Barde, A S v ABB Power Systems & Ors [1995] FCA 828

Barde, A S v ABB Power Systems & Ors [1995] FCA 828

Article 4 must be given a real operation within the Convention. Because Article 11 confines the fund to claims in respect of which limitation can be invoked, and Article 13 operates only where the claimant may claim against an actually available fund, it would be premature to release the vessel or security merely on constitution of a fund where a claimant seeks to establish conduct barring limitation. The first respondent was entitled to have the Article 4 issue determined before the applicant obtained the declaration and release consequences sought.

Jurisdiction
Australia
Judgment Date
17 October 1995
Procedural Posture
Admiralty Application for Declaration of Entitlement to Limit Liability for Maritime Claims / Separate Determination of Questions Under Order 29 Rule 2 Before Final Hearing
Outcome
Application for the declaration and release consequences sought was not granted at this stage; the matter was stood over for orders and directions after reasons.
Legal Topics
['constitution of Limitation Fund' 'release of Arrested Vessel or Security' 'conduct Barring Limitation' 'convention on Limitation of Liability for Maritime Claims 1976' 'action in Rem']
['shipping and Navigation' 'admiralty' 'limitation of Liability for Maritime Claims'] ['constitution of Limitation Fund' 'release of Arrested Vessel or Security' 'conduct Barring Limitation' 'convention on Limitation of Liability for Maritime Claims 1976' 'action in Rem']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Admiralty Application for Declaration of Entitlement to Limit Liability for Maritime Claims / Separate Determination of Questions Under Order 29 Rule 2 Before Final Hearing

Legal Issues

  1. 1 ['Whether, after constitution of a limitation fund, the vessel or any security given must be released under Article 13 Rule 2 notwithstanding that the Court has not determined an allegation of conduct barring limitation under Article 4.' 'Whether a claimant wishing to establish conduct disentitling a shipowner from limiting liability is entitled to have that issue determined before the shipowner obtains the practical consequences of a limitation fund.' 'Whether the questions reserved should be treated as hypothetical before actual constitution of the fund.']

Ratio Decidendi

Article 4 must be given a real operation within the Convention. Because Article 11 confines the fund to claims in respect of which limitation can be invoked, and Article 13 operates only where the claimant may claim against an actually available fund, it would be premature to release the vessel or security merely on constitution of a fund where a claimant seeks to establish conduct barring limitation. The first respondent was entitled to have the Article 4 issue determined before the applicant obtained the declaration and release consequences sought.

Court Disposition

Application for the declaration and release consequences sought was not granted at this stage; the matter was stood over for orders and directions after reasons.

Orders

  • ['The first three reserved questions were not in dispute and were to be answered in the affirmative.' "It was inappropriate at this stage to make the declaration sought by the applicant before determination of the first respondent's Article 4 contention." 'The matter was stood over for counsel to consider the...