4 De lege ferenda - or a common sense discussion
Before investigating the reasons given by the Supreme Court, it is - in my view - useful to mention some of the arguments that would have required consideration, if the law had been open. In short: what does common sense indicate?
At the outset, it is important to mention that it is possible to agree on choice of law in a contract for a mate’s services. There are, however, certain safety mechanisms, protecting the mate against preposterous results (briefly considered below in 5.5).
Let us start with the basics: we have a Norwegian citizen engaged by a Norwegian company to serve as a mate on a ship to be designated by the Norwegian shipping company.
Of course, there is no slave-master relationship here, but clearly the mate is the weaker of the two parties, even where the shipping company is a minor one. It would appear reasonable that the shipping company should make it clear for the person to be employed that his rights and obligations are not necessarily dependent upon Norwegian law. In our case, the shipping company made Antiguan law applicable by choosing the vessel on which the mate should serve. If the company had chartered a vessel from, say, India or Madagascar, the mate would, if necessary, have had to make himself conversant with one of those countries’ laws.
I say nothing detrimental to Antiguan and Indian law or the law of Madagscar. They are illustrations of unpredictability for our mate. In all fairness, the company should have made it clear for the mate that he could not expect that his home law - Norwegian law - would necessarily apply.
In my view there is also another objection to Antiguan law - once again, I am not suggesting in any way that Antiguan law is substandard. When the employer - the shipping company - pleads that the dismissal is acceptable under Antiguan law, a heavy burden is placed on the mate contesting the dismissal. It is much easier for the shipping company, than for a Norwegian sailor, to obtain relevant information in such a form that it will be accepted by the Norwegian Court. Without the financial support of a union, it will be virtually impossible for the mate to contest the dismissal. To put it very strongly: when the company pleads Antiguan law, it might be said that this is tantamount to a denial of justice. The company may know that this man has neither the guts nor the money to put up a fight for his possible rights. I do not say that Eimskip subjectively acted in this way. My point is that there is such a possibility and that the effect may be as indicated.
The most serious objection is, as indicated, the uncertainty: one month on an Antiguan vessel, the next month on a vessel flying another flag. The application of the flag state principle presents further problems if the dismissal is based upon a succession of events while serving on differently flagged vessels. The conclusion is that the predictability, seen from the mate’s point of view, is zero, if he has not been informed beforehand of his employer’s chartering plans!
The underlying difficulty is that the rule of the flag state law was developed at a time when the seaman was engaged for service on a named, identified vessel, with no right for the employer to demand his services on another vessel and, on the other hand, if the vessel was sold or lost, the employment was ended. In Norway this rule was changed in 1985 -primarily for the protection of the seaman.
In any case, the indicated demands of fairness, together with the wording in the contracts, in particular the last one (quoted in section 3 above) would, in my world, be sufficient to find that there was at least a presumption for Norwegian law. Arguments along these lines were rejected by the District Court and the Court of Appeal - essentially because the courts found that the flag law has such a solid standing that the arguments were not sufficient for the application of Norwegian law. This construction issue was not argued before the Supreme Court.