3 Some reflections on the significance of section 179 of the Code
Given the above conclusion, there is limited value in speculating what the position would have been if we had held that shipowner A’s claim for recovery of costs for wreck removal was not subject to shipowner B’s right of limitation under section 172a. If we were nevertheless to lend some thoughts to such a scenario, the following might be mentioned.
If not covered by section 172a, then shipowner A’s claim for recovery of costs for wreck removal would be covered by section 172. That would, in turn, mean that we are within the rules of the Convention - in other words, we are outside the scope of those rules of the Convention which allow for contracting States to promulgate their own rules in respect of clean-up costs relating to maritime accidents.
Going back to our example, we now assume that shipowner B rather than shipowner A was ordered by the authorities to remove the wreck of ship A, as could conceivably happen, by reason of shipowner B being liable for the collision resulting in the sinking of ship A.(1) For the purpose of the example we disregard the fact that in practice the owner of the wreck would be the party subject to an order for removal of the wreck, as under the Pollution Act section 37 second paragraph. If we further assume that shipowner B would not be entitled to bring its own costs of wreck removal as part of the overall claims subject to limitation - contrary to what follows from section 179, see below - it might be viewed as unreasonable that shipowner B should “benefit” from the wreck removal order instead being directed towards shipowner A, and with shipowner B being entitled to limit shipowner A’s claim for recovery against shipowner B.
This example would not “fit” under the Maritime Code, by reason of the fact that section 179 expressly allows a liable shipowner to bring his own wreck removal costs as part of the claims which are subject to limitation. But, again, section 179 refers to claims falling within the scope of section 172a, so that section 179 would not apply if the recovery claim in our example were to fall within 172 rather than within 172a.
Moreover, it should be noted that this section 179 is questionable in terms of Norway’s right of reservation under the Convention. Article 18 of the 1976 Convention (on the relevant point not being amended by the 1996 Protocol) states:
“1. Any State may, at the time of signature, ratification … or at any time thereafter, reserve the right:
To exclude the application of Article 2, paragraphs 1 (d) and (e);
[…]
No other reservations shall be admissible to the substantive provisions of this Convention.”
Article 2, 1 (f) is therefore not made part of such a right of reservation, and this sub-section (f) provides for a right of limitation relating to “claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability.. .”
The reason why the person liable was disallowed from bringing his own costs as part of the overall claims subject to limitation was that, during the Diplomatic Conference of the 1976 Convention, it was considered immoral that such liable party should benefit from his own mischief in this way (NOU 1980:55 page 15-16). This topic created, however, quite an amount of discussion in connection with the legislation of the Norwegian national rules (sections 172a etc.), which ended up with a provision contrary to Article 2, 1 (f) by way of section 179. The way this apparent conflict with the Convention is justified by the legislator seems to be along the lines that the binding effect of Article 2 is restricted to those sub-provisions which regulate the nature of claims which are subject to limitation, and that sub-paragraph (f) may be seen as a provision different in kind. Still, it is surprising that the relationship between the enacted section 179 and the clear wording of Article 18 of the Convention was not brought up for discussion, neither by the Commission nor by the Ministry.(2) See NOU 1980: 55 page 40 and 46, and Ot prp nr 79 (2004-2005) pages 26 et seq.
We shall not go further into that topic as it is a remote aspect of the question put at the opening of this article - but it may nevertheless be worth mentioning that if a case were to be brought under Norwegian law, involving the interest of a contracting State (e.g. through the vessel’s flag), there may be a question as to whether section 179 should be set aside as being contrary to Norway’s obligations under the Convention.(3) Which would mean contracting States to the 1996 Protocol. On the other hand, if only domestic interests were to be involved, this type of question would clearly not arise.