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Limitation of Liability for Personal Injury in NZ: Acc meets the sea Bevan Martin / Izard WESTON (Law Clerk)

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Posted 18 April 2011 - 12:15 AM

https://maritimejour...le/viewFile/10/

LIMITATION OF LIABILITY FOR PERSONAL INJURY IN NEW ZEALAND:
ACC MEETS THE SEA

Bevan Marten*
Law Clerk, Izard Weston, Wellington

Introduction
New Zealand’s approach to personal injury law is now familiarly associated with the scheme of no-fault
cover currently embodied in the Injury Prevention, Rehabilitation, and Compensation Act 2001 (NZ) (the
‘ACC’ scheme). However, a number of provisions remain scattered throughout our maritime law statutes
harking back to more traditional actions by seafarers and passengers seeking compensation for accidents
suffered at sea.1 These provisions point to the fact that, despite the wide reach of our compensation regime,
personal injury litigation is not a dead letter in New Zealand. Admiralty litigation can take place in
jurisdictions that have little or no connection with the vessel in question, save its physical presence at the
time proceedings are brought,2 and where an accident occurs on a foreign ship before disembarkation in
New Zealand, the statutory compensation regime will not apply.3
As a result of this ‘admiralty gap’ in the statutory compensation scheme, New Zealand needs to ensure that
its maritime law in the area of personal injury is up to date, takes into account international developments,
and provides for safe and efficient shipping.4 This article, which arose from a wider study of the interaction
between maritime law and personal injury in New Zealand, concerns the limitations on liability for
personal injury actions following shipping accidents in that jurisdiction. It examines both the Convention
for Limitation of Liability for Maritime Claims 1976 (the 1976 Convention)5 and the International
Convention for the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention)6, and
how they interrelate with New Zealand’s ACC legislation.
Limitation of Liability Generally
Even if personal injury plaintiffs’ actions in admiralty are successful, they might still face the possibility of
having the amount of compensation to which they are entitled limited. A series of international agreements
are in force in a number of jurisdictions, limiting the liability of ship owners based on the tonnage of their
ships.7 Limitations of this kind are well established – there is even evidence of an eleventh century
regime.8 They first appeared in English law in 1734,9 and were extended to personal injury claims in
1862.10 However, agreements of this kind need to be periodically updated to raise the upper limits to
* Bevan Marten completed his LLB (Hons) at Victoria University of Wellington in November 2005, where he was Student Editor-in-
Chief of the Victoria University of Wellington Law Review. He has since begun work as a solicitor at the firm of Izard Weston,
having been admitted as a barrister and solicitor of the High Court of New Zealand in September 2006.
1 See for examples Admiralty Act 1973 (NZ) ss 4 and 6; Maritime Transport Act 1994 (NZ) ss 86, 87, 95, 97.
2 See for examples Fournier v The Ship “Margaret Z” [1999] 3 NZLR 111; Mitrofanova v The Ship Kursa [1996] 3 NZLR 215.
3 Injury Prevention, Rehabilitation, and Compensation Act 2001 (NZ) s 23.
4 Ministry of Transport, Review of the Shipping and Seamen Act 1952 (Discussion paper, Ministry of Transport, Wellington, 1992) 7.
While this report is almost 15 years old at the time of writing, it represents one of the only discussions available on the topic of
limitation of liability in New Zealand at an official level. It also provides an insight into the current Maritime Transport Act 1994
(NZ), which remains the New Zealand’s key piece of shipping legislation.
5 Convention on Limitation of Liability for Maritime Claims (opened for signature 19 November 1976) 1456 UNTS 221 (1976
Convention) (entered into force 1 December 1986). Forty states are currently parties to this convention: Status of Conventions (2005)
International Maritime Organisation.
6 See generally Soyer, B, ‘Sundry Considerations on the Draft Protocol to the Athens Convention Relating to the Carriage of
Passengers and their Luggage by Sea 1974’ (2002) 33 Journal of Maritime Law and Commerce 519.
7 An important work on the subject is Griggs, P, and Williams, R, (eds), Limitation of Liability for Maritime Claims (3rd ed, 1998).
8 Soyer, B, ‘1996 Protocol to the 1976 Limitation Convention: A More Satisfactory Global Limitation Regime for the Next
Millennium?’ [2000] Journal of Business Law 153, 153; for a general history see Griggs, P, ‘Limitation of Liability for Maritime
Claims: The Search for International Uniformity’ [1997] Lloyds Commercial and Maritime Law Quarterly 369.
9 Responsibility of Shipowners Act 1734, 7 Geo 2, c 15.
10 Merchant Shipping (Amendment) Act 1862, 25 & 26 Vict, c 63.
(2006)
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