DS Venture Ltd v Tonga Cable Ltd [2020] TOSC 113; CV 68 of 2019 (22 December 2020)

IN THE SUPREME COURT OF TONGA ADMIRALTY JURISDICTION NUKU’ALOFA REGISTRY CV 68 of 2019
BETWEEN:
DS VENTURE LIMITED	Plaintiff
-and-
TONGA CABLE LIMITED	Defendant
-and-
All persons claiming, or being entitled to claim, for any loss and/or damage arising in any way from damage to the Tongan- Fiji and Tongan domestic cables alleged to have been caused by the anchor of the DUZGIT VENTURE on its entry into the port of Nuku’alofa, Tonga on 20 January 2019.

ORDER LIMITING THE PLAINTIFF’S LIABILITY UNDER SECTION 2 OF SHIPPING (LIMITATION OF LIABILITY ACT) 1980

BEFORE:	LORD CHIEF JUSTICE WHITTEN QC
Counsel:	Messrs P. David QC, M. McCarthy and W. Edwards for the Plaintiff. Messrs J. McBride and P. Bloomfield for the Defendant.
Date of order:	22 December 2020

AFTER CONSIDERING the Statement of Claim dated 20 December 2020, the Statement of Defence and Counterclaim dated 17 January 2020, the memorandum of counsel for the Defendant dated 12 November 2020 withdrawing the Defendant’s opposition to the Plaintiff’s application for a limitation decree and the memorandum of counsel for the Plaintiff dated 27 November 2020,

AND FOR THE REASONS set forth in the Ruling herein of even date,

IT IS HEREBY ORDERED THAT:

1. The Plaintiff, as registered owner of the vessel known as the ‘Duzgit Venture’ (“the vessel”) is entitled to limit its liability in relation to all claims for loss or damage which are subject to the provisions of section 2(d) of the Shipping (Limitation of Liability Act) Act 1980 (“the Act”) arising as a result of loss or damage caused to the undersea Tongan-Fiji and Tongan domestic cables by the anchor of the vessel on its entry into the Port of Nuku'alofa on 20 January 2019 (“the incident”).
2. As the limitation tonnage of the vessel is 2,166 tonnes, the Plaintiff shall not be liable for any amount above TOP$859,403.82 in respect of any claim for loss and damage arising from the incident.
3. The Plaintiff has established a limitation fund by filing a letter on behalf of the shipowner’s insurer, The Britannia Steam Ship Insurance Association Ltd, undertaking to pay the aggregate of all claims arising from the incident up to the said limit of liability, together with interest of TOP$93,003.98, making a total limitation fund of TOP$952,407.70 for all claims under s.2(d) of the Act.
4. All proceedings in relation to the incident pending in this Court or before any other Court shall be stayed, pending the claims proceedings to follow the advertising protocol the subject of orders 5 and 6 below.
5. The Plaintiff shall arrange for the Public Notice annexed hereto to be advertised between 11 and 23 January 2021, in English and the Tongan language, in one edition of each of the:
   • (a) Talaki newspaper;
   • (b) Taimi ‘o Tonga newpaper; and
   • (c) Matangi Tonga online newspaper.
6. By 5 February 2021, the Plaintiff shall file an affidavit deposing to compliance with order 5 above and exhibiting copies of the three advertisements.
7. A directions hearing will be conducted on 9 April 2021 at 9 AM at which any further directions for the conduct of the claim proceedings will be given.
8. The plaintiff is to pay the defendant's costs of and incidental to the limitation proceedings up to and including 10 July 2020. Thereafter, and with the exception of the costs order made on 18 September 2020, each party shall each bear its own costs.
9. There is liberty to apply in respect of the orders in this decree.
   

NUKU’ALOFA		M. H. Whitten QC
22 December 2020		LORD CHIEF JUSTICE

ANNEXURE

PUBLIC NOTICE

Concerning damage caused to the undersea Tonga-Fiji and Tongan domestic communications cables by the ‘Duzgit Venture’ on its entry into the port of Nuku'alofa on 20 January 2019.

NOTICE OF ORDER LIMITING LIABILITY OF PLAINTIFF UNDER THE SHIPPING (LIMITATION OF LIABILITY) ACT 1980

IN THE SUPREME COURT OF TONGA ADMIRALTY JURISDICTION NUKU’ALOFA REGISTRY	CV 68 of 2019
BETWEEN:
DS VENTURE LIMITED	Plaintiff
-and-
TONGA CABLE LIMITED	Defendant
-and-
All persons claiming, or being entitled to claim, for any loss and/or damage arising in any way from damage to the Tongan- Fiji and Tongan domestic cables alleged to have been caused by the anchor of the DUZGIT VENTURE on its entry into the port of Nuku’alofa, Tonga on 20 January 2019.

____________________________

Upon the granting of a decree limiting the liability of the plaintiff, the owner of the Duzgit Venture, under section 2(d) of the Shipping (Limitation of Liability) Act 1980 on 22 December 2020, the Court has ordered that the Plaintiff is not liable for any amount above TOP $859,403.82 plus interest of TOP$93,003.98, making a total of TOP$952,407.70 for all claims in respect of the loss or damage to any property or the infringement of any rights through the act or omission of any person (whether on board the ship or not) in the navigation or management of the ship or through any other act or omission of any person on board the ship as a result of damage caused to the undersea Tonga-Fiji and Tongan domestic cables when the anchor released from the Duzgit Venture on its entry into the port of Nuku'alofa on 20 January 2019 ("the incident").

TAKE NOTICE THAT:

All parties with claims against the Plaintiff arising from the incident have until 26 March 2021 to file any claim and/or to make any application to set aside the decree limiting the plaintiff's liability.

Any such claims or applications must be filed at the office of the Supreme Court of Tonga, Nuku'alofa Admiralty Registry, situated at Fatafehi Road, Nuku'alofa, Tonga (case number CV 68 of 2019).

After 26 March 2021, no claim may be filed or application made save with the leave of the Registrar.

Any person who has filed a claim or application in accordance with the above is to attend a directions hearing at the Supreme Court (court room No. 1), in person or by legal representative, at 9 a.m. on 9 April 2021.

AND FURTHER TAKE NOTICE THAT:

By order of the Court dated 31 January 2020 in the above court proceedings, and upon lodging a letter of undertaking with the Court by The Britannia Steam Ship Insurance Association Ltd, any other proceedings in relation to the above incident pending in the Supreme Court of Tonga or before any Court are stayed.