The effect of European regulations on the jurisdiction and applicable law for Limitation of Liability proceedings

This paper discusses jurisdiction and applicable law in limitation proceedings. It is argued that limitation proceedings can be categorised into, at least, three separate groups: proceedings determining the right to limit liability itself; proceedings concerning the establishment of the limitation fund; and proceedings for the release of secured assets after a limitation fund has been established. The analysis of the three limitation conventions supports such distinction and suggests that the 1996 LLMC Convention does not contain jurisdictional rules in respect of the first category but contains jurisdictional rules in respect of the establishment of the limitation fund. These rules are not uniform between Contracting States and are discretionary in character. Accordingly, we conclude that the jurisdictional arrangements contained in the international conventions are too weak and unclear to override, by virtue of Article 71, the other jurisdictional provisions of Brussels I. The law applicable to limitation of liability with respect to non-contractual obligations under the operation of the Rome II Regulation is also discussed. The English law position that the law applicable was that of the forum appears to have been changed by Rome II. We conclude that the operation of the international limitation regimes is likely to be disrupted