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41 1961


Chapter IV


Application to breaches of strict duty.

43. —In determining the amount of contribution or of reduction of damages under subsection (1) of section 34 for contributory negligence the court may take account of the fact that the negligence or wrong of one person consisted only in a breach of strict statutory or common-law duty without fault, and may accordingly hold that it is not just and equitable to cast any part of the damage upon such person.

One-sided periods of limitation.

44. —Where, in any claim for contribution between wrongdoers, or in any case to which subsection (1) of section 34 applies, the defendant avoids liability to the plaintiff by pleading the Statute of Limitations or any other limitation enactment, neither he nor any other person responsible for his acts shall be entitled to recover any damages or contribution from the plaintiff.


45. —(1) Where, in cases falling within sections 16 or 17 or within subsection (1) of section 35, the defendant owing to ignorance of the facts omits to claim the benefit of the provisions therein contained, the defendant, notwithstanding that judgment has been given in the plaintiff's favour, shall have a right to repayment by the plaintiff of such sum as the plaintiff should not have recovered in virtue of the said provisions.

(2) Where, as a result of the failure to obtain satisfaction of any judgment in whole or in part from one wrongdoer, other concurrent wrongdoers are compelled to bear a larger part of the plaintiff's damage than they would otherwise have borne, or are compelled to pay a larger sum by way of contribution than they would otherwise have paid, they shall have a right of recoupment against such wrongdoer to the extent of the difference.

Maritime cases.

46.—(1) (a) Where, by the fault of two or more vessels, damage is caused to one or more of those vessels or to another vessel or to the cargo of any of those vessels or any property on board, and an action is brought for such damage, the liability of each vessel in respect of such damage shall be in proportion to the degree in which such vessel was in fault and accordingly there shall be no right of contribution in respect of such apportioned liability: provided that—

(i) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally among the vessels in fault;

(ii) nothing in this subsection shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law.

(b) For the purposes of paragraph (a) of this subsection the liability of a vessel for damage shall mean the liability of those responsible for the proper navigation and management of the vessel.

(c) Paragraph (a) of this subsection shall not apply to a claim for loss of life or personal injuries.

(2) Where, by the sole or concurrent fault of a vessel damage is caused to that or another vessel or to the cargo or any property on board either vessel, or loss of life or personal injury is suffered by any person on board either vessel, then, subject to subsection (3) of this section, no action shall be maintainable to enforce a claim for damages or lien in respect of such damage, loss of life or injury unless proceedings are commenced within two years from the date when such damage, loss of life or injury was caused; and an action shall not be maintainable to enforce any claim for contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings are commenced within one year from the date of payment.

(3) Any court having jurisdiction to deal with an action to which subsection (2) of this section relates may, subject to any rules of court, extend the period referred to in that subsection to such extent and subject to such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the court or within the territorial waters of the country to which the plaintiff's vessel belongs or in which the plaintiff resides or has his principal place of business, extend any such period to an extent sufficient to give such reasonable opportunity.

(4) For the purposes of subsections (1) and (2) of this section, references to damage caused by the fault of a vessel shall be construed as including references to any salvage or other expenses, consequent upon that fault, recoverable at law by way of damages and such expenses shall be deemed to be a damage caused when they are incurred.

(5) The provisions of this section shall be applied in all cases heard and determined in any court having jurisdiction to deal with the case and in whatever waters the damage in question was caused or the salvage services or other expenses in question were rendered or incurred.

(6) This section shall be construed as one with the Merchant Shipping Acts, 1894 to 1952.