1 Introduction
Section 172a of the Maritime Code regulates claims arising from clean-up efforts relating to maritime accidents, where such claims are subject to the limitation amounts set out in section 175a. These sections - 172a and 175a - constitute domestic rules derived from the 1976 LLMC Convention, in the sense that Norway exercised its right under the Convention to “lift out” this topic of clean-up efforts and legislate it separately. The remaining claims of the Convention not “lifted out” in this way are found in section 172, together with their limitation amounts stated in section 175, which are lower than those of section 175a.
One aspect of the scope of section 172a was recently decided by the Norwegian Supreme Court in the Server-case (HR-2017-331-A). That case concerned, among other questions, the relationship between a shipowner’s limitation rights under sections 172a/175a, and the shipowner’s duty to perform wreck removal pursuant to an order to that effect given by the relevant authorities. The argument by the shipowner was that it was not obliged to follow such an order if/when the costs of wreck removal exceeded the limitation amount under section 175a. The Supreme Court disagreed, holding that a shipowner’s duty to perform wreck removal and its right of limitation in respect of wreck removal costs were two separate issues; the limitation right did not “cap” the shipowner’s duty perform wreck removal. As part of its reasoning the Supreme Court looked into the legislative history of section 172a and the scope of claims intended to be covered by it.
There are, however, other aspects of the scope of section 172a which are also occasionally brought up for discussion. One such aspect concerns the relationship between the category of clean-up costs covered by section 172a and the clean-up related claims forming part of consequential loss to property damage, arguably falling outside the scope of section 172a and within the scope of section 172. This type of question will be discussed in this article, based on the following scenario:
Ship B, owned by shipowner B, collides with ship A, owned by shipowner A. Ship B is solely to blame for the collision. Ship A sinks and shipowner A is ordered by the relevant authorities to remove the wreck. Shipowner A incurs the resultant removal costs and claims indemnity(1) The term «indemnity» has a legal technical meaning under English law which is not entirely equivalent to the linguistic pendant «skadesløsholdelse» in Norwegian law. In the context of our case I would in Norwegian use the term “erstatning” (damages) rather than “skadesløsholdelse”. In the following I will mostly use the more neutral term: claim for recovery. against shipowner B. The question concerns shipowner B’s limitation right for such a claim by shipowner A. Is such a claim subject to the limitation amount in section 175, ref. section 172, or is it subject to the increased limitation amount in section 175a, ref. section172a?
One may perhaps say that the answer to this question simply depends on a proper construction of section 172a, including its intended scope. But as will be seen in the following, the legislative history behind this provision and its relationship to those parts of the Convention from where section 172a was extracted, is fairly complex.