The Supreme Court has ruled that the Attorney General may apply to be heard on a ruling on a dispute over damage to the undersea internet cable on January 20, 2019.
On that date, the Duzgit Venture, a Maltese-registered vessel carrying fuel to Tonga, sailed into Nuku’alofa, the starboard anchor and chain were prematurely released.
As the anchor and chain were being winched back in, a cable was observed caught in the anchor. The cable was one of two undersea communications cables owned by the Defendant connecting Nuku’alofa, Ha’apai and Vava’u within Tonga with Suva in Fiji.
Ropes were used to remove the cable from the anchor.
Tonga Cable Ltd claimed US$1,237,890.06 for damage to the cables.
The owner of the ship, DS Venture Ltd, has claimed that any claims for loss or damages were limited by Section 2 of the Shipping (Limitation of Liability) Act 1980 (SLLA), which provides that:
“The owners of a ship , Tongan , Commonwealth or foreign , shall not , where all or any of the following occurrences take place without their actual fault or privity (that is to say)
(a) where any loss of life or personal injury is caused to any person being carried in the ship;
(b) where any damage or loss is caused to any goods , merchandise or other things whatsoever on board the ship ;
(c) where any loss of life or personal injury is caused to any person not carried in the ship through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship or in the loading, carriage or discharge of its cargo , or in the embarkation, carriage or disembarkation of its passengers , or through any other act or omission of any person on board the ship ;
(d) where any loss or damage is caused to any property (other than any property mentioned in paragraph (b) of this section) or any rights are infringed through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship or in the loading, carriage or discharge of its cargo, or in the embarkation, carriage or disembarkation of its passengers, or through any other act or omission of any person on board the ship, be liable to damages beyond the amounts set forth in the Schedule to this Act .
The ship’s owners argued that the SSLA provided formulae by which to calculate a ship owner’s maximum liability for property and personal claims by reference to the tonnage of the ship multiplied by various amounts of francs.
The owners allege that by application of the formula here, the limit of its liability for the incident is TOP$859,403.82.
Lord Chief Justice Whitten, presiding, said the other relevant was the Shipping Act (1973). Section 3 of the 2016 revised edition applies to all vessels registered and licensed under the Act or regulations on any voyage and in any waters and to every ship in Tongan Territorial waters or in a Tongan port or harbour, and to any ship on which Tongan seamen are employed.
“The Plaintiff has pleaded, that if the Convention on Limitation of Liability for Maritime Claims 1976 and Protocol of 1996 (LLMC) is in force in Tonga, then by the application of the relevant formulae in that Convention, its maximum liability for all claims here will be TOP$3,348,496,” the judge said.
“Accordingly, the Plaintiff seeks a declaration that its liability for the incident is limited to the lower amount calculated by reference to the SLLA; alternatively, the higher amount by reference to the LLMC.”
However, Lord Chief Justice Whitten said that the SLLA provided, that the LLMC would not become the law of Tonga until the Minister had given notice to that effect in the Gazette. This, however, had not been done.
Therefore, if the plaintiff was entitled to a limitation of its liability, the SLLA applied.
“However, as this is a matter both rare in occurrence in Tonga and of some national importance, I will direct that this ruling be served on the Attorney General and reserve liberty to the Attorney General to apply to intervene to be heard on this issue,” the judge said.
“In the event the Attorney General concurs with the parties on this issue, she is kindly requested to file a memorandum to that effect.”
