“Chapter I. - The Right of limitation Article 1. Persons entitled to limit liability 1. Shipowners and salvors, as hereinafter defined, may limit their liability in accordance with the rules of this Convention for claims set out in Article 2. 2. The term shipowner shall mean the owner, charterer, manager and operator of a sea-going ship. … 4. If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner or salvor is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention. 5. In this Convention the liability of a shipowner shall include liability in an action brought against the vessel herself. … Article 2. Claims subject to limitation 1. Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability: (a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connection with the operation of the ship or with salvage operations, and consequential loss resulting therefrom; … (c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship or salvage operations…. Chapter II – Limits of Liability Article. 10. Limitation of liability without constitution of a limitation fund 1. Limitation of liability may be invoked notwithstanding that a limitation fund as mentioned in Article 11 has not been constituted. However, a State Party may provide in its national law that, where an action is brought in its courts to enforce a claim subject to limitation, a person liable may only invoke the right to limit liability if a limitation fund has been constituted in accordance with the provisions of this Convention or is constituted when the right to limit liability is invoked…. Chapter III. - The limitation fund Article 11. Constitution of the fund 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”
“…Splitt Chartering is liable as shipowner for damage caused through fault or negligence in their service by the master, crew members, pilot or others, who carry out work in the service of the ship, cf. The Danish Merchant Shipping Act, section 151.”
“The First to Fourth Claimants, as Owners, Charterers, managers and operators (respectively) of the unpowered barge "STEMA BARGE II" (registered at San Lorenzo) claim to have their liability (if any) in respect of loss of or damage to property (including but not limited to m/v "SAGA SKY" and Interconnector France-Angleterre 1), and any consequent loss, resulting from the drifting and/or dragging of anchor of "STEMA BARGE II" on20 November 2016 and/or any consequent collisions and/or allisions, limited pursuant tosection 185 of the Merchant Shipping Act 1995 , and claim a declaration to the same effect.”
“The judgment at [78] and [79] seems to assume that if Stema UK is not an operator or manager in its own right, it or its employees, would not be able to rely on Article 1(4) of the Limitation Convention if they are ultimately found to have caused the damage to the cable. Again, it might be useful for the Court considering the appeal to receive submissions on the application of Article 1(4) given the concern that if Stema UK is not an operator or manager, RTE will be able to pursue their claim for damages in full rather than subject to the Convention.”
“The effect of the Court of Appeal’s decision is that none of Stema UK or the Master or Crew are entitled to limitation, whether directly under Article 1(2) or indirectly under Article 1(4)”
“an order declaring the rights of the parties must in its nature be a final order after a hearing when the court is in a position to declare what the rights of the parties are, and such an order must necessarily then be res judicata and bind the parties for ever, subject only, of course, to a right of appeal. … [a final declaration] finally determines and declares the rights of the parties: it is not open to further review except on appeal.”
“ I looked at a transcript of the judgment of Danckwerts J . . . . Having done so I am quite unable to ascertain the precise circumstances under which this partnership action became converted into something else, but converted into something else it certainly was, and the order [of Danckwerts J . ] certainly is not such an order as would normally be made in a partnership action ." ) resulted in a declaration of trust. The Court held that where the wording of a declaration/order is clear, that order means what it says, and no argument by reference to the pleadings and arguments etc. leading to that order to the effect that it means something different is permissible. In particular Romer LJ remarked at 897: “Inasmuch as the defendant never appealed against the order of Danckwerts J. which was made on January 26, 1954, it is clear that he is bound by the provisions of that order, whatever those provisions might be. […] It is only if the order is open to some other construction, that it is ambiguous in its terms, that it appears to me to admit of the argument which Mr. Shelley addressed to us, […] In my opinion, there is no such ambiguity as to render that argument permissible.”
“28. The plain and unavoidable fact is, however, that the judge made a declaration in Mr Gibson's favour that he was eligible to be considered for appointment to both posts. One can understand the attraction of the solution suggested by the Court of Appeal to the conundrum presented by the making of a declaration which did not reflect the true situation. […] But the Board has concluded that this reconciliation is simply not legally possible. The judge's order decreed that the appellant was eligible to be appointed, not that his eligibility was to be determined according to the standards as to eligibility that prevailed from time to time. 29. The declaration that Mr Gibson was eligible for appointment imposed a legal obligation on PSC to treat him as such. It did not do so. Instead it proceeded to make appointments to both posts without considering the appellant. That was a course that simply was not open to PSC. Mr Gibson is therefore entitled to a declaration that he was entitled to be considered for appointment to both posts, not because he had any legitimate expectation of being considered eligible but because he had an order of a competent court which pronounced that he was eligible.”
“13. …the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the court made it, so far as these circumstances were before the court and patent to the parties. The reasons for making the order which are given by the court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the court considered to be the issue which its order was supposed to resolve. 16. Of course, it does not follow from the fact that a judgment is admissible to construe an order, that it will necessarily be of much assistance. There is a world of difference between using a court’s reasons to interpret the language of its order, and using it to contradict that language. The point may be illustrated by the decision of the Court of Appeal in England in Gordon v. Gonda[1955] 1 WLR 885 , where an attempt was made to contradict what the Court regarded as the inescapable meaning of an order, by arguing that the circumstances described in the judgment could not have justified an order which meant what it clearly said. Therefore, it was said, the judge must have meant something else. The answer to this was that any inconsistency between the circumstances of the case or the reasoning of the Court and the resultant order was properly a matter for appeal. A very similar argument was rejected by the Board for the same reason in Winston Gibson v Public Service Commission[2011] UKPC 24 . Decisions such as these (and there are others) are not authority for the proposition that a Court’s reasons are inadmissible to construe its order. They only show that the answer depends on the construction of the order and that the reasons given in the Judgment may or may not make any difference to that. 17. These considerations apply generally to the construction of judicial orders.”
“Cause of action estoppels can arise whenever a substantive claim is granted or refused even if the claimant has no cause of action in the traditional sense… Because the bar created by a cause of action estoppel is absolute, it is not to be given an expansive operation lest it occasion injustice .” ii. The judgment of Clarke J in Caltex Singapore Pte and others v B.P. Shipping Ltd[1996] 1 Lloyd’s Rep 286 at 293-4 which describes the claim as a procedural one. That decision was endorsed thus by Longmore J in The Happy Fellow[1997] 1 Lloyd’s Rep 130 at 133: “I respectfully agree with Mr Justice Clarke that a shipowner’s right to limit (at any rate in a multiparty case) does not attach to or qualify the substantive right of the claimant but, rather, limits the extent to which that right can be enforced against a particular fund.” iii. Test Claimants in theFII Group Litigation v Revenue and Customs Commissioners[2022] AC 1 where Lord Reed PSC and Lord Hodge DPSC held (and with whom, on this point, Lord Lloyd-Jones, Lord Hamblen, Lord Briggs, Lord Sales and Lord Carnwath JJSC agreed) held that: “… it is clear that cause of action estoppel operates only to prevent the raising of points which were essential to the existence or non-existence of a cause of action”
“Those concessions relate to the defence of limitation. The effect of limitation is to render an otherwise valid claim unenforceable to the extent that the claim relates to periods beyond the period of limitation. The concessions had and have no bearing on the existence or non-existence of the cause of action which is a claim for restitution based on the payment of tax which was paid under a mistaken understanding of the relevant law. The revenue therefore are not barred from their challenge by cause of action estoppel.”
“Once I have reached the conclusion that a shipowner’s right to limit does not attach to or qualify the claimant’s claim but operates to limit the extent to which an unqualified right can be enforced against the limitation fund, it must, to my mind, follow that the French [collision] proceedings do not ‘involve’ the same cause of action as the English [limitation] proceedings.”
“It is settled law in this country, and under the 1957 Convention as well as the Judgments Convention, that the right of shipowners to claim that their liability is limited is a right which appertains to them and which they and they alone are entitled to invoke by proceedings, as discussed hereafter.”
“It is necessary to stress that this limitation action is ‘against’ more than one defendant. The cause of action is not the same as that which gives rise to liability. If the limitation action were contested the only issues would be (1) whether the owners (which includes demise charterers) were guilty of actual fault or were privy to the negligence which caused the damage, and (2) the amount of the limitation fund.”
“But a failure to counterclaim. does not preclude a defendant from afterwards seeking by an independent action the relief which it was open to him to seek by way of counterclaim. The statute gives no defence; at best it limits damages. But the foundation of the relief, administered, first in Chancery and afterwards in admiralty, is the provision on the part of the shipowner of the fund representing his maximum liability. The court then administers the fund brought into court by the shipowner. The court ascertains the claims upon it, marshals them and distributes the fund ratably among the claimants. In principle the title to relief of such a nature is a substantive right enforceable by independent proceedings. It is more than one of the conditions affecting the amount of the loss or damage to be awarded in the collision action. A limitation decree operates upon claims that have passed into judgment as well as upon those that rest upon the original cause of action…”
“The scope of cause of action estoppel is demonstrated by the decision of the House of Lords in Republic of India v India Steamship Co Ltd[1993] AC 410 …. ‘…it is necessary to identify the relevant breach of contract; and if it transpires that the cause of action in the first action is a breach of contract which is the same breach of contract which constitutes the cause of action in the second, then the principle of res judicata applies, and the plaintiff cannot escape from the conclusion by pleading in the second action particulars of damage which were not pleaded in the first.’ … It follows, therefore, in my judgment that where a single factual incident is alleged to amount to a breach of contract, and an action proceeds to judgment on that basis, it cannot be alleged in subsequent proceedings that the same incident amounted to a breach of a different obligation under the same contract. The judgment is res judicata as regards all causes of action for breach of the contract.”
“The rule in Henderson extends the res judicata principle in two respects: the rule applies, not to matters which were decided by a court, but to matters which might have been decided but were not; the rule applies not just to subsequent litigation between the same parties or their privies, but also to parties to the subsequent proceedings who were not joined as parties to the earlier proceedings.”
“[30] Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. … It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter. It might have enquired whether the action against excess underwriters could have been expedited. Whatever might have happened in this case is a matter of speculation. [31] However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seized of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future.”
“in ongoing litigation, a party who realises that he may have connected claims which are not currently pleaded must follow the Aldi guidelines, and at least raise with the court the existence of such new claims. A breach of those guidelines will give rise to a “high risk” that the second action will be found to be an abuse of process … and will always be a relevant factor to be taken into account in any application to strike out … However, a breach of the Aldi guidelines does not automatically mean that the second action is an abuse of process and will be struck out. The Aldi guidelines are simply one facet of the broad merits-based evaluation.”
“this is all about practicality … it’s not actually about the construction of 1(4), it’s the practicality of how it works in this case in particular. It might work quite differently in other cases and probably does.”
“If the Article 1(4) limitation issue were heard before the determination of liability, the most that it could produce in terms of declaratory relief would be a declaration that Stema UK is entitled to limit if the damage to the cables was caused by “x”, but not entitled to limit if the damage to the cables was caused by “y”
“Stema Shipping (UK) Ltd, and its employed Managing Director, Superintendents, Barge Masters and crew-members, were persons for whose act, neglect or default (if any) the shipowner is responsible, within the meaning of Article 1(4) of the 1976 Convention.”
“a. Stema UK (and only Stema UK) is responsible for the actions of Mr Johansen in proposing an anchorage box for the operational convenience of Stema UK; b. Splitt/Stema A/S are responsible for the act, neglect or default of Stema UK to the extent that such act, neglect or default comes from the Superintendent, Barge Master and crewman in monitoring weather forecasts, not mobilising a stand-by tug, anchoring the Barge, and monitoring its position (in circumstances where it is alleged that the Barge dragged its anchor even prior to the storm).”