SUMMARY

The Goliath and the Star Centurion judgments are consistent in their outcome that a shipowner cannot limit its liability for wreck removal claims under Article 2(1)(a) of the Convention on Limitation of Liability for Maritime Claims 1976 (the Convention) where the relevant State has exercised its right under Article 18(1) to disapply Article 2(1)(d).

The High Court of Australia’s decision (the Goliath) could be said to provide a more structurally detailed reasoning that locates the material issue squarely in the text and operation of Article 18(1) itself, rather than in the relationship between the sub-paragraphs of Article 2(1).

The HCA’s express departure from the generalia specialibus framework (when a specific provision conflicts with a general provision, the specific provision takes precedence) and the use of the travaux préparatoires (relying on the official records of the negotiations of the convention (travaux)) to confirm ordinary meaning represent a distinct and more detailed analysis than that adopted by the CFA.

For practitioners in jurisdictions that have exercised the Article 18(1) reservation, the HCA’s reasoning provides additional clarity on why and how the reservation achieves its intended comprehensive effect.

INTRODUCTION

The High Court of Australia’s decision in CSL Australia Pty Ltd v Tasmanian Ports Corporation Pty Ltd [2026] HCA 15, handed down on 13 May 2026, (the Goliath) represents the latest apex court pronouncement on a question that has occupied maritime law across multiple jurisdictions:

Can a shipowner limit its liability for wreck removal claims under Article 2(1)(a) of the Convention where the relevant State has exercised its right under Article 18(1) to disapply Article 2(1)(d)?

The High Court reached the same ultimate conclusion as the Hong Kong Court of Final Appeal (CFA) in Perusahaan Perseroan (Persero) PT Pertamina v Trevaskis Ltd (“The Star Centurion”) [2023] HKCFA 20 — namely, that a shipowner cannot limit liability under Article 2(1)(a) — but the two courts arrived at that destination by different reasoning.

THE FACTS

On 28 January 2022, the bulk cement carrier MV Goliath crashed into two harbour tugs, Campbell Cove and York Cove, at the Port of Devonport, Tasmania. The tugs sank in the Mersey River. Tasmanian Ports Corporation Pty Ltd (TasPorts), which owned and operated both the tugs, incurred loss and damage including wreck removal costs.

CSL Australia Pty Ltd (CSL), the owner and operator of the Goliath, sought to limit its liability under the Convention as given the force of law in Australia by section 6 of the Limitation of Liability for Maritime Claims Act 1989 (Cth). Critically, that section provides that the Convention’s provisions, ‘other than paragraphs 1(d) and (e) of Article 2′, have the force of law in Australia — reflecting Australia’s reservation under Article 18(1).

It was common ground that TasPorts’ wreck removal claims fell within the scope of both Article 2(1)(a) (claims for consequential loss resulting from loss of or damage to property) and Article 2(1)(d) (claims in respect of wreck removal). The primary judge held the claims were limitable under Article 2(1)(a); the Full Federal Court reversed; and the High Court dismissed CSL’s appeal.

KEY DIFFERENCES IN REASONING

1. The role of the generalia specialibus non derogant maxim

The CFA placed the maxim at the centre of its reasoning. Keane NPJ described it as ‘a particular expression of a more general principle of statutory interpretation’ – that an instrument should be given effect as a coherent whole. The CFA treated Article 2(1)(d) as the specific provision that, once disapplied, precluded resort to the more general Article 2(1)(a).

The High Court majority (Gageler CJ, Gleeson and Jagot JJ) stated that submissions about the generalia maxim ‘miss the point‘. Their Honours held that the fundamental issue is not one of identifying which of Articles 2(1)(a) or 2(1)(d) is a general or specific provision; rather, it is the interaction of Article 18 and Article 2(1). Gordon and Edelman JJ similarly bypassed the maxim, framing the question instead as a matter of direct textual interpretation of Article 18(1)(a).

2. Interpretive framework: coherent whole versus direct textual analysis of Article 18

The CFA’s reasoning was anchored in the principle that the Convention should be read as a ‘coherent whole,’ emphasising that it would reduce Article 2(1) to incoherence to disapply Article 2(1)(d) while allowing limitation under Article 2(1)(a) for the same expense.

The HCA majority, by contrast, conducted a structural analysis of the interaction between Articles 1(1), 2(1) and 18(1). They reasoned that the ‘rules of this Convention‘ in Article 1(1) must be read as contemplating the possibility of disapplication under Article 18(1), so that claims within the disapplied sub-paragraphs are excluded from Article 2(1) altogether. Gordon and Edelman JJ took a textual approach to Article 18(1)(a), holding that its right of reservation is ‘specific, unqualified and comprehensive,’ and contrasting it with Article 15(1)’s express permission to exclude ‘wholly or partially.’ This comparison – absent from the CFA’s analysis – demonstrated that the Convention’s drafters knew how to permit partial exclusion when they intended it.

3. Whether Article 2(1)(d) is an exclusive code

The CFA described Article 2(1)(d) as ‘comprehensive of any claim in respect of wreck removal and all such claims‘ and ‘unqualified in its scope.’ The HCA majority was careful to clarify that this language should not be understood as meaning Article 2(1)(d) is an ‘exclusive code’ for wreck removal claims, which would be contrary to the subsequent reasoning in The Flaminia that Article 2(1) ‘does not preclude the dual characterisation of claims.’ The HCA confirmed that claims may properly fall within more than one sub-paragraph of Article 2(1) simultaneously, and that the indispensable conceptual foundation of the CFA’s conclusion was not exclusivity but rather the comprehensive effect of the exercise of the Article 18(1) right.

4. The role of The Flaminia

The CFA’s decision predated the UK Supreme Court’s judgment in MSC Mediterranean Shipping Co SA v Conti 11 Container Schiffahrts-GmbH & Co KG MS (The Flaminia) [2025] 1 WLR 1835 and accordingly could not engage with it.

The HCA engaged extensively with The Flaminia, describing it as the ‘inverse’ of the present appeal: in that case, the claim was not within Article 2(1)(a) because it concerned damage to the limiting ship, and the question was whether it could nonetheless be limited under Article 2(1)(e), which had not been disapplied. The HCA used The Flaminia to draw the important distinction between orthodox interpretation (applying the text as it is) and the unorthodox approach of interpreting the Convention to ‘expand upon and protect‘ limitation rights.

5. The Vienna Convention, Article 21

The CFA did not address Article 21 of the Vienna Convention on the Law of Treaties. The HCA did, rejecting CSL’s argument that Article 21(2) – which provides that a reservation ‘does not modify the provisions of the treaty for the other parties to the treaty inter se’ – required Article 2(1)(a) to be construed with a consistent meaning unaffected by any reservation. The HCA held that TasPorts’ approach does not alter the meaning of Article 2(1)(a); it merely gives effect to the interaction between Articles 1(1), 2(1) and 18(1) where the right of reservation has been exercised.

6. Travaux préparatoires

The CFA declined to use the travaux as a supplementary means of interpretation on the basis that there were no ‘truly feasible alternative interpretations’ of the Convention.

Both sets of reasons in the HCA used the travaux to confirm the ordinary meaning of the text. The majority found that the travaux disclosed a ‘common assumption of functional equivalence’ between excluding claims under Article 3 and reserving the right under Article 18(1) – that is, for an individual State Party exercising the reservation, the effect would be the same as if Article 2(1)(d) and (e) had been relocated to Article 3 (which excludes claims from limitation entirely). Gordon and Edelman JJ reached the same conclusion on the travaux, noting there was no indication that delegations intended any different result between the two options.

7. Article 18(1)(b) and the 1996 Protocol

The CFA did not examine Article 18(1)(b) (introduced by the 1996 Protocol) as contextual support for interpreting Article 18(1)(a). Gordon and Edelman JJ in the HCA relied on Article 18(1)(b) – which permits States to exclude ‘claims for damage‘ within the meaning of the 1996 Hazardous and Noxious Substances Convention – reasoning that both sub-paragraphs must have the same operative effect. To give them different operations, as CSL’s case would require, would be inconsistent with the ordinary and common sense meaning of their shared structure.

HWLE Lawyers assisted TasPorts’ P&I Club, The Shipowners Club.

This article was written by Joe Hurley Partner and Jesper Martens, Special Counsel.