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. 1 The analysis of the three limitation Conventions supports such distinction and suggests that the LLMC 1996 Convention 2 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, by virtue of Art 71, are insufficiently clear to override 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 3 is also discussed. The English law position, that the limitation law applicable was that of the forum, appears to have been changed by Rome II. It is concluded that the operation of the international limitation regimes is likely to be disrupted.