Global Limitation Of Liability As It Relates To Kenya

Global Limitation Of Liability As It Relates To Kenya


Date Posted: 2020-02-21 10:37:00

A. Introduction

The Convention on the Limitation of Liability for Maritime Claims, 1976 (the Limitation Convention, 1976) was preceded by the 1957 International Convention Relating to the Limitation of Liability of Owners of Sea-going Ships (1957 Liability Convention). In the United Kingdom, the 1957 Liability Convention, though not wholly adopted by the UK, found its place in amendments to section 503 of the United Kingdom Merchant Shipping Act, 1894 which had, hitherto, enshrined the principle in English law. Limitation under these provisions could not avail the shipowner if he could not show that the incident giving rise to the claims took place without his actual fault or privity. It was a difficult burden for the shipowner to discharge in the frequent litigation that ensued. This issue, coupled with a demand for a higher limitation figure, led to the International Conference for Limitation of Liability held in London in 1976, under the auspices of the International Maritime Organisation (IMO), which resulted in the adoption of the Limitation Convention, 1976. The Limitation Convention, 1976 was a compromise in order to strike a balance between successful claimants and shipowners. It achieved the increase of the limitation fund to a sufficiently high level, so that the claimants could reasonably be compensated, but not so high as to make the shipowners liability uninsurable. As a quid pro quo for the increase of the fund, the article providing for the breaking of limitation became tighter, so that it is almost impossible for the claimants to break the right to limit.

The Limitation Convention 1976 was originally incorporated into the law of the United Kingdom as schedule 4 of the United Kingdom Merchant Shipping Act, 1979 as read with section 17 of the same Act. It now appears as schedule 7 to the United Kingdom Merchant Shipping Act, 1995 as read with section 185 of the same Act.

B. The Limitation Convention, 1976 as it relates to Kenya

In Kenya, the repealed Merchant Shipping Act, Cap 389, which had been enacted in 1967 was based on the United Kingdoms Merchant Shipping Act, 1894. The Merchant Shipping Act, Cap 389 was eventually repealed by the Merchant Shipping Act, 2009, which Act was, to a large extent, based on the United Kingdom Merchant Shipping Act, 1995. At any rate, section 4 of Kenyas Judicature Act, Cap 8 provides that [t]he admiralty jurisdiction of the High Court shall be exercisable (a) over and in respect of the same persons, things and matters; and (b) in the same manner and to the same extent; and (c) in accordance with the same procedure, as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations. Interestingly, Kenya did not become a State party to the Limitation Convention 1976, although Part XVII of the Merchant Shipping Act, 2009, in large part, reproduces the provisions of the Limitation Convention, 1976.

The 1996 Protocol was ratified by the United Kingdom on the 11th of June, 1989 and appears to have come into force for the United Kingdom on the 13th of May, 2004. The 1996 Protocol was acceded to by Kenya on the 7th of July, 2015 and came into force for Kenya on the 5th of October, 2015. In Kenya, the fact that the 1996 Protocol came into force for Kenya, means that the same is now, by virtue of Kenyas Constitutional provisions, a part of Kenyan law. In other words, the Limitation Convention, 1976 as amended by the Protocol of 1996 is now a part of the law of Kenya. Because the Limitation Convention, 1976 as amended by the Protocol of 1996 is now part of the law of Kenya, Kenya needs to make some changes in its law relating to limitation of liability.

The following are some of the changes that should be made by Kenya.

1. Radically amending Part XVII of the Merchant Shipping Act to provide for a Schedule incorporating the Limitation Convention, 1976 as amended by the 1996 Protocol.

The manner of drafting the Merchant Shipping Act, 2009 appears to be to engraft substantively all the provisions of a convention into the statute. This is what has been done with regard to the Liability Convention, 1976. However, this type of drafting may not be advantageous for two reasons. Firstly, especially with amendment of the limits of liability, the International Maritime Organization has crafted the tacit amendment procedure which is a very simple method of amendment. What this means is that if an amendment occurs at the IMO, then a similar amendment would have to be presented to Parliament and hopefully passed in the same manner as the amendment at the IMO. This may be unduly cumbersome, and as pointed out later, an amendment by the IMO and lack of amendment by Kenya create a situation of conflict between an Act of Parliament and a convention. Secondly, by becoming a State Party to a convention, that convention becomes a part of the law of Kenya. As such a possible conflict between an Act of Parliament and a convention is not desirable.

2. Amending the limits of liability.

Under the Merchant Shipping Act, 2009, the limits of liability are stated as follows:

Section 391 of the Merchant Shipping Act, 2009 provides as follows:

The limits of liability for claims other than those provided for in section 388, arising on any distinct occasion, shall be calculated as follows

(a) in respect of claims for loss of life or personal injury
(i) 166,667 special drawing rights for a ship with a tonnage not exceeding 300 tons;
(ii) 333,000 special drawing rights for a ship with a tonnage from 301 tons to 500 tons; and
(iii) for a ship with a tonnage in excess of 500 tons, the following amounts in addition to that mentioned in sub-paragraph (ii)
(aa) for each ton from 501 to 3,000 tons, 500 special drawing rights;
(bb) for each ton from 3,001 to 30,000 tons, 333 special drawing rights;
(cc) for each ton from 30,001 to 70,000 tons, 250 special drawing rights; and
(dd) for each ton in excess of 70,000 tons, 167 special drawing rights; and

(b) in respect of any other claims
(i) 83,333 special drawing rights for a ship with a tonnage not exceeding 300 tons;
(ii) 167,000 special drawing rights for a ship with a tonnage from 301 tons to 500 tons;
(iii) for a ship with a tonnage in excess of 500 tons the following amounts in addition to that mentioned in sub-paragraph (ii)
(aa) for each ton from 501 to 30,000 tons, 167 special drawing rights;
(bb) for each ton from 30,001 to 70,000 tons, 125 special drawing rights; and
(cc) for each ton in excess of 70,000 tons, 83 special drawing rights.

However, there are significant changes that have been made to these limits. Article 6 of the Limitation Convention 1976 as amended by the 1996 Protocol provides s follows:

1. The limits of liability for claims other than those mentioned in Article 7, arising on any distinct occasion, shall be calculated as follows:

(a) in respect of claims for loss of life or personal injury,
(i) 2 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,
(ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):
for each ton from 2,001 to 30,000 tons, 800 Units of Account;
for each ton from 30,001 to 70,000 tons, 600 Units of Account; and
for each ton in excess of 70,000 tons, 400 Units of Account,

(b) in respect of any other claims,
(i) 1 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,
(ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i):
for each ton from 2,001 to 30,000 tons, 400 Units of Account;
for each ton from 30,001 to 70,000 tons, 300 Units of Account; and
for each ton in excess of 70,000 tons, 200
Units of Account.

The Merchant Shipping Act should therefore be updated to include the limits of liability. Further, this section 391 of the Merchant Shipping Act, 2009 and article 7 of the Limitation Convention, 1976 as amended by the 1996 Protocol, provides an instance of conflict between a aw made by Parliament and the Constitution. Despite article 2 (6) of the Constitution existing since August, 2010, it appears that Parliament has never considered the question as to the hierarchy of laws in the event of a conflict between an Act of Parliament. In the absence of such legislative guidance, it appears that the courts may have to treat the latter provision as amending the earlier provision. In any event Parliament may need to give proper legislative guidance on that issue by an amendment of section 3 of the Judicature Act, Cap 8.

3. Reservation

Article 18 (1) (b) of the Limitation Convention, 1976 as amended by the 1996 Protocol allows a State party to, at the time of signature, ratification, acceptance, approval or accession, or at any time thereafter, reserve the right to exclude claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any amendment or protocol thereto.

In apparent pursuance to that provision, when Kenya acceded to the 1996 Protocol, it made the following reservation:

The Government of the Republic of Kenya pursuant to article 7(1)(b) of the Protocol of 1996 to the Convention on Limitation of Liability for Maritime Claims, 1976, reserves the right to exclude claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996.

The required reservation contains the words or any amendment or protocol thereto. However, Kenyas reservation does not contain these words. It is unlikely that the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 will ever come into force. However, the Protocol of 2010 to amend the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 shows a strong likelihood of coming into force.

Since according to the Limitation Convention, 1976 as amended by the 1996 Protocol and the yet to come into force Protocol of 2010 to amend the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996, Kenyan courts would be the ones to deal with liability arising under the two conventions, it may be necessary for the Attorney-Generals office to give an advisory on the true intention of the Government of Kenya when it made the reservation. This would avoid an interpretation that does not fully capture the intention of the Government of Kenya.

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