Lloyd's Maritime and Commercial Law Quarterly
Australian Maritime Law
Martin Davies*
CASES
1. Commonwealth of Australia v Shenzhen Energy Transport Co Ltd 1
Limitation of liability—“distinct occasion”—discovery—pleadings
The ship Shen Neng 1 ran aground on the Great Barrier Reef. It was not refloated until 12 days later. The reef was damaged extensively. The Commonwealth of Australia sued the owner of Shen Neng 1, claiming that it had suffered loss as a result of the damage to the reef. In its defence, the owner admitted that the grounding had been caused solely by the negligence of the chief officer of the ship, but sought to limit its liability under Australia’s enactment of the Convention on Limitation of Liability for Maritime Claims 1976, as amended by the 1996 Protocol (LLMC 76/96).2 The Commonwealth sought discovery of the ship’s and other documents relating to the grounding. The primary judge refused to order discovery, holding that the Commonwealth would have to amend its statement of claim to plead one or more distinct occasions other than the original grounding before it would be entitled to discovery. Because of the owner’s admission of the cause of the grounding, there was no pleaded issue to warrant ordering discovery of the documents in question. The Commonwealth sought leave to appeal.
Decision: Leave granted and appeal allowed.
Held: (1) There are two means by which a shipowner can invoke a right to limit its liability under LLMC 76/96: either by bringing limitation proceedings to establish a limitation fund, or alternatively by pleading a specific defence to a claim brought against it. Here, the owner of Shen Neng 1 had done the latter.
(2) The Commonwealth had pleaded a general maritime claim for damage done to the reef by the ship. That pleading was sufficient to enable the Commonwealth to recover all the loss or damage that resulted from the initial grounding, regardless of any intervening or subsequent further acts, errors or omissions by the crew of the ship.
(3) There was no requirement in the common law system of fact pleading for the Commonwealth to plead or prove specifically each or every further alleged or possible act, error or omission during the 12 days that Shen Neng 1 was aground on the reef in order recover the full amount of loss or damage that it could prove it had suffered.
* Admiralty Law Institute Professor of Maritime Law, Tulane University Law School; Director, Tulane Maritime Law Center; Professorial Fellow, Melbourne Law School.
1. (2015) 234 FCR 113.
2. Limitation of Liability for Maritime Claims Act 1989 (Cth). See further post, §13.
2