1 Introduction
In the realm of cargo carriage and shipowners' liability for cargo damage, the relationship between a shipowner's obligation to make the ship seaworthy at the commencement of the cargo voyage, and a shipowner's exemption from liability by nautical fault,(1) 'Nautical fault' is here used as a term of convenience for the relevant fault "in the navigation or in the management of the ship", HVR art. IV 2 a) and MC s. 276. The term may be seen as slightly misleading since it was used in a narrower sense, restricted to navigation, in the Brussels Convention of 1957 on global limitation., see Borchsenius, Noen ord om uttrykket 'Feil eller forsømmelse i navigeringen eller behandlingen av skipet' i konnossementsloven § 4 nr. 2 a, AfS 2 1957 pp. 110 et seq. is potentially complex. Such complexity particularly involves the role of the master. He may in some respects be considered the servant of the shipowner for purposes of making the ship initially seaworthy, with his faults being imputed to the shipowner, while in other respects he may conduct acts of a nautical nature, with his faults not being imputed to the shipowner.(2) The phenomenon of liability exception for nautical fault is in many ways an oddity, out of touch with today's legal reality - nevertheless it seems to persist. The Rotterdam Rules, which dispose of the nautical fault exception and were expected to replace the Hague/Hague-Visby Rules, seem not to be entering into force.
The topic is at the core of the Hague/Hague-Visby Rules (HVR),(3) The abbreviation 'HVR' will be used as a collective term, however with the distinction between the two Conventions (the Hague-Rules and the Hague-Visby Rules) made where the context so requires. being ratified by Norway(4) That is: the Hague-Visby Rules. and incorporated into the Maritime Code (MC). The HVR, aimed at international harmonization of this area of law, are of great prevalence, as they have been ratified by most maritime nations. Hence, case law from such other maritime nations is clearly of relevance when interpreting and applying the HVR, as implemented in the MC, under Norwegian law.
Despite this being so, decisions by the Norwegian Supreme Court are generally void of any reference to international legal sources. This is surprising, and stands in stark contrast to the modus operandi of the Supreme Courts of many other prominent maritime nations which have ratified the HVR, such as England, Australia and New Zealand. This lack of reference by the Norwegian Supreme Court to international legal sources may have to do with the fact that when incorporated into the MC, the HVR were to a large extent re-edited and rewritten to suit the Norwegian style of legislating. Hence, where matters at the core of the HVR are under judgment, there may be a need to consult the original wording of the HVR, in line with general rules of construction of international conventions. However, the Norwegian Supreme Court's decisions are generally void also of this type of reference - again in stark contrast to the tradition of the Supreme Courts of other important maritime nations.
These methodological aspects provide grounds for reviewing a selection of Norwegian Supreme Court cases within the context of such international legal sources, i.e. by consulting the wording of the HVR and how that wording is construed and applied in relevant case law from other HVR nations. That is what this article aims at doing.(5) A similar analysis is made by Mads Schølberg, Interpreting uniform laws - the Norwegian perspective, MarIus 475, 2017, pp. 147-201. Schølberg's work complements this article in that he also goes into public international law aspects of construction of the HVR and discusses Norwegian law sources in that respect. The relevant cases are first and foremost the Sunna from 2011 but also two older cases will be discusses; the Faste Jarl from 1993 and the Sunny Lady from 1975.
The essence of the article's findings is that the outcome by the Supreme Court in these cases are generally sound and in many ways compatible with views expressed internationally - however that important nuances of the HVR are overlooked or insufficiently understood.