Lloyd's Maritime and Commercial Law Quarterly
TUG AND TOW—LIMITATION OF LIABILITY—THE FLOTILLA ISSUE
L. J. Kovats, LL.B.
The flotilla issue in limitation of liability proceedings poses the perennial question whether the combined tonnages (in the United States the vessels’ values and freights earned) of the tug and of her tow, or only that of the one, or that of the other, are, or is sufficient to calculate the fund which is the financial limit of the tugowner (and/or any other relevant person’s) liability for the casualty.
The criticisms levelled at the judgments on this issue are numerous on both sides of the Atlantic. “The flotilla litigation,” say Professors Gilmore and Black1, “is an unhappy illustration of our judicial system at its worst,” and Mr. Justice Kerr in The Sir Joseph Rawlinson
2, while accepting the principle that “there would be nothing anomalous in a result which … places an owner of both tug and tow under greater liability than if he does not own the tow,” had to abide by Lord Denning, M.R.’s, view of the law as stated in The Bramley Moore
3.
One’s sympathies are with Judges who must construe sense out of obscurely worded statutes, and the American limitation statute, 46 U.S.C.A. ss. 181-189, which originated in its first enactment by Congress in 18514 is mainly responsible for the divergence of views and holdings of law in the maritime laws in Britain and in the U.S. on this subject. The kernel of the American statute is s. 183, which reads5:
“The liability of the owner of any vessel, whether American or foreign, for any embezzlement loss or destruction by any person of any property, goods or merchandise shipped or put on board such a vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss damage or forfeiture, done occasioned or incurred without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b)6 exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.”
The British equivalent, (as far as is here relevant) is s. 503 of the Merchant Shipping Act 1894, as modified by the 1958 Act7:
“The owners of a ship, British or foreign, shall not, where all or any of the following occurrences take place without their actual fault or privity: … (a) where any loss of life or personal injury is caused to any person being carried in the ship; … (d) where any loss or damage is caused to any property … through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship … or through any other act or omission of any person on board the ship; be liable to damages beyond the following amounts … in respect of loss of life or personal injury
1 “The Law of Admiralty”, by Grant Gilmore and Charles L. Black, Jr. 2nd ed. 1975, p. 918.
2London Dredging Co., Ltd. v. Greater London Council (The Sir Joseph Rawlinson)
[1972] 2 Lloyd’s Rep. 437 and 441.
4 9 Stat. 635 (1851); for an authoritative judicial view of the early history of the statutes in the U.S. up to 1871, see Norwich and New York Transport Co. v. Wright, 80 U.S. (13 Wall) 104.
5 With numerous amendments added up to the year 1936.
6 Loss of life and bodily injury claims are compensated from fund calculated at $60 per ton of gross tonnage of the vessel.
7 The Merchant Shipping (Liability of Shipowners and Others) Act 1958.
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