Seismic Shipping Inc & Anor v Total E & P UK Plc

On 2 October 2004, a purpose built seismic survey vessel called the WESTERN REGENT (“the vessel”) was operating in the North Sea towing six streamers each 3,600 metres long and with 100 metres separation between them. At about 0130 hours on that day two of the streamers came into contact with a marker buoy which was positioned at a well head in the Total Dunbar oilfield, located about 70 miles east of the Shetlands in the Scottish sector of the North Sea oilfields. As a result it is said that the buoy was dragged from its position and that the well head installation was damaged.

In this action the first and second claimants are the owners and demise charterers of the vessel respectively. They accept that the collision and any resulting damage was caused by the negligence of the demise charterers their servants or agents on board the vessel and accordingly admit liability to the defendant, which was the operator of the Dunbar field and the owner of the installation. This action was brought in order to obtain a decree limiting the liability of the claimants under the Merchant Shipping Act 1995 (“the 1995 Act”). When originally issued on 5 November 2004, the claim form named the defendants as Total E&P UK Plc (“Total”) and all other persons claiming or being entitled to claim damages by reason of the collision. However, it was appreciated that only Total has a claim arising out of the collision, with the result that the claim form was amended and before the judge the claimants pursued the limitation claim against Total as the sole defendant.

This appeal arises out of an order made on 22 March 2005 by Mr Julian Flaux QC, sitting as a Deputy High Court Judge in the Admiralty Court, in which he granted the limitation decree sought. No distinction was drawn between the claimants in the order or indeed in the argument in this appeal. For convenience I shall describe them together as “the owners”. In the same order the judge refused the owners’ application for an injunction restraining Total from continuing proceedings which it had begun against the owners in Texas. Both Total and the owners sought permission to appeal, which was refused by the judge but subsequently granted on paper by Longmore LJ. The neutral citation reference to the judge’s judgment is [2005] EWHC 460 (Comm) and it is reported at [2005] 2 All ER (Comm) 51. I will consider the issues under two heads, namely limitation of liability and injunction.

By the limitation decree it was ordered that the limit of the owners’ liability was 2,590,000 Special Drawing rights. The owners had paid a total of £2,150,000 into court on 10 February 2005. By letters dated the same day the owners’ solicitors, Holman Fenwick & Willan, stated that that sum represented both a payment into court inclusive of interest by way of an offer under CPR Part 36 and the constitution of the limitation fund. The decree stated that the relevant liability in pounds sterling was £2,089,383.67 together with simple interest of £43,118.58, from 2 October 2004 to 10 February 2005, making a total of £2,132,502.25.

The claim form was served on Total in England. Such service was permitted under the Civil Procedure Rules (“CPR”) because Total is an English registered company. It follows that the English court has personal jurisdiction over Total but Total submitted before the judge and submits before us that the court has no subject matter jurisdiction over it in the sense used by Hoffmann J in Mackinnon v Donaldson, Lufkin and Jenrette [1986] Ch 482 at 493. Total’s case is that the only circumstances in which a party in the position of a shipowner or demise charterer (such as the present claimants) can launch limitation proceedings is when underlying legal proceedings or arbitration proceedings have been instituted in this jurisdiction. The judge rejected that submission and the question for decision in this part of the appeal is whether or not he was correct to do so. The answer to the question depends upon the true construction of the Convention for Limitation of Liability for Maritime Claims 1976 (“the 1976 Convention”) as set out in Schedule 7 to the 1995 Act which (as so set out) has the force of law in the United Kingdom under section 185(1) of the Act.

Articles 10 to 14 of the 1976 Convention, as set out in Schedule 7 to the 1995 Act, provide as follows:

Limitation of liability may be invoked notwithstanding that a limitation fund as mentioned in Article 11 has not been constituted.

If limitation of liability is invoked without the constitution of a limitation fund, the provisions of Article 12 shall apply correspondingly.

Questions of procedure arising under the rules of this Article shall be decided in accordance with the national law of the State Party in which action is brought.

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.

A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority.

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.

Subject to the provisions of paragraphs 1 and 2 of Article 6 and of Article 7, the fund shall be distributed among the claimants in proportion to their established claims against the fund.

If, before the fund is distributed, the person liable, or his insurer, has settled a claim against the fund such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention.

As can be seen, the 1976 Convention is divided into chapters. Chapter I is entitled “The Right of Limitation” and contains Articles I to V, which cover “Persons entitled to limit liability”, “Claims subject to limitation”, “Claims excepted from limitation”, “Conduct barring limitation” and “Counterclaims” respectively. Thus Article 1 provides, so far as relevant:

In the 1976 Convention itself Article 10.1 contains a second sentence which is not reproduced in Schedule 7 to the 1995 Act. Article 10.1 provides:

Having served the claim form, the owners have (as stated above) pursued the limitation claim against Total alone. By their amended claim form they claimed to limit their liability and sought “all necessary and proper directions ... for the purposes of ascertaining the amount of the claimants’ said liability and for discharging the same by payment to the defendant”. The owners’ case, which was accepted by the judge, is simple. It is based on Article 10 of the 1976 Convention and runs as follows. Chapter I of the Convention confers a right on shipowners to limit their liability in a case of this kind. That is not in dispute. Article 10.1 gives shipowners a right to invoke limitation of liability without constituting a limitation fund. Article 10.3 provides that questions of procedure shall be decided in accordance with the lex fori which in this case is English law. The owners have brought proceedings in England in accordance with the provisions of the Supreme Court Act 1981 and CPR Part 61.

Section 20 of the Supreme Court Act 1981 (“the SCA 1981”) provides, so far as relevant, as follows:

The proceedings referred to in subsection (1)(b) are –

any action by shipowners or other persons under the Merchant Shipping Act 1995 for the limitation of the amount of their liability in connection with a ship or other property.

The preceding provisions of this section apply –

Total’s case is that that approach is too simplistic. Mr Teare relies upon Article 11 of the Convention. As the judge put it, the essential foundation of this argument is that the 1976 Convention is a jurisdictional convention which confers jurisdiction to commence a limitation claim only in circumstances where the claimant can constitute a limitation fund under Article 11.1. Since Article 11.1 contemplates the setting up of a fund only in a state in which legal proceedings have been instituted in respect of the claim which is the subject of limitation (i.e. one of the claims enumerated in Article 2) and since no such proceedings have been instituted in this jurisdiction by Total, it follows that the owners cannot bring a limitation claim under the 1995 Act. In short, he submits that neither the 1976 Convention nor the 1995 Act contemplates the possibility of a pre-emptive strike brought by shipowners before any proceedings have been brought by a person with a claim against them arising out of a particular incident.

Mr Teare submits that that approach is supported by the leading textbooks and by the analysis of Colman J in The ICL Vikraman [2003] EWHC 2320 (Comm) [2004] 1 Lloyd’s Rep 21 and reflects the policy underlying the 1976 Convention. In response Mr Meeson submits that the textbooks do not all speak with one voice and invites the court to prefer the reasoning of David Steel J in The Denise, unreported, 3 December 2004. We were also referred to the case of The Sherbro in Holland, to which the judge was not referred. As already indicated, the judge preferred the owners’ submissions to those advanced on behalf of Total.

It is common ground that under the law as it was before the 1976 Convention became part of United Kingdom law, when the relevant Convention was the International Convention Relating to the Limitation of the Liability of Owners of Sea-going Ships 1957 (“the 1957 Convention”) and the owners’ right to limit essentially remained that conferred by section 503 of the Merchant Shipping Act 1894 (as subsequently amended), a shipowner could commence limitation proceedings in England without any liability proceedings having been commenced against him or his ship in England. Mr Meeson submits that, in the absence of clear words, we should not readily infer that either the parties to the 1976 Convention or the draftsman of the 1995 Act intended any change in the position. There seems to me to be very limited force in this point since the regime of the 1976 Convention is in some ways very different from that of the 1957 Convention.

I consider first the wording of the 1976 Convention itself. It seems to me that the language of the Convention supports the claimants’ submissions and the conclusions of the judge. Articles 1 and 2 identify the persons entitled to limit liability and identify the claims which are subject to limitation. It is those articles which confer the right to limit on the owners in this case. That right can be invoked in two ways, either without constituting a limitation fund under Article 10 or after constituting such a fund under Article 11. The Convention distinguishes between those two different means of invoking limitation and treats them differently. Thus, for example, it is only where a limitation fund has been constituted that Article 13 applies to bar actions in the courts of other Contracting States.

There is no general jurisdiction provision in the Convention stating where the right of limitation must be invoked. It therefore appears to me that in principle the Convention permits a party to seek to limit its liability in any Contracting State which has personal jurisdiction over the defendant. Since there is no express restriction in the Convention restricting the invocation of the right to limit in any way, if there is such a restriction it must be implied in the Convention. To my mind there is nothing in the Convention to lead to the implication of such a restriction.

Neither Article 10 nor Article 11 contains such a restriction, either expressly or by necessary implication. Article 10, which (as stated above) is in Chapter II and not Chapter III of the Convention, contains a clear statement that limitation of liability may be invoked notwithstanding that a limitation fund has not been constituted. It thus appears on the face of the Convention that the shipowners’ right to limit is stated in Article 1.1 and that, by Article 10.1, the right to invoke that right to limit does not depend upon the constitution of a limitation fund. This seems to me to be entirely unsurprising because there may only be one claim arising out of a particular casualty.

Mr Meeson further relies upon the second sentence of Article 10.1 as it appears in the Convention but not in Schedule 7 to the 1995 Act. It will be recalled that the first sentence provides that limitation may be invoked notwithstanding that a limitation fund has not been constituted under Article 11 and adds:

I should note in this regard that it was suggested in the course of the argument that in Article 10.3 the reference to the national law of the State Party in which action is brought should be construed as if it read “such action is brought” and as a reference back to the second sentence of Article 10.1, so that it referred to the place where an action was brought to enforce a claim and thus in effect provided that a limitation action could be brought only in the courts of a state in which a claimant had brought an action. That is an ingenious suggestion but, for my part, I would not accept it. If it had been intended to provide, in a case in which no limitation fund had been constituted, that limitation could be invoked only in the courts of such a state, it would have been very easy so to provide.

Moreover, if “action is brought” in Article 10.3 is a reference back to the second sentence of Article 10.1, it only applies in cases where the relevant state provides that, where such an action is brought, a person liable may only invoke the right to limit liability if a limitation fund is constituted. It can have no application to a case like this where the relevant state, here the United Kingdom, has not so provided. As indicated earlier, it was no doubt because the United Kingdom had not so provided and was not so providing that the second sentence of Article 10.1 was not included in Schedule 7 to the 1995 Act.

Total relies upon Article 11 but, as I read Article 11, it simply confers a right upon a person invoking limitation to constitute the fund if he wishes. It does not require him to do so. It is true that Article 11 envisages the right of a person who wishes to constitute a limitation fund to doing so in a court or other competent authority “in any State Party in which legal proceedings are instituted in respect of claims subject to limitation”. Mr Teare submits (i) that that refers to a court in which legal proceedings have been instituted by a claimant and does not include limitation proceedings and (ii) that a limitation fund can be constituted only in such a court. I agree with Mr Teare that his submission (i) does seem a more natural construction than a construction which includes limitation proceedings in the expression “legal proceedings … in respect of claims subject to limitation”. On the other hand, I see the force of the point made by Mr Meeson that the expression should be construed as including any legal proceedings (and thus limitation proceedings) because it is a wider expression than the expression “action to enforce a claim subject to limitation” used by the draftsman in the second sentence of Article 10.1. As for as his submission (ii), it may be noted that Article 11.1 is framed in permissive terms, and does not include the word “only”. It is not necessary to resolve either of these issues in order to decide this appeal.

Even if Mr Teare’s construction is correct, it simply means that a fund can be constituted only in a jurisdiction in which a claimant against the limiting party has commenced proceedings. It does not follow that limitation cannot be invoked in any other Contracting State where no fund has been constituted. The right to invoke limitation in such a case is expressly conferred by Article 10.1 without any limitation or restriction and, by Article 10.3, questions of procedure shall be decided by the lex fori. Section 20 of the SCA 1981 and CPR 61.11 permit a limitation action to be brought and served on a person within the jurisdiction in such a case.

As the judge said in paragraph 22 of his judgment, neither the constitution of a limitation fund nor the ability to constitute a fund is a pre-condition to either the jurisdiction itself or the grant of a limitation decree, as is clear from the provisions of CPR Part 61.11. Rule 61.11(13)(a)(ii) provides:

In short, I can see nothing in the Convention which leads to the conclusion that the court does not have jurisdiction on the facts of this case. As Mr Meeson submits, what is required for Total’s argument to succeed is that the court is prohibited by the Convention from determining the owners’ claim to limit their liability to Total under the Convention in circumstances where the court has personal jurisdiction over Total. Like the judge, I would accept his submission that there is nothing in the language of the Convention, or indeed of the SCA 1981 or the CPR, which requires a person who wishes to limit his liability to wait until a claimant has started proceedings in England before invoking his right to limit. Mr Teare has not been able to point to any relevant wording or language to support his submission that the judge reached the wrong conclusion on jurisdiction.

I turn to the authorities. We have been referred to only two relevant or potentially relevant authorities in England. The first is The ICL Vikraman which is relied upon by Mr Teare and the second is The Denise. I consider first The Denise because it is directly in point. It was submitted in that case that the court lacked subject-matter jurisdiction on the basis that the process of seeking a decree would require the claimants to put up a limitation fund and that since there was at that stage no claim against the owners which would justify the creation of a fund under Article 11.1, there was no jurisdiction to entertain a claim for a decree. David Steel J rejected that contention as misconceived. He held that there is nothing in the jurisdiction of the Admiralty Court under the SCA 1981 or in the 1976 Convention which restricts an action for limitation to an action in which there already exists a claim against the shipowners in the same jurisdiction.

In paragraph 9 of his judgment he said this in relation to Article 10.1 of the Convention (in a passage quoted by the judge):

The judge accepted that reasoning of David Steel J and rejected the submission advanced before him on behalf of Total that the person seeking a limitation decree must always be able to constitute a fund if required to do so. He also distinguished the case of The ICL Vikraman, as indeed had David Steel J. In that case, as the judge observed in paragraph 9 of his judgment, Colman J had to decide whether to give permission to serve a limitation claim form on a defendant out of the jurisdiction under CPR Part 61.11(5)(c).

That rule provides:

I also agree with both the judge and David Steel J that Colman J was not considering the point which arises here and which arose in The Denise, namely whether the issue of limitation proceedings in the absence of existing proceedings against the shipowners was justified or permitted. It is, however, right to say that Colman J said in paragraph 49 of his judgment that a limitation fund could only be constituted in a state where the underlying proceedings had been instituted, rather than leaving it up to the shipowner to constitute a fund in a jurisdiction chosen by him. To that extent, I agree with the judge that, although his decision was not precisely in point, it could be said to provide some support for Total’s submission that the Convention does not permit the shipowner to make a pre-emptive limitation strike in a jurisdiction of his choice.

However, given that Colman J was not considering the question which arises here and given both the views of David Steel J and my own conclusions based on a consideration of the terms of the 1976 Convention, I am not persuaded that the reasoning in The ICL Vikraman is sufficient to lead to a different conclusion from that reached by the judge.

I should refer to the decision of the Dutch Supreme Court in The Sherbro, which was decided on 20 December 1996. The facts were that in December 1993 bags of pesticide were lost overboard in the English Channel. On 11 January 1994 cargo-owners started proceedings in Paris for the appointment of an expert. On 19 January some of the cargo was washed ashore on the Dutch coast and the Dutch State incurred clean up costs. On 20 January the Dutch State attached the vessel pursuant to permission granted by the court in Amsterdam. On 27 January the Paris court appointed an expert. On 18 February the owners of the vessel commenced proceedings to limit their liability in Dunkirk and on 22 February they constituted the limitation fund. Nearly a year later, on 13 January 1995, in reliance on Article 13 of the Convention, the owners sought the return of the security they had given to the Dutch State to secure the release of the vessel after her attachment pursuant to the permission of the court in Amsterdam.

At first instance it was held that the owners were not entitled to choose the forum in which to limit their liability and must await legal proceedings commenced by a claimant but it was also held that the application for the appointment of an expert was not a legal proceeding so that the owners’ application for the return of the security failed. The Advocate General wrote an opinion for the assistance of the Supreme Court. His view was that the purpose of Article 11 was to prevent the owners from choosing a forum in which to limit and to require them to await the initiative of a claimant. He was also of the view that the application to appoint an expert was a legal proceeding so that the owners were entitled to constitute a fund under the Convention and, as I understand it, that, having done so, were entitled to the release of the security. The Supreme Court took the same view and allowed the appeal.

The tenor of the decision does seem to me to provide some support for Total’s submissions. However, it was concerned with a case in which a fund had been constituted. It was not concerned in any way with Article 10 of the Convention. It did not therefore consider the main point in the instant case, namely whether the effect of Article 10.1 is to enable a limitation action to be commenced where no proceedings have been commenced by an injured party, on the basis that Article 10.1 expressly provides that limitation may be invoked without the constitution of a limitation fund and the Convention provides no restriction on that right by reference to such proceedings. In these circumstances, I am not persuaded by the decision or reasons given in The Sherbro to hold that the judge was wrong.

We were referred both to some of the travaux préparatoires and to a number of textbooks and other writings, to which I should refer. However, I do not think that any of them is sufficiently persuasive to lead to any conclusion other than that set out above. As to the travaux préparatoires, I agree with the judge that they are essentially neutral since the delegates do not appear to have had in mind the point which arises here, which is in essence whether the ability to constitute a limitation fund is a pre-condition or prerequisite to the bringing of a limitation claim.

As to the textbooks and other writings, for the most part the specific point is not addressed. Total relies on Griggs & Williams on Limitation of Liability for Maritime Claims 3^rd edition, where at page 50 the authors consider Article 11 of the 1976 Convention. They say, of Article 11.1

In addition Mr Meeson relies upon some earlier passages. The authors say in their introduction to Articles 10 to 14 (on page 45) that by express reservation and by implication much is left to the individual State Parties to arrange themselves. They say in their commentary on Article 10 (on page 46) that limitation may be invoked without the constitution of a fund and that the implication from the omission of the second sentence of Article 10.1 from Schedule 7 to the 1995 Act is that the United Kingdom does not intend to place restrictions on a person’s right to invoke limitation without constitution of a fund.

Total relies upon part of paragraph 8.77 of the 3^rd edition of Meeson on Admiralty Jurisdiction and Practice, which reads in full as follows:

We were also referred to Marsden on Collisions at Sea, 13^th edition 2003, at paragraphs 16.16 and 16.18. However, the editors refer to both a broad view and a narrow view and do not resolve the present issue. Finally we were referred to an article by Professor Berlingieri in [1993] LMCLQ 433 at page 434 and to Jackson on Enforcement of Maritime Claims, 3^rd edition 2000, at paragraphs 24.39 and 24.40. Professor Berlingieri suggests that Article 10.1 should be construed by analogy with Article 11.1, which provides some support for Total’s argument. On the other hand, Professor Jackson says that that view seems contrary to the Convention and that a limitation action can be brought in any jurisdiction unless, which is not the case in the United Kingdom, the State Party has expressly provided, as permitted by the second sentence of Article 10.1, that limitation may be invoked only where a fund has been constituted in a jurisdiction where a claim has been made.

Thus Professor Jackson says in paragraph 24.40:

As to the policy, I do not see that the judge’s conclusion is in any way inconsistent with the general approach of the English courts or with the policy of the Convention. There was a time when negative declarations were somewhat frowned upon by the English courts. Although of course everything depends upon the circumstances, that is not now the case. Encouraged by the approach of the European Court of Justice in cases like The Maciej Rataj [1995] 1 Lloyd’s Rep 302, the English courts do not now discourage negative declarations as once they did. So for example in Messier-Dowty v Sabena [2000] 1 WLR 2040 Lord Woolf MR said at paragraph 36:

In the particular context of limitation of liability Rix J said this in Caspian Basin v Bouygues (No 4) [1997] 2 Lloyd’s Rep 507 at 525, in a passage quoted by the judge:

It may perhaps be said in response that Article 11.1 suggests that it is for the claimant to choose the forum for its claim and for the owners to constitute a fund and invoke limitation in that jurisdiction. I have already given my reasons for not accepting that submission. It does not in any event reflect the common position where there are many claimants arising out of a single casualty who start liability proceedings in many different jurisdictions, some of which may be Convention jurisdictions. In such a case, even on Total’s argument, the owners can start limitation proceedings and constitute a fund under the Convention in any such jurisdiction.

For these reasons I would hold that the judge was correct to hold that the English court has jurisdiction to entertain the owners’ claim, essentially for the reasons he gave. In these circumstances it is not necessary to consider other possible bases of jurisdiction. I would dismiss Total’s appeal. It follows that the owners were entitled to summary judgment and that the restricted limitation decree granted by the judge must stand.

The owners submitted to the judge that, having granted a limitation decree, proceedings in Texas designed to obtain judgment for more than the limited amount decreed was unconscionable and he should grant an injunction to restrain the further conduct of those proceedings. The judge refused to grant an injunction and the question in this part of the appeal is whether he should have done so.

The judge summarised the relevant principles in paragraph 29 of his judgment by reference to Andrew Smith J’s summary of them, which was approved by this court, in Royal Bank of Canada v Centrale Raiffeisen-Boerenleenbank [2004] 1 Lloyd’s Rep 471. They are set out in paragraph 8 of the judgment of Evans-Lombe J in this court:

That seems to me to be a correct summary of the principles which have been developed to assist the court to decide how to decide whether to grant an anti-suit injunction to restrain foreign process in the exercise of the power conferred on the court under section 27 of the SCA 1981 to grant an injunction “in all cases in which it appears to the court to be just and convenient to do so. As the judge put it in paragraph 30 of his judgment, the essential touchstone is whether there has been unconscionable conduct or the threat of unconscionable conduct.

I agree with the judge that it is important to have in mind that this is not a case in which, in commencing or continuing proceedings in Texas, Total is in breach of contract. Many of the cases involve proceedings in breach of English exclusive jurisdiction clauses or arbitration clauses. This is not such a case. The question is simply whether, in continuing to proceed in Texas after this court has granted a decree limiting the owners’ liability to it under a Convention which has the force of law in England, Total is acting unconscionably so that the Texas proceedings are vexatious and oppressive.

The judge answered that question in the negative and so would I. In any event he did not misdirect himself in any way in principle and he reached a conclusion which cannot fairly be described as plainly wrong or outside the ordinary ambit of a judge’s discretion in a case of this kind.

Mr Meeson submits that, by continuing with the proceedings in Texas, Total is (as the judge described the argument) flouting the English court and its judgment so that the court should grant an injunction to ensure that its judgment is not undermined. The judge rejected that submission and so would I. The purpose of an injunction is not to ensure that an English judgment is recognised by a friendly foreign state but to prevent unconscionable conduct.

As I understand it, the proceedings in Texas have been stayed by order of the court dated 7 April 2005 pending a final decision at appellate level here. It is plain from the terms in which that order is framed that Judge Kent has all the circumstances of the case in mind. Thus he said:

The question is whether this court should leave the Texas court to consider what steps to take in the light of the decree in this action or whether it should restrain Total from proceeding further in Texas on the ground that such further process would be unconscionable. The authorities show that considerations of comity play an important part in the decision whether or not to grant an anti-suit injunction. That has been emphasised recently: see the decisions of the House of Lords and of the European Court of Justice in Turner v Grovit [2002] 1 WLR 107 at 119-120 and [2005] 1 AC 101 at 113 respectively. Thus I would accept Mr Teare’s submission that the English court should not interfere, albeit indirectly, with the process of the Texas court and the right of the Texas court to decide in accordance with its own laws whether or not to recognise and enforce the English limitation decree: see e.g. Akai Pty Ltd People’s Insurance Co Ltd. [1998] 1 Lloyd’s Rep 90 at 108.

I reach that conclusion partly because of the nature of a limitation decree. The 1976 Convention is but one of the forms of international limitation convention. Another is, for example, the 1957 Convention, which this court has held (disagreeing with my own view) is entitled to as much international recognition as the 1976 Convention: see The Herceg Novi [1998] 2 Lloyd’s Rep 454. The United States approaches limitation in a different way. In these circumstances it is not, in my judgment, possible to say that liability proceedings in the United States or in a 1957 Convention state are unconscionable. The proper course is in my opinion to refuse to grant an injunction restraining such proceedings and leave it to the foreign court to decide whether to recognise and/or enforce the English limitation decree.

I adhere to the view I expressed at first instance in Caltex Singapore Pte Ltd v BP Shipping Ltd [1996] 1 Lloyd’s Rep 286 at 203-4:

I should add in this connection that, although the order of the judge directed the claimants to pay the amount of the decree to Total, he did not (as I understand it) do so at Total’s request, and the fact that they have in fact done so does not seem to me to be relevant to the question whether an anti-suit injunction should be granted.

Mr Meeson submits that Total’s cause of action has merged in the judgment and order given and made by the judge, that its effect is that the claimants are entitled to recover the amount of the limit and no more and that the distinction between procedure and substance has no further relevance in the light of the judgment. He relies for example upon The Sennar [1985] 1 WLR 490. Let it be supposed that, for the reasons given by Mr Meeson, in England Total could not enforce a judgment for a larger amount obtained against the owners in Texas, it does not seem to me to follow that the court should restrain Total from proceeding against the owners in Texas. As stated earlier, it seems to me to be a matter for the Texas court whether to recognise the English decree. Once that is accepted, there is no basis upon which this court could properly hold that proceedings in Texas are unconscionable.

It might be asked rhetorically: why should the English court restrain Total from advancing a claim available to them in Texas under the relevant laws of Texas? It does not seem to me to be a sufficient answer to say that it is because of the English limitation decree and the fact that the English court has both personal and subject matter jurisdiction under English law. The action in Texas was not unconscionable before the decree. Total did not bring its claim in England and has not sought judgment in England. It does not seem to me that the owners’ admission of liability together with the limitation decree can make the proceedings in Texas unconscionable. This is not to my mind a case such as that considered in The Carron Iron Company Proprietors v Maclaren (1855) V HLC 416.

In all the circumstances I have reached the conclusion that the judge was right to refuse to grant an anti-suit injunction at a stage when the Texas court has yet to decide what effect, if any, the judgment and decree of this court on limitation has on the Texas proceedings. It is not unconscionable for Total to proceed with its claim in Texas. I would therefore dismiss the owners’ appeal.

For the reason which I have given I would dismiss both Total’s appeal against the refusal of the judge to hold that the Admiralty Court had no jurisdiction to grant a limitation decree and the owners’ appeal against the judge’s refusal to grant an anti-suit injunction.

I agree with Lord Justice Clarke that both appeals should be dismissed for the reasons set out in his judgment. Since we are concerned with an international convention and with issues of international comity, I will seek to state the essence of the matter in a few words of my own.

On the question of limitation of liability, the issue is one of jurisdiction. Total submits that even though there is in personam jurisdiction against it in England, for it is an English registered company, the owners lack subject-matter jurisdiction under the 1995 Act, incorporating as it does the 1976 Convention. As a result, Total says, the owners are unable to invoke limitation of liability under the 1976 Convention or to obtain the limitation decree sought. They could only do so if they had been sued, which they have not, by Total in England. The issue arises in circumstances where the owners have not constituted a limitation fund. Total accepts that the owners are not bound to constitute such a fund, but that the position is no different from that which would have obtained if the owners had been seeking to constitute a fund. In either event, the owners could only invoke limitation in response to a claim brought by Total.

The essence of Total’s argument depends on an analogy to be drawn from the situation where the owners might have sought to constitute a fund. In such a case, article 11 of the 1976 Convention applies. Total submits, in reliance on article 11, that its effect is to permit a party invoking limitation to do so only in the courts of a state party and only in response to a claim subject to limitation. For these purposes Total relies on the first sentence of article 11.1, which states that –

The difficulties with this submission, in my judgment, are as follows. First, article 11 does not appear to be concerned with jurisdiction. Indeed, jurisdiction does not appear to be expressly addressed in any of the articles of the 1976 Convention. On the contrary, all questions of procedure are expressly left to the national law of the state parties (articles 10.3 and 14). Secondly, article 11 does not contain the word “only”. In form it is permissive. This may be contrasted with the second sentence of article 10.1 (“a State Party may provide in its national law that…a person liable may only invoke the right to limit liability if a limitation fund has been constituted…”, emphasis added). I recognise that because the barring effect of article 13 depends on a limitation fund having been “constituted in accordance with Article 11”, the effect of article 11, permissive as it is, may still be that in order to obtain the effects which the Convention grants in consequence of the constitution of such a fund, a party invoking limitation must bring itself within the permissive scope of article 11. That is another question, however. Thirdly, the existence of the option contained in article 10.1 – which the UK has not adopted, hence the omission of the second sentence of article 10.1 from schedule 7 to the 1995 Act – breaks or at least seriously weakens the argument by way of analogy from article 11. If a state party has an option whether or not to restrict the circumstances in which a right to limit is invoked in the absence of the constitution of a limitation fund, that strongly suggests that it is not possible to argue by way of analogy from the circumstances which prevail under the Convention for the situation where a fund is established. Fourthly, there is in any event an unresolved debate as to whether the language of article 11.1 (“legal proceedings…in respect of claims subject to limitation”) is restricted to legal proceedings against the party invoking limitation, or may include legal proceedings brought by the party invoking limitation. Lord Justice Clarke has pointed out that the expression used by the Convention is wider than the expression “action to enforce a claim subject to limitation” used in the second sentence of article 10.1.

Fifthly, article 10, and not article 11, is in any event the article which deals with limitation of liability without constitution of a limitation fund, and there is nothing in that article expressly to restrict the circumstances in which limitation may be invoked to those where legal proceedings have first been invoked by a claimant against a party who may wish to limit liability. While it is true that the second sentence of article 10.1 (omitted from the 1995 Act) speaks of “where an action is brought in its Courts to enforce a claim subject to limitation” and that article 10.3 refers to the national law of the state party “where action is brought”, article 10.3 does not refer to “such action” in order to suggest that the purview of the article is restricted in scope. Moreover, article 10.3 could not even sensibly refer to “such action” in circumstances where the second sentence of article 10.1 is omitted. Especially against the background where limitation actions commenced by the party seeking limitation were familiar prior to the making of the 1976 Convention, it would seem strange that the issue in this case would not have been dealt with head-on, if it had been the intention of the makers of this Convention to provide that limitation of liability could only be invoked in response to legal proceedings against the party seeking to limit. Thus article 10.1 begins with the clear statement that “Limitation of liability may be invoked” without any suggestion that that broad statement has to be understood as restricted to a situation where legal proceedings have first been brought against the party invoking limitation.

For these reasons it seems to me that Total’s argument by way of analogy fails: the analogy breaks down; the premise of the analogy is in any event uncertain (but it is unnecessary to decide the true construction of article 11); and the place (article 10) where one would expect a clear statement of any restriction on the circumstances where limitation of liability can be invoked contains no such restriction.

As for textbooks and other writings, it seems to me that Meeson on Admiralty Jurisdiction and Practice (see para 36 above) and Jackson on Enforcement of Maritime Claims (see para 38 above) are helpful and consistent with the above analysis. It may well be, as Meeson writes, that the scheme of the Convention “envisages” that limitation of liability will be invoked responsively, but it does not require it to be. Clearly, there will be many occasions on which limitation will be invoked responsively. I recognise, however, that the Dutch Supreme Court in The Sherbro, dealing with article 11 but not with article 10, and dealing in any event with a case where the right to limit liability was invoked responsively, may, if the note on its decision presented to us has correctly understood its judgment, have incidentally accepted the Advocate General’s view that the purpose of article 11 was to prevent owners from initiating limitation litigation in a forum of their own choice.

I also recognise that in an earlier decision of the Dutch Supreme Court, The Sylt (28 February 1992), discussed in a case note by Professor Berlingieri in [1993] LMCLQ 433 especially at 433/4, it appears that the Supreme Court held that pursuant to article 11.1 limitation could be invoked only in a state party where legal proceedings are instituted in respect to a claim subject to limitation and on that ground rejected the right of shipowners in that case to institute proceedings in Holland. It is not easy, however, to discern what in the note represents the Supreme Court’s reasoning and what represents Professor Berlingieri’s own views. Certainly he rejects the Supreme Court’s ultimate decision, on the ground that in his view the Supreme Court was wrong not to view the arrest of the vessel by claimants in Holland as in any event being able to found a responsive invocation of limitation by the shipowners in Holland. For the rest Professor Berlingieri appears to put forward an argument by which he relies on the words from the second sentence of article 10.1 (“where an action is brought in its courts to enforce a claim”) by analogy to interpret the words in article 11.1 (“legal proceedings are instituted in respect of claims”) and to draw the conclusion that in both articles the requirement for the invocation of a right to limit is that of a prior action to enforce a claim. However, his argument seems to accept that there is “No express rule…as regards the court before which limitation may be invoked” in article 10, and that the language of article 11 is uncertain and has to be understood with the help of the language of article 10. He also appears to ignore the fact that the language in article 10.1 on which he relies is derived from an optional part of the Convention. In my judgment, this case note, while tending to support Total’s submissions in this court, does not cause me to doubt the analysis which I have preferred above.

As for the second issue of an injunction, I again agree with the judge and with Lord Justice Clarke, that no injunction should be granted. First, this is not a case in contract where Total has agreed to abide by English law and jurisdiction. Therefore the owners must find a basis outside Total’s own promise for saying that Total is acting unconscionably in going to Texas. Total seeks to find that basis in the judgment of the English court on their claim to limit liability. Secondly, however, and whether or not the proceedings in Texas in the light of the English judgment can be regarded as unconscionable, the effect of the judgment of the courts of one nation in a foreign court which is asked to recognise or enforce it has long been regarded as a matter for either international treaty or the law of the foreign forum. This is understandable. Whereas the agreement of parties does not, save in a case which trespasses against public policy or public order, seek to impinge on the sovereignty of foreign nations, and whereas in any event respect in matters of contract for party autonomy is so widespread as possibly to be regarded as practically universal, the judgments of the courts of one nation can have effect in the courts of another nation only through international agreement or the willingness of the law of the foreign nation to recognise or enforce those judgments. Thirdly, the linchpin of the owners’ submissions in this regard, The Carron Iron Company Proprietors v. Maclaren (1855) V HLC 416, does not assist. The case involved litigation in England and Scotland, which is not an entirely helpful precedent in any event. As it is, although a majority of their Lordships acknowledged the possibility of restraining proceedings in a foreign court, they considered that no injunction should be granted in that case. It is not referred to in Dicey & Morris, The Conflict of Laws in the special context of support for the judgments of the English courts. The owners have not cited any case in which an anti-suit injunction has been granted solely in aid of an English judgment. Fourthly, the regime of the 1976 Convention is not a universal regime: see The Herceg Novi [1998] 2 Lloyd’s Rep 454. As I said in Caspian Basin Specialised Emergency Salvage Administration v. Bouygues Offshore SA (No 4) [1997] 2 Lloyd’s Rep 507 at 531, the international effect of an English declaration or decree under the 1976 Convention is for other nations to decide.

In these circumstances, it seems to me that in this context above all it is especially necessary to have regard to matters of international comity and to be very cautious about granting an anti-suit injunction in support of the English judgment. In Texas, the owners will be entitled, I assume, (a) to argue that, whatever personal jurisdiction the Texan court may or may not have over them, there is no subject-matter jurisdiction in respect of an accident at sea causing damage to an English company’s installations in the Scottish sector of the North Sea oilfields; and (b) to rely on the English court’s judgment reflecting the UK’s adherence to an international convention on limitation on liability. There is nothing exceptional in the facts of this case to suggest that those arguments cannot properly be left to Judge Kent.

I agree with both judgments.