2.2 Comments to the case - methodological aspects and the international context
The Supreme Court decision makes good sense when viewed in the light of the MC and traditional Norwegian contract law principles of vicarious liability for faults committed by the servants of a contracting party. On the other hand: the questions at stake are complex, as illustrated by the different approaches taken by the different Courts, and the topic is within the core of the risk allocation system of HVR upon which the relevant provisions of the MC are based. The decision by the Supreme Court (and the lower Courts) is conspicuously void of any reference to the HVR and to the jurisprudence of other HVR states.
Moreover, reading the Supreme Court's decision, the very reference to the HVR is made in a way as to cast doubt on the Court's understanding of the background to the provisions of the Code. Other statements cast doubt on whether the Court understands essential features of the provisions, e.g. the relationship between liability exception for fire and nautical fault. This is important, since in the context of the HVR, some of the premises of the decision seem to be mistaken. That does not mean that the finding of the Supreme Court is "wrong" when seen in the wider context of the HVR. Probably it is also tenable within such a wider context. The point is rather that the Court makes it too easy for itself by merely looking at the MC and established principles of contract law (vicarious liability for servants' fault) in a Norwegian context. Moreover, the Court's finding that an event of initial unseaworthiness renders moot any question of navigational fault and its liability exception, is too simplistic.
Apart from the above methodological points, there is reason to highlight some factual points of the Sunna which are capable of explaining some of the differences of opinion between the three Norwegian court instances, and which at the same time may be of general interest in analysing the topic at hand within the wider context of the HVR.
First, what may appear as somewhat unclear is the nature of the master's fault in the Sunna. To simplify: if emphasis is placed on the master's mindset in relation to the upcoming voyage, that may point in the direction of a traditional situation of nautical fault; it could for example be the case that the master had planned to assess the forecasted weather conditions in order to decide whether to deploy single or double watch during night time. On the other hand, if emphasis is placed on a deficient bridge management system as a permanent state of affairs, the topic takes the appearance of a traditional unseaworthiness defect, on a par with other systemic failure involving ship safety, required to be in place before embarkation on the relevant voyage.
The facts of the case seem to consist of a combination of both. There was an established practice of non-compliance with the rules which at the same time meant that the master made ad-hoc decisions as to the need for deploying double night time watch keeping - as reflected in the case, in that the first night after the ship sailed from the Icelandic load port, there was in fact double watch deployed. (1) P. 2 and 7 of the Court of Appeal's decision.
This twofold fact seems essentially to account for the view of the Court of Appeal that the conduct of the master constituted nautical fault and that the ship was not initially unseaworthy. The Supreme Court, on the other hand, saw the dominant factor as being that of a failing bridge management system as part of the ship's characteristics, at the time of commencement of the voyage. In that sense the master's decision making on the night of the incident became of secondary importance to the Supreme Court's way of looking at it; this was a mere reflection of the failing practice already in place when the voyage commenced. The Supreme Court stated in this respect:
"When it is in advance clear - due to the master's dispositioning of the crew - that the ship will generally not be seaworthy at night time, there is in my view also initial unseaworthiness. The voyage must in this respect be considered as a whole, and it becomes insignificant whether or not there was a failure in the bridge manning at the very moment the ship departed from berth. [...] No evidence is adduced to the effect that it is likely that the master during the voyage would change his practice. The mere theoretical possibility that this might happen, is to me of no significance."(2) Paras 48 and 49 - my translation.
The Supreme Court's fact-finding, and its emphasis on the inherent character of the defective bridge management system, is clearly not up for criticism. What is of interest is nevertheless to try to reconcile these different perspectives (below).
Second, what is left open in the Supreme Court's decision is the question of what constitutes nautical fault within the context of the case. The Supreme Court held it unnecessary to go into this question, as already explained. However, if one changes the emphasis on the nature of the master's conduct from that of failing to have a rule-compliant bridge management system in place, to that of intending not to deploy double watch keeping during the course of the voyage, there would be a greater need to have this point clarified. Unsurprisingly, the shipowner argued along these lines by stating:
"One and the same mistake(3) Norwegian: 'forhold', signifying the more neutral: 'condition', 'event' or 'cicumstance'. cannot both constitute nautical fault under section 276 first paragraph and lead to initial unseaworthiness. In that case there would have to be another contributing cause to the accident. It would lead to erosion of the exception for nautical fault if one and the same mistake, committed by one and the same person, should also lead to liability under the rules of initial seaworthiness."(4) Para. 23 - my translation.
This submission that one and the same fact cannot lead to two irreconcilable legal consequences, is as such trite. However, the Supreme Court did not conduct any analysis of it, on the footing that initial unseaworthiness in any event overrode nautical fault - a topic which is worth looking further into (below).
A still further point of uncertainty concerns the aspect of the shipowner's vicarious liability for the master's mistake. This in turn has a connection to the above two points: If one were to view the master's fault as that of failing to implement a rule compliant bridge management system (as held by the Supreme Court), this would be considered a task delegated to the master on a par with other aspects of ensuring the ship's seaworthiness.(5) See as an example the English case, the Eurasian Dream, Lloyd's Rep. 2002, 2, 692, involving the liability exception of fire and where the master had failed to implement prudent firefighting routines before commencement of the voyage. In that case the master was however (also) found to be incompetent due to his lack of experience with the relevant type of ship, and the shipowner was found negligent in not having procured the relevant training of and instructions to the master. If, on the other hand, one takes the view that the master's mistake consisted in not intending to deploy double watch keeping during the voyage, hence the mistake (arguably) being nautical in nature, the point about vicarious liability becomes less clear.
The point in this respect would be that the ship might well be considered to be initially unseaworthy by reason of the master's non-compliant intentions, but as long as the master was - by appearance - competent, it seems questionable whether such a seaworthiness defect would be something for which the shipowner is liable. The situation could be characterised as that of "human latent defect" along the following lines: a) a decision by the master, being made at the time of the commencement of the voyage, is nautical in nature, while at the same time such decision would make the ship unseaworthy; b) the shipowner is not liable for the master's faulty nautical decisions, while at the same time being vicariously liable for its servant's mistakes in making the ship initially seaworthy; c) is the shipowner then liable for the master's mistake?
In this respect it should be noted that the overall competence of the master and crew was not in question in the Sunna. Moreover, and as we have seen, the shipowner argued that the shipowner would not be vicariously liable for the master's conduct even though such conduct con stituted a defect in the ship's seaworthiness, since the master's mistake was nautical in nature. The Supreme Court dismissed this point by holding that a shipowner's obligation of initial seaworthiness would override whatever nautical fault defences, as already explained.
The various points of facts and law here outlined give occasion for a deeper analysis of the topic.