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Lloyd's Maritime and Commercial Law Quarterly

ENGLISH SHIPPING LAW Stephen Girvin * CASES 161. Bahamas Oil Refining Co International Ltd v The Owners of the Cape Bari Tankschiffahrts GmbH & Co KG (The Cape Bari) 1 Limitation of liability—entitlement to contract out—whether parties actually agreed to do so—LLMC 1976, Art.2 While berthing at Freeport on 25 May 2012, the Cape Bari collided with Sea Berth No 10, owned by Bahama Oil Refining Co International Ltd (“BORCO”). Following the collision, BORCO claimed damages of US$22m from the vessel’s owners. Immediately prior to the berthing operation, the master had signed “Conditions of Use of Jetties, Sea Berth and Inner Harbour Berth at Freeport, Grand Bahama”, cl.4 of which provided that “If in connection with, or by reason of, the use or intended use by any vessel of the terminal facilities or any part thereof, any damage is caused to the terminal facilities or any part thereof from whatsoever cause such damage may arise, and irrespective of weather [sic] or not such damage has been caused or contributed to by the negligence of BORCO or its servants, and irrespective of whether there has been any neglect or default on the part of the vessel or the Owner, in any such event the vessel and the Owner shall hold BORCO harmless from and indemnified against all and any loss, damages, costs and expenses incurred by BORCO in connection therewith. Further, the vessel and her Owner shall hold BORCO harmless and indemnified against all and any claims, damages, cost and expenses arising out of any loss, damage or delay caused to any third party arising directly or indirectly from the use of the terminal facilities or of any part thereof by the vessel … ” The shipowner claimed that it was entitled to limit its liability to 11,012,433 Special Drawing Rights (SDRs), approximately US$16.9 million plus interest, under the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989 of the Bahamas, 2 * MPA Professor of Maritime Law, Director, Centre for Maritime Law, Faculty of Law, National University of Singapore. I acknowledge the research assistance of Dr Alex Wang Feng, former Postdoctoral Fellow, Centre for Maritime Law. The following abbreviations are used: Athens Convention: Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974; CPR: Civil Procedure Rules; LLMC 1976: International Convention on Limitation of Liability for Maritime Claims 1976; and LLMC 1996: LLMC 1976 as amended by 1996 Protocol. 1. [2016] UKPC 20; [2016] 2 Lloyd’s Rep 469 ; [2017] 1 All ER (Comm) 189 (PC: Lord Neuberger; Lord Mance; Lord Clarke; Lord Sumption; Lord Toulson); noted S Allison [2016] LMCLQ 495 ; DR Thomas (2016) 22 JIML 443; rvsg Case #220 of 2013 (Bahamas CA: Allan P; Blackman & Adderley JJA); rvsg (9 Aug 2013) Unreported (Bahamas SC: Longley SJ). 2. CH.281. 104

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