Application
Okiyo Maritime Corp as the Applicant entered an application by way of motion and affidavit, praying for inter alia “an Order authorising the applicant to set up a limitation fund for the sum of Rs. 719,658,463.31 by way of a bank guarantee issued in favour of the respondent” following the grounding of the MV Wakashio off the coast of Mauritius in July 2020 and the resulting oil spill and pollution (bunkering oil).
Issues dealt with by the Supreme Court
The Supreme Court considered whether the owner of the MV Wakashio could establish a limitation fund in the sum of Rs.719,658,436.31 under the Merchant Shipping Act 2007 (the Act) to limit liability following the 2020 grounding and oil spill off Mauritius.
Sections 194, 195 and 204 of the Merchant Shipping Act 2007
The Supreme Court examined sections 194, 195 and 204 of the Act and held that section 195(d) clearly excludes claims for oil pollution damage from limitation of liability, meaning that the Applicant could not limit its liability for environmental damage caused by bunker oil. However, the Supreme Court also held that the existence of oil pollution claims does not automatically prevent the setting up of a limitation fund for other non-oil pollution claims that are legally subject to limitation (such as physical damage or wreck removal claims), provided the fund is used only for claims where limitation can be invoked.
Mauritius is a dualist state
The Supreme Court further reaffirmed that Mauritius is a dualist state and international conventions (including the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC76) and the Bunker Convention) apply only when incorporated into our domestic law.
Observations
The judgment represents a landmark development in Mauritian maritime and environmental jurisprudence inasmuch as:
- it establishes that claims for oil pollution damage are entirely excluded from limitation of liability under Mauritian law, regardless of whether the pollution originates from cargo oil or bunker fuel;
- it strongly reaffirms the dualist constitutional approach to international treaties adopted by Mauritius;
- it demonstrates judicial willingness to balance commercial maritime protections with environmental accountability; and
- it will likely serve as a foundational authority in future litigation involving marine pollution, wreck removal, environmental damage, and maritime insurance claims.
Final notes
The judgment is particularly important in that it clarifies the interaction between domestic maritime legislation, international maritime conventions and environmental liability principles under Mauritian law. It is noted that the Supreme Court adopted a strict interpretation of section 195(d) of the Act, holding that claims relating to oil pollution damage cannot benefit from statutory limitation. At the same time, the Supreme Court recognised that non-pollution maritime claims arising from the same incident may still be subject to limitation and may therefore justify the establishment of a restricted limitation fund.For more information or updates please contact Dev Erriah, the LEX Africa member from Erriah Chambers, in Mauritius on deverriah@intnet.mu or visit www.erriahchambers.com.
