2. The Court’s reasoning
The Court’s point of departure is
“that the liability rules in the Maritime Code applies if the damage is ‘not caused by the road carrier, but by some event that could only have occurred in the course of and by reason of’ the carriage by sea” (section 60).
“Caused by the road carrier” clearly must relate not only to the road carrier himself, but also to his subcontractors. However, the Court says that when applying subsection 2, the sea carrier is not included:
“Sea-Cargo, that was engaged to carry the goods by sea, is not relevant here, see Bull, Innføring i veifraktrett [introduction to road carriage law] 2000 page 138. Moreover, the wording of the CMR Convention (1) The Court had previously remarked that subsection 2 incorporates Article 2 no. 1 second and third sentence of the CMR Convention and that the subsection must as a starting point be interpreted in the same manner (section 58). – ‘caused by act or omission of the carrier by road’ – clarifies that the question is whether the road carrier’s acts or omissions caused [the word ‘caused’ emphasised by the Court] the damage. Liability is not to be assessed” (section 62). (2) The last quoted sentence might have been translated as: «A negligence assessment is not required”.
The Court, after having referred to the finding of facts by the Court of Appeal, then concludes that it is clear that the road carrier’s failure to secure the goods for the carriage by road(3) A careful reading of the judgment does not make it obvious that the securing for road transport was substandard (contrary to the road carrier’s obligations) (section 69).“created a risk of damage also during the journey by sea”. However, the mere existence of such risk is not considered sufficient to establish that the damage was caused(4) The Norwegian word used is «forårsaket». by the road carrier (section 68).
The reasoning creates some difficulties. When the Court uses the expression “caused by act or omission”, is it then possible to disregard completely “what ought to have been done”? – e.g, to give information on the status of the cargo, cf. MC Section 258 first sentence:
“If the goods need to be handled with special care, the sender shall in due time give notice thereof, and state the measures which may be required”.
The Court counters such line of reasoning:
“I cannot see the relevance of the road carrier’s omission to inform the crew about the inadequate securing of the goods upon delivery. The cable drum, poorly fastened, was placed on an open trailer. I therefore take it that the sea carrier could easily observe the need of securing” (section 72).
However, the Court continues to state that in any circumstances, it is decisive
“that the damage cannot be deemed to have occurred because the risk created by the road carrier materialised. As I see it, it was the sea carrier’s subsequent omission that triggered (5) The word triggered (Norwegian “utløste”) emphasised by the Court. the damage” (section 70).
The Court’s view is that only the sea carrier could evaluate the necessity of securing measures and take the required actions. Thus, it was the risk created by the sea carrier that materialised and caused the damage (section 71). In other words: The damage was not caused by the road carrier (section 73).
This conclusion brings us to the final question: Was the loss due to an event that could only have occurred in the course of and due to the sea carriage? The Court’s answer is:
“In my view, section 4 subsection 2 of the Road Transport Act must also be interpreted to mean that the damage must have occurred as a result of a particular risk related to this means of transport. I refer to Bundesgerichtshof’s (BGH’s) judgment 15 December 2011 in case I ZR 12/11, which in paragraph 32 shows a similar interpretation of this condition in Article 2 of the CMR Convention” (section 75).
In the German case it is said that typical examples of such events are loss of the vessel, stranding, heavy sea, and salt water contamination. The case concerned fire, and the German Court stated that whether fire on board a vessel falls within this category cannot be answered in general: the particular circumstances are decisive.(6) «Die Frage, ob es sich bei einem Feuer an Bord eines Seeschiffes um ein für dieses Transportmittel typisches Schadensrisiko handelt, lässt sich nicht generell beantworten. Es müssen vielmehr die bekannten Umstände des Schadenshergangs berücksichtigt werden” (section 34).
The Supreme Court held that the heeling of the ship because of the rough sea, which in turn made the load slide off the trailer, was an event under subsection 2. It could only have occurred during carriage by sea, since the risk that materialised can exist only on a ship. And this risk is of such a nature that it demands safety measures beyond those required for carriage by road. Although a loaded trailer may also be exposed to damaging sideways impact on the road, the circumstances causing the impact and the risk in general are completely different. On the road, the risk often arises when the vehicle is exposed to strong and direct wind, to changes of direction at high speed or to irregularities in the road surface. During carriage by sea, the goods are placed on a parked vehicle with a risk of moving or sliding off during the journey. Such events may ultimately also affect the stability of the ship (sections 76 and 77).
The final conclusion was – contrary to the view held by the Court of Appeal – that KN’s liability had to be decided in accordance with the rules of the Maritime Code. The way the case had been presented to the Supreme Court, did not give the Supreme Court sufficient information to determine KN’s liability under the rules of the Maritime Code. Therefore, the judgment of the Court of Appeal was set aside. The decision in the case concerning the recourse claim was also set aside because of the connection between the two cases.