To Limit or not to Limit: Limitation of Liability on West Australian Waters - a Call for Reform

• Author: Jacqueline M Allen
• Position: This paper was the joint winner of the 2010 Morella Calder Best Essay Prize
• Pages: 93-103

(2010) 24 A&NZ Mar LJ

TO LIMIT OR NOT TO LIMIT:

LIMITATION OF LIABILITY ON WEST AUSTRALIAN WATERS –

A CALL FOR REFORM

Jac queline Allen∗

1 Introduction

The Australian ice-skating community lost three of its ‘leading lights’ when the motor cruiser they were travelling on

collided with a Sydney HarbourCat late at night in Sydney Harbour in March 2007. Just this year in May, nine

people were injured after their high speed tour boat was swamped by a giant wave when the boat motored through

rough seas at The Heads, near Darling Harbour. These recent marine accidents on the Sydney Harbour have been

tragic. It is important, however, to acknowledge that these tragedies could happen anywhere in our river and lake

systems. For example, every day in Western Australia, many ferries leave the Barrack Street jetty filled with

passengers on a wine cruise, a day trip to Rottnest Island or a visit to South Perth. Whilst no other state in Australia

has a statutory limitation of liability regime for their inland waters, Western Australia currently has a provision to

allow ‘sheltered water passenger vessels’1 to limit their liability to the low amount of $45 000 per passenger.2

What

if a Western Australian ferry never made its destination – their passengers injured or even killed? This paper

addresses the existing provisions to limit liabilit y within Western Australian waters and questions why the provisions

exist at all.

Although nothing can fully compensate a victim’s loss in a marine accident, their tragic circumstances and the

potential liability to a claim for negligence must be given full recognition. If a marine casualty occurred in Western

Australian inland waters, the Western Australian Marine Act 1982 (WA) (‘WA Marine Act’) sets a $45 000 limit for

each passenger permitted on the vessel’s certificate of survey for non-seagoing ferries and a ‘sheltered water

passenger vessel’. This l ow figure was set in 1982 and has remained unchanged since then. It could potentially lend

itself to an injustice for claimants.

The provisions for limitation of liability in the WA Marine Act need to be reformed. The provisions are redundant

and outdated; there is a lack of purpose or reason for specifying limitation for non-seagoing ferries; and the clumsy

provision for calculating limitation refers to an obsolete currency rarely used. A fresher, contemporary WA Marine

Act is required that completely removes all Western Australian limitation provisions, including limitation provisions

for non-seagoing vessels, ensuring consistency Australia wide.

This paper is in four parts. First it outlines the current regime that exists to limit liability on Western Australian

waters; secondly it questions why the dichotomy exists between Western Australia and the rest of Australia

regarding inland waters; thirdly this paper argues for removing the current limitation provisions; and finally some

recommendations are proposed for both a clearer and more precise WA Marine Act and for a consistent Australia-

wide limitation of liability regime for inland waters.

2 Doc trine of limitation of liability - an overview

Limitation of liability is recognised by most shipping nations and is intended to encourage maritime investment by

limiting the liability for large commercial shipping ventures.3 The liability for shipowners, charterers and salvors for

a maritime incident is potentially much larger than the cost of the ship and could involve crippling pecuniary

damage.4 Limitation of liability is designed to offer some protection against the shipowner bearing the full impact of

negligent navigatio n of their ships, particularly as they have no way to appropriately supervise their crew.5

∗ This paper was the joint winner of the 2010 Morella Calder Best Es say Prize.

1 Defined in the Western Australian Marine Act 1982 (WA) s 76.

2 Western Australian Marine Act 1982 (WA) s 85.

3 Limitation of Liability started in 1733 in England and was said to be triggered by the case of Boucher v Lawson (1733) 95 Eng Rep 53.

4 In this paper, the term ‘shipowner’ will refer to all th ose able to claim limitation such as sh ipowners, salvors, and charterers.

5 British Columbia Telephone Co v Marpole Towing Ltd [1971] SCR 321, 338.

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