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

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.

The right of subrogation provided for in paragraph 2 may also be exercised by persons other than those therein mentioned in respect of any amount of compensation which they may have paid, but only to the extent that such subrogation is permitted under the applicable national law.

Where the person liable or any other person establishes that he may be compelled to pay, at a later date, in whole or in part any such amount of compensation with regard to which such person would have enjoyed a right of subrogation pursuant to paragraphs 2 and 3 had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund.

Where a limitation fund has been constituted in accordance with Article 11, any person having made a claim against the fund shall be barred from exercising any right in respect of such a claim against any other assets of a person by or on behalf of whom the fund has been constituted.

After a limitation fund has been constituted in accordance with Article 11, any ship or other property, belonging to a person on behalf of whom the fund has been constituted, which has been arrested or attached within the jurisdiction of a State Party for a claim which may be raised against the fund, or any security given, may be released by order of the Court or other competent authority of such State. However, such release shall always be ordered if the limitation fund has been constituted:

The rules of paragraphs 1 and 2 shall apply only if the claimant may bring a claim against the limitation fund before the Court administering that fund and the fund is actually available and freely transferable in respect of that claim.

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:

“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.

…

7.

The act of invoking limitation of liability shall not constitute an admission of liability.”

Chapter II is entitled “Limits of Liability” and contains Articles 6 to 10, which cover “The general limits” (i.e. financial limits for different tonnages), “The limit for passenger claims”, “The Unit of Account” (in terms of drawing rights), “Aggregation of claims” and (as quoted above) “Limitation of liability without constitution of a limitation fund” respectively. Chapter III is entitled “The Limitation Fund” and contains Articles 11 to 14 which are quoted above. Chapter IV is entitled “Scope of Application”.

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:

“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.”

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:

“(1)

The Admiralty jurisdiction of the High Court shall be as follows, that is to say –

(a)

….

(b)

jurisdiction in relation to any of the proceedings mentioned in subsection (3)

(c)

….

…

(3)

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

…

(c)

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.

…

(7)

The preceding provisions of this section apply –

(a)

in relation to all ships … whether British or not … and wherever the residence or domicile of their owners may be;

(b)

in relation to all claims, wherever arising …”

Mr Meeson submits on behalf of the owners that in the light of section 20(1), (3) and (7), which expressly confer jurisdiction on the court in respect of limitation actions in relation to all claims wherever arising, there can be no doubt that the court has jurisdiction in respect of the subject matter of the owners’ claim. Mr Meeson also submits that this claim is brought in accordance with CPR Part 61.11 and paragraph 10 of PD61.

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:

“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.”

The United Kingdom has not introduced such a provision and has accordingly not included that sentence from Article 10.1 in Schedule 7 to the 1995 Act. Mr Meeson submits that it is clear from that sentence that where, as in the United Kingdom, a State Party does not so provide, limitation may be invoked even where an action has not been brought by a claimant to enforce a claim subject to limitation. I agree. The second sentence of Article 10.1 is entirely consistent with the express provision in the first sentence that the limitation may be invoked without the constitution of a fund and with the conclusion that a limitation action may be brought in such a case in the absence of an action to enforce a claim subject to limitation.

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:

“When a limitation decree is granted the court -

(a)

may -

(ii)

order the claimant to establish a limitation fund ifone has not been established or make such other arrangements for payment of claims against which liability is limited; … ”

That provision applies to all limitation decrees including a restricted one such as that made in the instant case. It recognises that the constitution of a fund is not mandatory and that, in an appropriate case, the court may consider it more appropriate simply to require the claimant to make payment of any claim or claims. As the judge said, the circumstances in which the court may adopt that alternative approach are not prescribed by the rule. Thus the court might adopt it because (for example) there is only one claim against the shipowner, liability for which is admitted (as in the present case), so that no useful purpose would be served by requiring the constitution of a fund at the decree stage, it being more expeditious simply to require the limitation amount to be paid to that claimant. It might equally be that the claimant could not constitute a fund under Article 11.1 (as in this case) so that it would not be appropriate for the court to order the claimant to do the impossible, although the court might require some other arrangement to safeguard those with claims to be put in place.

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):

“I see nothing there to limit the entitlement of the claimant to invoke the jurisdiction of this court to seek a decree of limitation even in circumstances where there is no claim (as yet) brought against him in this jurisdiction. To the contrary, it seems to me that the Convention expressly contemplates it. Of course it will be a rare case where a claimant invokes the jurisdiction of a state party to seek a decree of limitation in circumstances in which there is no realistic prospect of any claim being brought in that jurisdiction to justify the constitution of the fund merely to invoke thereby the sort of powers that are afforded under the English rules of court in Part 61.11 rule 13 which prescribes that ‘where a limitation decree is granted, the court may [and I emphasise “may”] amongst other things (i) order proceedings relating to any claim arising … be stayed and (ii) order the claimant to establish a limitation fund if one has not been established’.”

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:

“The claim form may not be served out of the jurisdiction unless -

(c)

the Admiralty Court has jurisdiction over the claim under any applicable Convention.”

I agree with the judge that the ratio of Colman J’s decision that permission to serve out could be given was that the 1976 Convention was an “applicable Convention” for the purposes of the sub-rule, that arbitration proceedings in London which had led to an award constituted the institution of “legal proceedings” in this jurisdiction within the meaning of Article 11.1 of the Convention, entitling the shipowners to constitute a limitation fund here and that once a limitation fund was constituted here, the Court had jurisdiction to grant permission to serve the claim form out of the jurisdiction.

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

“What is certain, however, is that the owner of a vessel, anticipating arrest, can do nothing to force a claimant into a jurisdiction of his own choice.”

The judge accepted that that would seem to support the proposition that a limitation claim can be brought only in a jurisdiction where the owner can establish a limitation fund under the Convention. However, on page 51, the authors go on to say (albeit without citation of authority):

“Where there is only one claimant, the defendant may decide to rely upon Article 10(1) and invoke limitation without constituting the fund.”

As to that the judge said that it would seem to be an implicit recognition that Article 10(1) gives a free-standing right to limit, which is against the defendant’s contention.

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:

“The 1976 Convention contains no express provisions regarding jurisdiction in which claims to limit liability may be made. The scheme of the Convention envisages that limitation of liability will be invoked responsively by a shipowner or other person entitled to invoke limitation, rather than in a pre-emptive manner. It envisages limitation being invoked against claims, which are made against the shipowner and thus envisage limitation being invoked in the courts of a State Party in which a claim is brought and to that extent the underlying assumption appears to be that limitation and liability will be decided in the same court. However, there is plainly no requirement for limitation claims to be brought in the same jurisdiction as liability claims and the trend in recent cases is to view limitation claims as free-standing claims subject to their own considerations of forum conveniens independent of the forum conveniens for liability claims.”

While the first part of that extract gives some support for the general point advanced by Mr Teare on behalf of Total, it seems clear that the precise point which falls for decision here was not being considered because of the assertion that there is no requirement that limitation claims should be brought in the same jurisdiction as liability claims.

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 the Convention makes no jurisdiction provision it is arguable that a national law may place its own restrictions. Conversely it may be argued that as the Convention specifically gives one restrictive option (to require a fund) it impliedly permits the bringing of a limitation action in any court.”

That view is consistent with the judge’s approach to the case. Nevertheless, I do not think that, taken as a whole, the academic writings determine the question for decision one way or the other.

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:

“I can see no valid reason for taking an adverse view of negative declaratory relief. This is whether it is claimed in relation to transnational disputes or domestic litigation.”

See also for a further example, Bristow Helicopters v Sikorsky Aircraft [2004] EWHC 401 (Comm) per Morison J at paragraph 25.

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:

“There can be nothing surprising or inappropriate about a limitation action being commenced in the same forum as a claimant’s action to establish liability; but equally there is nothing unusual about a limitation action taking place in a different forum from that in which liability is being litigated.”

I entirely agree. I would accept Mr Meeson’s submission that, if the claimants had not admitted liability, there would have been nothing to stop them from starting proceedings in England seeking a declaration that they were not liable and, in the alternative for a declaration (or decree) that, if they were liable they were entitled to limit their liability. I see nothing in the Convention to prohibit such an approach.

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:

“(i)

Under English law a person has no right to be sued in a particular forum, domestic or foreign, unless there is some specific factor that gives him that right, but a person may show such a right if he can invoke a contractual provision conferring it on him or if he can point to clearly unconscionable conduct (or the threat of unconscionable conduct) on the part of the party sought to be restrained: Turner v Grovit [2002] 1 WLR 107, 118C at para 25 per Lord Hobhouse.

(ii)

There will be such unconscionable conduct if the pursuit of foreign proceedings is vexatious or oppressive or interferes with the due process of this Court: South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV [1987] AC 24 at page 41D; Glencore International AG v ExterShipping Ltd [2002] 2 All ER (Comm) 1, 14a at para 42.

(iii)

The fact that there are such concurrent proceedings does not in itself mean that the conduct of either action is vexatious or oppressive or an abuse of court, nor does that in itself justify the grant of an injunction: Société Nationale IndustrielleAerospatiale v Lee Kui Jak [1987] AC 817 at page 894C; Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999] 1 Lloyd’s Rep 767 at 781; Airbus Industrie GIE v Patel [1999] 1 AC 119 at 133G/H.

(iv)

However, the court recognises the undesirable consequences that may result if concurrent actions in respect of the same subject matter proceed in two different countries: that ‘there may be conflicting judgments of the two courts concerned’ or that there ‘may be an ugly rush to get one action decided ahead of the other in order to create a situation of res judicata or issue estoppel in the latter’: see The Abidin Daver [1984] AC 398 at pages 423H–424A per Lord Brandon.

(v)

The Court may conclude that a party is acting vexatiously or oppressively in pursuing foreign proceedings and that he should be ordered not to pursue them if (a) the English court is the natural forum for the trial of the dispute, and (b) justice does not require that the action should be allowed to proceed in the foreign court, and more specifically, that there is no advantage to the party sought to be restrained in pursuing the foreign proceedings of which he would be deprived and of which it would be unjust to deprive him: Société Aerospatiale, ibid at 895D and 896F–G.

(vi)

In exercising its jurisdiction to grant an injunction, ‘regard must be had to comity and so the jurisdiction is one which must be exercised with caution’: Airbus Industrie, ibid at 133F. Generally speaking in deciding whether or not to order that a party be restrained in the pursuit of foreign proceedings the court will be reluctant to take upon itself the decision whether a foreign forum is an inappropriate one: Turner v Grovit, ibid at para 25.”

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:

“This potentially interesting case arises from a maritime collision occurring near the Shetland Islands, off the coast of England. Defendants’ vessel is alleged to have collided with a buoy attached to a sizeable petrochemical production platform creating substantial physical damage and an alleged loss of revenues. Defendants originally filed a limitation of liability action in the Queen’s Admiralty Court, in London, England. That matter has been tried to a conclusion, and a decision rendered. That is now on appeal. The English Admiralty Court has not issued a stay with regard to concurrent litigation. However, inasmuch as this case involves alleged damages of several million dollars, and the proceedings in London are at a relatively advanced state, this Court sincerely feels that the better course would be to defer to the English courts until a final decision has been rendered on the appellate level.”

To my mind that is a good example of the principle of judicial comity in action. There is no reason to think that, if the matter comes back before the court in Texas, that court will not give full consideration to the various aspects of the case, including the decree of limitation made by the judge here in England.

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:

“The effect of the Convention … is not to qualify the substantive right of the claimant against the shipowner but to limit the extent to which that right can be enforced against the limitation fund.”

See also The Happy Fellow [1997] 1 Lloyd’s Rep 130. I do not understand any of the later cases to disagree with this approach: see e.g. in a different context Harding v Wealands [2004] EWCA Civ 1735, [2005] 1 WLR 1539, per Arden LJ at paragraph 53. In these circumstances I would accept Mr Teare’s submission that the limitation decree does not attach to or qualify Total’s substantive right to damages in Texas, so that it is not unconscionable for Total to proceed in Texas. Total should not be enjoined from proceeding in Texas and the English court should leave the court in Texas to decide what effect to give to the decree granted in this action.

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.