LIMITATION OF LIABILITY: Whether failure to provide certificates and valid licenses can deny a ship owner the right to limit his liability  

 

 Anonymous
Joined: 50 years ago
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01/07/2019 3:04 am  

"The Appellant submitted that the findings of the Court below were perverse because it did not take cognizance of the inability of the Respondent to exhibit their licenses and permits including Environmental Impact Assessment Certificate. In as much as I agree that the Respondent should possess valid licences and permits, the excuse given that it is an agent of a disclosed principal is a lame excuse and untenable. To possess valid permits and licenses would mean the vessel is fit for the purpose and in that sense, the point being made by the Appellant is valid but for its failure to provide the nexus and evidence between valid licenses and the causal of the damage. The Court below found that loss or damage did not result from the ship owner's personal act or omission. Secondly, that the loss or damage did not result from acts of his servants acting within the scope of their employment committed with intent to cause such loss or damage or recklessly and with knowledge that such loss would probably result. To prove either of the two conditions requires evidence which is lacking in this instance. Failure to provide certificates and permits alone cannot prove the onerous duty imposed by the law to deny a ship owner limiting his liability. There is need for evidence to prove that the vessels are not sea worthy. The examples of unseaworthiness of a vessel given by the Appellant are stated thus: i. An incompetent crew ii. A crew which is insufficiently instructed or insufficient in numbers iii. Out of date charts iv. Insufficient bunkers for the voyage (depends on type of charter party) v. Stowage which affects safety of the ship vi. Deficient systems ashore or on board vii. The absence of documentation required by law (including local laws for the satisfactory prosecution of the contemplated voyage e.g. a deratting certificate." in MONDINVEST LIMITED v. DREDGING ENVIRONMENTAL AND MARINE NV Suit No: CA/L/531/2016 Per NIMPAR, J.C.A. (Pp. 27-29, Paras. F-D)


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