Legislation Note: New Zealand's Maritime Transport Amendment Act 2017

• Author: Bevan Marten
• Position: Senior Lecturer, Victoria University of Wellington School of Law; bevan.marten@vuw.ac.nz
• Pages: 39-43

(2018) 32 ANZ Mar L J 39

LEGISLATION NOTE:

NEW ZEALAND’S MARITIME TRANSPORT AMENDMENT ACT 2017

Dr Bevan Marten*

In December 2017 New Zealand’s Parliament enacted legislation amending the Maritime Transport Act 1994

(MTA94). In amongst the technical amendments were several matters of wider interest, including an approach

to limiting liability for wreck removal that was ultimately abandoned, and some updates to the country’s oil

pollution liability re gime. There were also provisions on matters as diverse as drug and alcohol testing, coastal

shipments to offshore islands, rocket launches, and pilots’ liability.

Limitation of Liability for Wreck Removal

New Zealand’s global limitation regime is based on the Convention on Limitation of Liability for Maritime

Claims 1976 (LLMC), under which shipowners can limit their liability in respect of a r ange of maritime claims

to a maximum sum of money linked to the tonnage of their vessel.1 Following the passage of the 2017

amendment Act, the MTA94’s limitation regime remains substantively unchanged. However, this outcome was

not guaranteed. The initial draft of the Bill contained a provision t hat would have significantly extended the

scope of claims not subject to limitation in the context of wreck removal.

The current Act, which gives the LLMC the force of law, 2 states that this regime does not limit or effect sections

33J, 33K, or 110 of the MTA94,3 which set out the wreck r emoval powers of regional councils and Maritime

New Zealand. Removing these sections from the list of those claims subjec t to limitation helps public authorities

to carry out their responsibilities in respect of hazards to navigation or derelict vessels . For example, Mar itime

New Zealand co uld order a vessel’s owner to remove a wreck, and that owner could not refuse to do so on the

basis that its liability was capped by the LLMC.

This exception is linked to the widely-exercised reservation available to states under article 18 of the LLMC to

exclude wreck removal (or, more precisely, claims falling within art 2(1)(d) and (e) of the LLMC) from the

limitation regi me. T o date, New Zealand has made only partial use of this option: it has effectively removed

public authorities’ claims fitting this description from the regime’s scope, but not t hose of private parties.4

The change pro posed by the Bill as introduced in late 2 016 would have taken maximum advantage of the

reservation available in articl e 18 by broadening the exclusion so that New Zealand’s domestic legislation

matched the wording of arts 2(1)(d) and (e) and 18(1)(b). This would have removed shipowners’ ability to limit

liability in relation to:5

(a) claims in respect of the raising, removal, destruction, or rendering harmless of a ship that is sunk,

wrecked, stranded, or abandoned, including anything that is or has been on bo ard the ship; and

(b) claims in respect of the removal, destruction, or rendering harmless of the car go of a ship.

New Zealand law would then have mirrored the approach taken in Australia, where arts 2(1)(d) and (e) have not

been given the force of law.6

The effect of the proposed amendment would have been to remove the distinction between “public” and

“private” wreck removal, permitting any party t hat could bring its claim within the descri ption of art 2(1)(d) and

(e) of the LLMC to circumvent the liability regime. For example, following a major container ship casualty a

private marina owner that removed a partially submerged container from the marina could argue that it was

“rendering harmless the cargo of a ship”, and its claim was there fore not subject to the owner’s right to limit

liability under the LLMC. The owner would sit in the same position as a public authority carrying out wreck

* Senior Lecturer, Victoria University of Wellington School of Law; bevan.marten@vuw.ac.nz.

1 Convention on Limitation of Liability for Maritime Claims 1456 UNTS 221. See Bevan Marten, Maritime Law in New Zealand (2016)

188-195.

2 Maritime Transport Act 1994 (NZ), s 84A.

3 Maritime Transport Act 1994 (NZ), s 86(4)(a).

4 It has done so as a matter of domestic law only: New Zealand has neglected to formally communicate its position at the international level.

5 Maritime Transport Amendment Bill 2016 (200-1) (NZ), cl 8(2).

6 Limitation of Liability for Maritime Claims Act 1989 (Cth), s 6.