understand how a claim can arise in respect of a part of a ship. I am informed that it does not infrequently happen that a large ship is launched in two parts which will be subsequently joined together. Alternatively, new parts of damaged ships may be launched on their own. One has seen pictures of such new parts being sailed out to meet the old parts. As for the difficulty my noble friend feels of ascertaining the tonnage of a part of a ship, I am given to understand that this can quite readily be done by a certificate issued by the Surveyor-General of Ships which is provided for in Section 503 (2) (6) of the Act of 1894 which will be applied by Clause 4 (3) of the Bill. My noble friend knows more about this than I do, but I understand that that is the answer to the problem that is worrying him.
§ On Question, Amendment agreed to.
§ LORD MANCROFT moved, after Clause 1 to insert the following new clause:
§ Release of ship, etc.
§ "5.—(1) Where a ship or other property is arrested in connection with a claim which appears to the court to be founded on a liability to which a limit is set by section five hundred and three of the Merchant Shipping Act, 1894, or security is given to prevent or obtain release from such an arrest, the court may, and in the circumstances mentioned in subsection (3) of this section shall, order the release of the ship, property or security, if the conditions specified in subsection (2) of this section are satisfied; but where the release is ordered the person on whose application it is ordered shall be deemed to have submitted to the jurisdiction of the court to adjudicate on the claim (or, in Scotland, to have prorogated that jurisdiction).
§ (2) The said conditions are—
- (a) that security which in the opinion of the court is satisfactory (in this section referred to as "guarantee") has previously been given, whether in the United Kingdom or elsewhere, in respect of the said liability or any other liability incurred on the same occasion and the court is satisfied that, if the claim is established, the amount for
430 which the guarantee was given or such part thereof as corresponds to the claim will be actually available to the claimant; and - (b) that either the guarantee is for an amount not less than the said limit or further security is given which, together with the guarantee, is for an amount not less than that limit.
§ (3) The circumstances mentioned in subsection (1) of this section are—
- (a) that the guarantee was given in a Convention country;
- (b) that the relevant port or, as the case may be, one of the relevant ports, is in the country in which the guarantee was given.
§ (4) For the purposes of this section,—
- (a) a guarantee given by the giving of security in more than one country shall be deemed to have been given in the country in which security was last given;
- (b) any question whether the amount of any security is (either by itself or together with any other amount) not less than any limit set by section five hundred and three of the Merchant Shipping Act, 1894, shall be decided as at the time at which the security is given.
§
(5) In this section—
Convention country" means any country in respect of which the Convention is in force (including any country to which the Convention extends by virtue of Article 14 thereof);
relevant port"—
the Convention" means the International Convention relating to the Limitation of the Liability of Owners of Seagoing Ships signed in Brussels on the tenth day of October, nineteen hundred and fifty-seven.
§ (6) If Her Majesty by Order in Council declares that any country specified in the Order is a Convention country within the meaning of this section, the Order shall, while in force, be conclusive evidence that the country is a Convention country; but any Order in Council under this section may be varied or revoked by a subsequent Order in Council.
§ (7) In the application of this section to Scotland the references to arrest shall be construed as referring to arrestment on the dependence of an action or in rem and for the references to release from arrest or to the ordering of such a release there shall be substituted references to the recall of an arrestment."
§ The noble Lord said: This Amendment applies to the release of ships. The new clause gives effect to Article 5 of the Convention, which provides for the release of ships which have been arrested or of security which has been given if 431 security up to the Convention limits has been given in another contracting State. The purpose is to prevent the arrest of ships or the giving of security on more than one occasion in respect of the same incident. The clause will apply only in those cases in which it appears to the court that the shipowner or other person is entitled to limit his liability; that is to say, the applicant for release will have to satisfy the court, at any rate with prima facie evidence, that the claim is one to which limitation applies and, in particular, that he himself has not been guilty of actual fault or privity. The weight of evidence which the court will require will be a matter for the court itself to decide, subject to any Rules of Court which may be made on the subject.
§ Some doubt has arisen, I understand, on the precise meaning of the words "relevant port" in subsection (5) of this clause; and, in particular, whether they mean actual port or intended port. There is the rather macabre point that if the victim of an accident is buried at sea there will be no "actual" port of disembarkation at all. I should like to get this as an agreed measure, and I would ask your Lordships to pass this Amendment, including subsection (5), and to allow me to consult with the interests concerned in order to see whether we cannot get a slightly clearer drafting of subsection (5) to meet the points which have been made, with which I have not yet had time to deal, but with which I should wish to deal. I beg to move.
§
Amendment moved—
After Clause 1, insert the said new clause.—(Lord Mancroft.)
§ LORD MERRIMANI should like to say a few words on this clause generally, and, in particular, in relation to the matter which the noble Lord, Lord Mancroft, mentioned a moment ago, of the determination of fault or privity. I have not put down an Amendment, and I am not suggesting that any is necessary, because I think the clause deals with the point about which I know those who advised the shipping community are worried. It arises in this way. As the noble Lord, Lord Mancroft, said, the right to limit applies only if fault or privity is negatived. It is well settled that it is for the shipowner to disprove that he has been in any way guilty of fault or privity which has been 432 the cause of the casualty. If I may be technical for a moment, the words "fault or privity" apply not only to negligence by his servants and that sort of thing, which may be the immediate cause of the casualty, but also to such things as sending to sea a vessel which is unseaworthy when her unseaworthiness has in fact been the cause of the casualty. That is only one example, but it is the best example of fault or privity, and that has to be disproved by the owner. I believe that point has been covered by the opening words of the clause. If I may, I will read them:
Where a ship or other property is arrested in connection with a claim which appears to the court to be founded on a liability to which a limit is set by section five hundred and three …"—I have just given your Lordships an outline of that section. In other words, the question of fault or privity is to be decided by the court.The point I wish to make is that it must be decided before any question of release arises at all. I think that is the effect of the new clause, but I should be glad to have it confirmed that that is the view of the Government on the subject. I mention this point only because, in the nature of things, the issue of fault or privity is likely to be a lengthy one. In certain cases it may be the key to the whole controversy, and there is no doubt that when questions of fault or privity arise they are apt to be fought hard and bitterly. Therefore, it must not be taken for granted that release under this Convention, which is embodied in this clause, is necessarily swift or automatic. That is the main point on this clause.
There is, however, another point which the noble Lord, Lord Mancroft, indicated, without dealing with it—it is with regard to the giving of the security under subsection (3). The Convention (if I may call your Lordships' attention to it) makes it obligatory, in Article V, for the court to release a ship which has been arrested if the prescribed guarantee is given in a port. I call it, for short, as it is called in the Bill, "the relevant port". It does not matter for my purposes whether the port is the port in which the accident happened, or whether it is the next port of call, to instance two of the things which are covered in the Bill by the definition, "the relevant port". For some reason which I do not understand, 433 the Bill, instead of saying that the guarantee must be given in the relevant port in order to cause the release to be mandatory, says that it may be given anywhere "in a Convention country". I, and others, see a danger to British shipping in this change from the Convention to the wording of the Bill.
It might arise in some such way as this. Suppose, for the sake of argument, that a British ship comes into collision in the Channel and makes for Southampton Water, and is then arrested by the foreign shipowner for his damages in the collision. Bail is usually given in this country in London. Then suppose that, instead of bail being given in Southampton, which is the next port of call in those circumstances, it is given in London; and the ship is released and goes off, we will say, to Le Havre, where some other claimant in connection with the same usually arrests her again. Our shipowner demands instant release on the ground that he has given sufficient guarantee. The French might well say, "That is all very well. You have given guarantee in accordance with the English Act of Parliament, but you have not given guarantee in accordance with the Convention. Therefore we are not obliged to release." I think that that is a serious danger which ought to be removed. It can be got rid of perfectly simply by making "the relevant port"—which at present, as the Bill is drafted, has no relevance at all, if I may be permitted to say so—the port at which the guarantee is to be given. Then the situation fits the Convention. I call attention to those points for clarification only, and I hope that I have made them sufficiently clear.
§ VISCOUNT SIMONMay I add one word to what the noble and learned Lord, Lord Merriman, has said on the subject of "the relevant port," because it seems to me that the noble Lord. Lord Mancroft, has undertaken to look into it. I want to put into your Lordships' minds one thought. If an accident occurs in which a ship is in collision and is sunk, and the owners of the cargo in the ship wish thereupon to sue, they will find that there is no "relevant port" at all. The ship has been sunk, so she makes no next port of call. The cargo is not discharged anywhere and, therefore, so far as I can see, there is no 434 "relevant port" of call. It was with that rather in mind that, in advance of the Sitting, I suggested to the noble Lord, Lord Mancroft, that possibly it might make more sense if the port of discharge were the port of intended discharge; that is, the port to which the bill of lading is made out, otherwise there may be many cases arising where there is no "relevant port."
§ LORD MANCROFTThe noble and learned Lord, Lord Merriman, has raised two important points here. I accept, of course, his first point. The release under Clause 5 will not be automatic. The court must be satisfied that there is no actual fault or privity. But with regard to the noble and learned Lord's second point, and also the point that my noble friend Lord Simon has addressed to your Lordships, may I ask them to let me have another look at these to see whether I can draft an Amendment to cover them? I think they are valid points and we must obviously look at them again.
On Question, Amendment agreed to.
§ 4.38 p.m.
§ LORD MANCROFT moved, after Clause 1 to insert the following new clause:
§ Restriction on enforcement after giving of security
§ "6.—(1) No judgment or decree for a claim founded on a liability to which a limit is set by section five hundred and three of the Merchant Shipping Act, 1894, shall be enforced, except so far as it is for costs or (in Scotland) expenses, if security for an amount not less than the said limit has been given, whether in the United Kingdom or elsewhere, in respect of the liability and the court is of opinion that the security is satisfactory and is satisfied that the amount for which it was given or such part thereof as corresponds to the claim will be actually available to the person in whose favour the judgment or decree was given or made.
§ (2) For the purpose of this section any question whether the amount of any security is not less than any limit set by section five hundred and three of the Merchant Shipping Act, 1894, shall be decided as at the time at which the security is given."
§ The noble Lord said: This Amendment is concerned with the restriction on enforcement after the giving of security. It restricts the enforcement of judgments except for costs, or in Scotland expenses, if security up to the limits of liability has been given in the United Kingdom or elsewhere and the court is of the opinion 435 that the security is satisfactory and is satisfied that the security, or such part as corresponds to the claim, will be actually available to the person in whose favour the judgment is given. The purpose of this new Amendment No. 5 is to give effect to Article 2 (4) of the Convention. I beg to move.
§
Amendment moved—
After Clause 1, insert the said new clause.—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ LORD MANCROFT moved, after Clause 1 to insert the following new clause:
§ Distribution of limitation fund
§ "7.—(1) In making any distribution in accordance with section five hundred and four of the Merchant Shipping Act, 1894, the court may, if it thinks fit, postpone the distribution of such part of the amount to be distributed as it deems appropriate having regard to any claims that may later be established before a court of any country outside the United Kingdom.
§ (2) No lien or other right in respect of any ship or property shall affect the proportions in which under the said section five hundred and four any amount is distributed amongst several claimants."
§ The noble Lord said: This Amendment introduces a new Clause 7, dealing with the distribution of the limitation fund. I think there are only two brief points to which I need draw your Lordships' attention. Subsection (1) empowers the court to postpone the distribution of the limitation fund under Section 504 of the Merchant Shipping Act, 1894, or of such part thereof as it deems appropriate, having regard to any claims that may later be established before a court of any country outside the United Kingdom. It thereby removes the doubt which has hitherto existed whether a court has power to take account of contingent claims abroad. Subsection (2) gives effect to Article 3 (2) of the Convention by providing that the limitation fund shall be distributed among the claimants in proportion to the amounts of their established claims without regard to liens or other rights in respect of any ship or property. Those are the two points that arise. I beg to move.
§
Amendment moved—
After Clause 1 insert the said new clause.—(Lord Mancroft.)
§ On Question, Amendment agreed to.
436§ LORD MANCROFTThese are only minor and consequential Amendments and repeals. I beg to move.
§
Amendment moved—
After Clause 1 insert the following new clause:
§ Minor and consequential amendments and repeals
§ "8.—(1) In section five hundred and two of the Merchant Shipping Act, 1894, the word "sea-going" shall be omitted.
§
(2) For subsection (3) of section five hundred and three of the Merchant Shipping Act, 1894, there shall be substituted the following subsection—
(3) The limits set by this section to the liabilities mentioned therein shall apply to the aggregate of such liabilities which are incurred on any distinct occasion, and shall so apply in respect of each distinct occasion without regard to any liability incurred on another occasion.
§ (3) In section five hundred and four of the Merchant Shipping Act, 1894, for the words "in respect of loss of life, personal injury or loss of or damage to vessels or goods" there shall be substituted the words "in respect of any occurrence in respect of which his liability is limited under section five hundred and three of this Act".
§ (4) In Part VIII of the Merchant Shipping Act, 1894, the expression "owner" shall be construed as including, where it occurs in section five hundred and two, every person whose liability is excluded by section three of this Act, and elsewhere, except in the second place where it occurs in section five hundred and five, every person whose liability is limited by that section.
§
(5) In section five of the Crown Proceedings Act, 1947, the following shall be substituted for paragraph (a) of subsection (6)—
(a) any structure to which Part VIII of that Act is applied by section four of the Merchant Shipping (Liability of Shipowners and Others) Act, 1958; and
and in subsection (8) for the reference to the Merchant Shipping (Liability of Shipowners) Act, 1898, there shall be substituted a reference to sections three and four of this Act.
§ (6) The enactments mentioned in the Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule."—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ LORD MANCROFT moved, after Clause 1 to insert the following new clause:
§ Saving for occurrences taking place before commencement
§ "9. Nothing in this Act applies in relation to any liability arising from an occurrence which took place before the commencement of this Act."
437§ The noble Lord said: This clause provides that nothing in the Act shall apply in relation to any liability arising from an occurrence which takes place before the commencement of the Act. There is no provision in the Bill for its coming into force; and it will accordingly come into force when it receives the Royal Assent, apart from the provision relating to the costs of wreck removal, to which I referred in dealing with Clause 2 (5). I beg to move.
§
Amendment moved—
After Clause 1, insert the said new clause.—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ LORD MANCROFTThis clause extends the Bill to Northern Ireland, with consequential adaptations. I beg to move.
§
Amendment moved—
After Clause 1, insert the following new clause:
§ Provisions as to Northern Ireland
§ ("10.—(1) This Act extends to Northern Ireland.
§ (2) In the application of this Act to Northern Ireland the reference in section eight to the Crown Proceedings Act, 1947, is a reference to that Act as it applies in Northern Ireland.
§ (3) For the purposes of section six of the Government of Ireland Act, 1920 (which relates to the powers of the Parliament of Northern Ireland to make laws), this Act shall be deemed to have been passed before the day appointed for the purposes of that section.")—(Lord Mancroft.)
§ On Question, Amendment agreed to.
| "SCHEDULE ENACTMENTS REPEALED | ||
| Session and Chapter | Short Title | Extent of Repeal |
| 57 & 58 Vict. c.60 | The Merchant Shipping Act, 1894… | In section five hundred and two, the word "sea-going". |
| Section five hundred and eight. | ||
| 61 & 62 Vict. c.14 | The Merchant Shipping (Liability of Shipowners) Act, 1898. | The whole Act. |
| 63 & 64 Vict. c.32 | The Merchant Shipping (Liability of Shipowners and Others) Act, 1900. | Section one. |
| 6 Edw. 7. c. 48 | The Merchant Shipping Act, 1906— | Sections seventy and seventy-one. |
| 11 & 12 Geo. 5. c.28 | The Merchant Shipping Act, 1921… | Subsection (2) of section one." |
§ —(Lord Mancroft.)
§ On Question, Amendment agreed to.
438§ LORD MANCROFTThis clause is the usual clause for application to British possessions. I beg to move.
§
Amendment moved—
After Clause 1, insert the following new clause:
§ Application to British possessions, etc.
§ "11.—(1) Her Majesty may by Order in Council direct that the provisions of this Act, and (so far as they do not so extend apart from the Order) the existing limitation enactments, shall extend, with such exceptions, adaptations and modifications as may be specified in the Order, to—
- (a) the Isle of Man;
- (b) any of the Channel Islands;
- (c) any colony, or any country or place outside Her Majesty's dominions in which for the time being Her Majesty has jurisdiction, or any territory consisting partly of one or more colonies and partly of one or more such countries or places.
§ (2) In this section "the existing limitation enactments" means Part VIII of the Merchant Shipping Act, 1894, section two of the Merchant Shipping (Liability of Shipowners and Others) Act, 1900, and any incidental or supplementary provisions of any enactment applying the said Part or section."—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ Clause 2 agreed to.
§ LORD MANCROFTThis is merely the Schedule. I beg to move.
§
Amendment moved—
After Clause 2, insert the following Schedule:
§ The Title:
§ LORD MANCROFTThis Amendment is necessary so as to enlarge the Title of the Bill to embrace the rather comprehensive series of Amendments we have been discussing, for your Lordships' kind approval of which I am very grateful. I beg to move.
§
Amendment moved—
In the Title, line 1, leave out from "to" to the second "and" in line 2 and insert (" amend Part VIII of the Merchant Shipping Act, 1894, and section two of the Merchant Shipping (Liability of Shipowners and Others Act, 1900.").—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ House resumed.