1. Liability of the Ship Operator
Article 405
The ship operator of a ship shall be liable for obligations arising from the navigation and the employment of the ship, unless otherwise specified by this Law.
Article 406
The ship operator (that for the purpose of this part of the Law includes the owner of the ship, the charterer and the manager of the seagoing ship) and the salvor, as defined in this article, may limit their liability in conformity with the provisions of this part of the Law.
The salvor is the person that offers services with direct involvement in the operation of salvage or assistance. The operation of salvage and assistance comprises also the acts referred to in article 408, paragraph 1, point (d), of this Law.
If a claim referred to in article 408 of this Law is set out against a person for whose acts, omissions or defaults the ship operator or salvor is liable, the person shall be entitled to avail himself of the limitation of liability in conformity with this part of the Law.
The liability insurer for claims subject to the limitation according to the provisions of this Law, shall be entitled to avail himself of the benefit of this part of the Law to the same amount as the insured person.
Reference to the limitation of liability does not imply a recognition of the liability.
Article 407
The master, other members of the crew and other persons engaged by the ship operator, if they are liable for the claim referred to in article 408 of this Law, may limit their liability according to articles 410 to 416 of this Law.
Article 408
With a restriction to the application of articles 409 and 410 of this Law the following claims are subject to the limitation of liability, regardless of the grounds for liability:
( a) Claims resulting from loss of life or personal injuries, from loss or damage of property (including also damage to harbour facilities, basins, navigable waterways and navigational marks) that have occurred on board or in the direct involvement with the employment of the ship or in the operation of salvage (rendering assistance), and as from additional damages arising from the same;
(b) Claims resulting from any damage to cargo, passengers and their luggage caused by delay in the carriage by sea;
(c) Claims resulting from other damages caused by breach of non-contractual rights arising directly from the employment of the ship or from the operation of salvage and assistance;
(d) Claims set out by other persons, and not by the persons subject to liability, for measures undertaken with the purpose of preventing or reducing damage for which the person being responsible may limit his liability
according to this part of Law, and as for additional damages caused by the measures undertaken:
The claims mentioned in paragraph 1 are subject to the limitation of liability even if a legal action has been taken, on contractual or non-contractual basis, on the basis of recourse or guarantee. However, the claims referred to
in paragraph 1, point (d), are not subject to the limitation of liability to the extent that they refers to indemnity on the basis of the contract with the person subject to liability.
Article 409
This part shall not apply to:
(a) Claims on account of salvage and assistance or contribution in general average;
(b) Claims resulting from damages prescribed by provisions of chapter V, part IX, f this Law;
(c) Claims subject to an international convention or a national law governing or banning the limitation of liability for nuclear damages;
(d) Claims prescribed by provisions of chapter VI, part IX, of this Law;
(e) Claims of persons in the ship operator's or salvor's service whose assignments are related to the ship employment or to the operation of salvage and assistance, including the claims of their heirs, successors in title or other persons giving grounds for such claims.
Article 410
The ship operator’s right to avail himself of the limitation of liability provided in article 408 of this Law shall be forfeited if it is proved that the damages arose as the result of acts or omissions which the ship operator performed willfully or by gross negligence with the knowledge that the damages could probably arise.
The ship operator may not limit his liability for damages resulting in loss of life or personal injury of persons in the service of the ship operator.
Article 411
As an exception to provisions of article 412 of this Law, the limits of liability for claims arising from one and the same occurrence shall be calculated as follows:
(a) For claims resulting from loss of life or personal injury:
(i) 333,000 accounting units of Special Drawing Rights for a ship whose tonnage does not exceed 500 tons
(ii) for a ship whose tonnage exceeds 500 tons the following sum shall be calculated as an addition to the amount given in subparagraph (i):
- 500 accounting units of Special Drawing Rights for each ton of the ship’s tonnage from 501 to 3,000 tons
- 333 accounting units of Special Drawing Rights for each ton of the ship=s tonnage from 3,001 to 30,000 tons - - 250 accounting units of Special Drawing Rights for each ton of the ship=s tonnage from
30,001 to 70,000 tons,
- 167 accounting units of Special Drawing Rights for each ton of the ship=s tonnage exceeding 70,000 tons;
(b) in respect of other claims,
(i) 167,000 accounting units of Special Drawing Rights for a ship whose tonnage does not exceed 500 tons;
(ii) for a ship whose tonnage exceeds 500 tons the following sum shall be calculated as an addition to the amount given in sub-paragraph (i):
-167 accounting units of Special Drawing Rights for each ton of the ship=s tonnage from 501 to 30,000 tons
- 125 accounting uni?s of Special Drawing Rights for each ton of the ship=s tonnage from 30,001 to 70,000, and
- 83 accounting units of Special Drawing Rights for each ton of the ship=s tonnage exceeding 70,000 tons.
When the sum appropriated to the payment of claims referred to in this article and calculated according to paragraph 1, point (a), is insufficient to pay the claims in full, the unpaid balance of such claims shall be paid together with the claims referred to in paragraph 1, point (b), from the sum appropriate to the payment of the said claims.
For a salvor not performing the operation of salvage from the ship or a salvor acting exclusively on board the ship to which or in relation to which salvage services are offered, the limitation of liability shall be calculated to the tonnage of 1,500 tons.
For the purpose of this part of the Law the tonnage of the ship is the gross tonnage ascertained under the rules of tonnage measurement contained in annex I of the International Convention for the Tonnage Measurement of Ships, 1969.
Article 412
For claims resulting from loss of life or personal injuries of a passenger on board and arising from the same occurrence, the limit of the ship operator’s liability amounts to 46,666 accounting units of Special Drawing Rights multiplied by the number of passengers the ship is entitled to carry according to the navigational list; but at the maximum of 25 million Special Drawing Rights.
In the spirit of this article, "claims resulting from loss of life or personal injuries of a passenger on board" means any claim set out by a person carried by the ship or on his account:
(b) Who by the ship operator’s consent accompanies a vehicle or live animals under a contract for the carriage of goods.
Article 413
The sums specified in articles 411 and 412 of this Law are converted into the local currency in conformity with the value of the currency on the date the fund was constituted and payment shall be effected or and adequate guarantee
offered.Article 414
The limits of liability provided in article 411 of this Law shall comprise the aggregate of claims arising from the same occurrence and apply:
(a) To the person or persons mentioned in paragraph 1, article 406 of this Law and to any person for whose acts, omissions or defaults the said person or persons are liable; or
(b) To the owner of the ship offering services of salvage (or assistance) from the ship and to the salvor or salvors acting from the ship and to any person for whose acts, omissions or defaults the said person or persons are liable; or
(c) To the salvor or salvors not acting from the ship or acting exclusively on the ship to which or in relation to which the service of salvage (or assistance) is offered and to any person for whose acts, omissions and defaults he/they are liable.
The limits of liability specified in article 412 of this Law shall comprise the aggregate of claims arising from the same occurrence and apply to the person or persons mentioned in paragraph 1, article 406 of this Law relative to the ship referred to in article 412 of this Law against any person for whose acts, omissions or defaults the said person or persons are liable.
Article 415
The ship operator may be entitled to the limitation of liability even in case the limitation fund has not been constituted according to article 416 of this Law.
If the ship operator is entitled to the limitation of liability and the limitation fund has not been constituted, the provision of article 417 shall be applied accordingly.
Article 416
In a dispute any person being subject to liability may constitute a fund.
The fund shall be constituted to the amount evaluated in conformity with articles 411 and 412 of this Law as applied to claims for which the said person may be liable, increased by interest charges running from the date of the occurrence, giving rise to liability, until the date of the constitution of the limitation fund.
limitation of liability may be entitled.
The fund may constituted either by depositing a sum or giving a guarantee.
The fund constituted by one of the persons mentioned in paragraph 1, point (a), (b) or (c) or article 414 of this Law, or by his insurer, shall be considered to have been constituted by all the persons mentioned in paragraph 1, point (a), (b) or (c) or article 414, paragraph 2, of this Law.
Article 417
As an exception to the provisions of paragraphs 1, 2 and 3, article 411, and article 412 of this Law, the fund shall be shared among the creditors in proportion to the sum of their recognized claims relative to the fund.
If prior to the distribution of the fund, the person subject to liability, or his insurer, has settled the net claim relative to the fund, the person is subrogated to the amount paid for the benefit of the rights to which the defrayed claimant is entitled according to this part of the Law. Excluding the persons mentioned above, other persons may be entitled to the right of subrogation referred to in paragraph 2 for each sum of indemnity paid, but solely to the amount the subrogation is granted.
If the person subject to liability, or other person, finds that the sum for indemnity should be subsequently paid in whole or in part, but that he could have availed himself of the right of subrogation according to paragraphs 2 and 3 and provided the payment had been effected before the fund was distributed, the court may order that an adequate sum be temporarily set aside to enable the said person to benefit from the fund thereafter.
Article 418
If the limitation fund has been constituted according to article 416 of this Law, not any person having set out a claim relative to the fund may have the right for such a claim in respect of other property of the person entitled to the constituted fund.
Being the limitation fund constituted according to article 416 of this Law, any ship or other property appertaining to the person entitled to the fund and being under detection or seizure on account of a claim coverable from the fund or other offered security shall be released and if the fund has been constituted abroad, a local court may release the property or security provided it is judged that the creditors' interest are adequately safeguarded. Such a release shall be ordered at any time provided that the limitation fund has been constituted:
(a) In the port of occurrence of the event, or - if it occurred off the port boundaries - in the next (first) intermediate port; or
(b) In the port of discharge for claims resulting from loss of life or personal injuries; or (c) In port of discharge for claims resulting from damages: or
(d) In the country of detention.
The provisions of paragraphs 1 and 2 shall be applied only if the creditor may set out his claim for the limitation fund with the court that administers that fund and if the claim can be actually settled therefrom.
Article 419
The provisions of articles 406 to 476 of this Law shall also apply to boats, provided that for the application of the provisions a boat is considered a ship of 500 gross tonnage.
This part of the Law shall not apply to: (a) hydrofoils and (b) rigs/platforms employed for researches and the exploitation of natural resources of the sea bed and its subsoil.
Article 420
The provisions of articles 406 to 476 of this Law shall also apply to warships, provided that the capacity of the warship is determined in terms of displacement, one ton mentioned in article 411 of this Law shall equal two tons of displacement.
2. Proceedings for the Limitation of the Ship Operator’s Liability
Article 421
Non-litigious proceedings for the limitation of the ship operator’s liability shall be conducted by a sole judge of the court having territorial jurisdiction.
Unless otherwise specified by this Law, the provisions of the Civil Procedure Act shall correspondingly apply to the proceedings referred to in paragraph 1 of this article.
If the ship or boat involved in the occurrence, for which proceedings for the limitation of the ship operator’s liability are conducted, is registered in the Croatian Register of ships or a in a record of boats, the court in whose area ship is registered or the boat recorded, shall have territorial jurisdiction.
If the ship or boat involved in the occurrence for which proceedings for the limitation of liability of a ship operator of foreign nationality are conducted, the court in whose area the ship was arrested, and if it was not arrested, the court, in whose area assets for the constitution of the limitation fund have been deposited, shall have territorial jurisdiction.
No agreement between the parties on territorial jurisdiction shall be allowed in proceedings for the limitation of the ship operator’s liability.
Article 422
Proceedings for the limitation of the ship operator’s liability shall be instituted on the proposal of the person who is according to the provisions of this Law entitled to limit his liability.
A proposal for instituting proceedings for the limitation of the ship operator’s liability shall, in addition to general data which must be stated in every application, also contain:
(1) A description of the occurrence giving rise to the claim for which the limitation of liability is being proposed;
(2) The ground for and the amount of limited liability;
(3) The way the proposer is ready to constitute the limitation fund (by depositing cash or by giving another adequate security) and in particular to ensure the real value of the fund (by time deposit of resources in a reliable bank etc.)
(4) A list of known creditors with the designation of their place of business or residence; (5) Information on the kind and the likely amount of the claims of known creditors.
A proposal for instituting proceedings for the limitation of the ship operator’s liability must be accompanied by documents proving the tonnage of the ship according to the provisions of article 411, paragraph 4, of this Law.
Article 423
If the court finds that the requirements prescribed by this Law which entitle the proposer to limit his liability have not been met, it shall render a ruling rejecting the request submitted.
If the court finds that the resources of the limitation fund will not be actually available for the benefit of the claimants, it shall reject the request for the constitution of the fund; however, the proceedings pertaining to the limitation of liability shall persist, as though the proposer invoked the limitation of liability without intention of constituting a fund, provided the requirements prescribed by this Law which entitle the proposer to limit his liability have been met.
Article 424
If the court is satisfied that the request made in the proposal for instituting proceedings for the limitations of the ship operator’s liability complies with the provisions of this Law pertaining to the requirements for the limitation of liability, it shall render a ruling approving the limitation of liability.
If the court finds that the assets of the proposed limitation fund will be actually available for the benefit of the creditor, it shall render a ruling approving the constitution of the limitation fund.
In the ruling referred to in paragraph 2 of this article the court shall summon the proposer within 15 days to submit to the court proof that he has made available to the court the assets approved for the constitution of the limitation fund, and that he has deposited in advance a specific sum necessary to cover the costs that will be incurred in the course of or in connection with the proceedings.
If the proposer fails to proceed in conformity with the provision of paragraph 3 of this article, the court shall render a ruling setting aside the ruling on the constitution of the limitation fund.
In the ruling the court shall warn the proposer of the consequences of his failure to proceed according to the provision of paragraph 4 of this article.
Article 425
The ruling pertaining to the limitation of the proposer's liability shall be rendered by the court without deferment.
The limitation fund shall be considered to have been constituted on the date when the proposer submits to the court proof that he has proceeded in accordance with the provision of article 424, paragraph 3, of this Law. A ruling ascertaining that the limitation fund has been constituted shall be rendered by the court within 24 hours from receipt of proof as referred to in paragraph 3 of this article.
The ruling pertaining to the limitation of liability and the constitution of the limitation fund shall be published in the Official Gazette (Narodne novine, Republika Hrvatska), on the court's notice board and, if necessary, also in some other adequate manner.