PART XA Limitation Of Liability

352. Definitions

352A. Limitation of liability of owner for damages in respect of certain claims

352B. Limits of liability

352C. Limitation Fund and consolidation of claims against owners

352D. Release of ship, etc.

352E. Application to ships in course of completion or construction etc.

352F. Application of this Part to charter, manager, etc. of a vessel

352. Definitions-- In this Part, unless the context otherwise requires:

(a) “claim” means a personal claim or property claim;

(b) “franc” means a unit consisting of sixty-five and a half milligrams of gold of millesimal fineness nine hundred;

(c) “Fund”, in relation to owner of a vessel, means the limitation Fund constituted under section 352-C;

(d) "liability", in relation to owner of a vessel, includes liability of the vessel herself;

(e) “occurrence” means an occurance referred to in sub-section (1) of secctin 352A;

(f) “personal claim” means a claim resulting from loss of life or personal injury;

(g) “property claim” means any claim other than a personal claim arising from an occurance.

352A. Limitatin of liability of owner for damages in respect of certain claims-- (1) The owner of a sea-going vessel may limit his liability in accordance with the provisions of sectin 352B in respect of any claim arising from any of the following occurrences unless the occurrence giving rise to the claim resulted from the actual fault or privity of the owner--

(a) loss of life of, or personal injury to, any person being carried in the vessel, or loss of, or damage to any property on board the vessel;

(b) loss of life of, or personal injury to, any other person (whether on land or on water), loss of or damage to any other property or infringement of any rights:

(i) which is caused by the act, neglect or default of any person on board the vessel for whose act, neglect or default the owner is responsible; or

(ii) which is caused by the act, neglect or default of any person not on board the vessel for whose act, neglect or default the owner is responsible.

Provided that the owner shall be entitled to limit his liability in respect of any claim arising out of any act, neglect or default as is referred to in sub-clause (ii) only when the act, neglect or default is one which occurs in the navigation or the management of the vessel or in the loading, carriage or discharge of cargo or in the embarkeation, carriage or disembarkation of its passengers.

(2) The burden of proving that the occurrence giving rise to a claim against the owner of a vessel did not result from his actual fault or privity shall be on the owner.

(3) Nothing in this section shall apply by--

(a) any obligation or liability imposed by any law relating to the removal of wreck and arising from or in connection with the raising, removal or destruction of any vessel which is sunk, stranded or abandoned (including anything which may be on board such vessel) and any obligation or liability arising out of damage caused to harbour works, navigation and navigable waterways;

(b) claims for salvage or to claims for contribution in general average;

(c) any claim by the master or a member of the crew of the vessel or any servant of the owner who is on board the vessel or whose duties asre connected with the vessel (including any claim by the legal representative of such master, member of the crew or servant) if the contract of service between the owner and such master or member of the crew or servant is governed by the law of any foreign country and that law either does not set any limit to the liability in respect of such claims or sets a limit exciting that set to it by section 352B.

(4) Any action on the part of the owner of a vessel to limit his liability under sub-section (1) shall not merely by reason of such action constitute an admission of liability.

(5) An owner of a vessel shall be entitled to lmit his liability under sub-section (1) in respect of any occurance even in case where his liability arises, without proof of negligence on the part of the owner or of persons for whose conduct he is responsible, by reason of his ownership, possession, custody or control of the vessel.

352B. Limits of liability-- (1) The amounts to which the owner of a vessel may limit his liability under sub-section (1) of section 352A shall be--

(a) where the occurance has given rise to property claims only an aggregate amount not exciding the amount equivalent to one thousand francs for each ton of the vessel’s tonnage.

(b) where the occurrrence has given rise to property claims only an aggregate amount not exceeding the amount equivalent to three thousand and one hundred francs for each ton of the vessel’s tonnage.

(c) where the occurance has given rise both to personal claims and property claims, an aggregate amount not exceeding the amount equivalent to three thousand and one hundred francs for each ton of the vessel’s tonnage of which the first portion of the amount equivalent to two thousand and one hundred frances for each ton of the vessel’s tonange shall be exclusively appropraited to the payment of personal claims and of which the second portion of the amount equivalent to one thousand francs for each ten of the vessel’s tonnage shall be apropriated to the payment of property claims.

Provided taht in cases where the first portion is insufficient to pay the personal claims in full, the unpaid balance of such claims shall rank rateably with the property claims for payment against the second portion of the amount.

Explanation-- For the purposes of this sub-section, the tonnage of a vessel of less than three hundred tons shall be deemed to be three hundred tons.

(2) The limits set by sub-section (1) to the liabilities mentioned therein shall apply to the aggregate of such liabilities which are incurred on any distinct occasion, and shall so apply in respect of each distinct occasion without regard to any liability incurred on another occasion.

(3) For the purposes of this section a vessel’s tonnage shall be determined in such manner as the Central Government may, by general or special order, specify.

(4) The Central Government may from time to time by order determine the amounts which for the purposes of this section are to be taken as equivalent to three thousand and one hundred and one thousand francs respectively.

352C. Limitation Fund and consolidation of claims against owners--

(1) Where any liability is alleged to have been incurred by the owner of a vessel in respect of claims arising out of an occurance and the aggregate of the claims exceeds or is likely to exceed the limits of liability of the owner under section 352B, then the owner may apply to High Court for the setting up of a limitation Fund for the total sum representing such limits of liability.

(2) The High Court to which the application is made under sub-section (1) may determine the amount of the owner’s liability and require him to deposit such amount with the High Court or furnish such security in respect of the amount as in the opinion of the High Court is satisfactory and the amount so deposited or secured shall constitute a limitation Fund for the purposes of the claims referred to in sub-section (1) and shall be utilised only for the payment of such claims.

(3) After the Fund has been constituted, no person entitled to claim against it shall be entitled to exercise any right against any other assets of the owner in respect of his claim against the Fund,if that fund is actually available for the benefit of the claimant.

(4) Subject to the provisions of this Part, the High Court may distribute the amount constituting the Fund rateably amongst the several claimants and may stay any proceedings pending in any other court in relation to the same matter and may proceed in such manner and subject to such rules of the High Court as to making persons interested parties to the proceedings and as to the exclusion of any claims which do not come in within a certain time, and as to requiring security from the owner, and as to payment of any costs, as the High Court thinks fit.

(5) Where the owner establishes that he has paid in whole or in part and claim in respect of which he can limit his liability, under section 352A, the High Court shall place him in the same position and to the same extent in relation to the Fund as the claimant whose claim he has paid.

(6) Where the owner has established that he may at a later date be required to pay in whole or in part, any of the claims under this Part, which could be settled from the Fund, the High Court may notwithstanding the foregoing provisions of this section order that a sufficient sum may be provisionally set aside for the purpose to enable the owner to enforce his claim against the Fund at a later date in accordance with the provisions of sub-section (4).

(7) If the owner is entitled to make a claim against a claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this Part shall only apply to the balance, if any.

352D. Release of ship, etc-- (1) Where a vessel or other property is detained in connection with a claim which appears to the High Court to be founded on a liabillity to which a limit set by section 352B applies, or security is given to prevent or obtain release from such detention, the High Court may, and in the circumstances mentioned in sub-section (3) of this section shall, order the release of the vessel, property or security if the conditions specified in sub-section (2) are satisfied; and where the release is ordered, the person on whose application it is ordered shall be deemed to have submitted to the jurisdiction of the High Court to adjudicate upon the claim.

(2) The conditions referred to in sub-section (1) are--

(a) that security which in the opinion of the High Court is satisfactory (in this section referred to as “guarantee”) has previously been given whether in India or elsewhere, in respect of the said liability or any other liability incurred on the same occasion and the High Court is satisfied that if the claim is established, the amount for which the guarantee was given or such part thereof as corresponds to the claim will be actually available to the claimant; and

(b) that either the guarantee is for an amount not less than the said limit or further security is given which, together with the guarantee, is for an amount not less than that limit.

(3) The circumstances referred to in sub-section (1) are that the guarantee was given in a port which, in relation to the claim, is the relevant port (or as the case may be, a relevant port) and that port is in a convention country.

(4) For the purposes of this section--

(a) a guarantee given by the giving of security in more than one country shall be deemed to have been given in the country in which security was last given;

(b) any question whether the amount of any security is (either by itself or together with any other amount) not less than any limit set by section 352B shall be decided as at the time at which the security is given;

(c) where part only of the amount for which a guarantee was given will be available to a claimant that part shall not be taken to correspond to his claim if any other part may be available to a claimant in respect of a liability to which no limit is set as mentioned in sub-section (1).

(5) In this section--

(a) “convention country” means any country in respect to which the International Convention relating to the Limitation of the Liability of owners of sea-going ships signed in Brussels on the 10th day of October, 1957, is in force and includes any country to which the Convention extends by virtue of article 14 thereof;

(b) “relevant port”, in relation to any claim, means a port where the event giving rise to the claim occurred, or if that event did not occur in that port, the first port of call after the event occured and includes in relation to a claim for loss of life or personal injury or for damage to cargo, the port of disembarkation or discharge.

352E. Application to ships in course of completion or construction, etc.--

The provisions of this Part relating to limitation of liability of owners shall extend and apply to the owners, builders or other persons having an interest in any vessel built in any port or place in India from and including the launching of such vessel until the registeration thereof in accordance with the provisons of this Act, as they apply in relation to the owner of a vessel registered under this Act.

352F. Application of this Part to charterer, manager, etc., of a vessel--

(1) Subject to the provisions of sub-section (2), the provisions of this Part relating to llimitation of liability of an owner of a vessel in respect of claims arising out of an occurance shall apply to the charterer, manager and operator of the vessel and to the master, members of the crew and other servants of the owner, charterer, manager or operator acting in the course of their employment in the same manner as they apply in relation to the owner.

Provided that the total limits of liability of the owner and all other persons referred to in this sub-section in respect of perosonal claims and property claims arising on a distinct occasion shall not exceed the amounts determined in accordance with the provisions of section 352B.

(2) The master or a member of the crew of a vessel may limit his liability under sub-section (1) even if the occurrence which gives rise to a claim against him resulted from the actual fault or privity of the master and the members of the crew or any one or more of them.

Provided that where the master ora member of the crew is at the same time the owner co-owner, charterer, manager or operator of a vessel, the provisions of this sub-section shall only apply where such occurrence resulted from any act, neglect or default committed by the master or, as the case may be, the member of the crew in his capacity as master, or, as the case may be, as a member of the crew.]

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