4.7 Summarising remarks - with a look to the Norwegian Supreme Court case, the Vågland
As has been illustrated, the question of the relationship between nautical fault and initial unseaworthiness is potentially complex, and with no clear-cut solution either in the original drafting of the HVR, or through international legal sources. Various perspectives may be adopted, and the following may serve as summary.
If the relevant fault in existence at the time of departure, making the ship unseaworthy, is not of a nautical nature proper, i.e. not "seamanship-like", then there would be no grounds for liability exemption under the HVR. A question in such situations may still be whether, depending on the circumstances, the relevant defect is "hidden" to the shipowner, as discussed in relation to the Faste Jarl.
If the relevant fault in existence at the time of departure, making the ship unseaworthy, is of a nautical nature proper, then further questions arise. One could here take a functional approach, to the effect that the due diligence obligation of the shipowner to make the ship initially seaworthy, is somehow "eclipsed": rather than an arbitrary dividing line based on the exact time when the relevant nautical fault were to occur, the decisive criterion would be the nature of the relevant fault itself. Such an approach, giving effect to the nature of the fault, seems to be reflected in the U.S decision the Jalavihar (albeit obiter remarks in the first instance court). It seems, moreover, to be envisaged by the New Zealand Supreme Court in the Tasman Pioneer, with the notion of a shipowner's "direct control", which seemingly would not encompass nautical faults belonging to the nautical expertise and prerogative of the master and officers. Likewise, it seems to be reflected in the English House of Lords decision in the Hill Harmony (although that decision did not involve the HVR question of initial unseaworthiness).
Such a functional approach does in turn open for additional questions: would it be compatible with a shipowner's obligation under HVR art. III 1 to make the ship seaworthy, that certain faults (nautical faults proper) committed by certain servants, are not to be imputed to the shipowner?
These questions were addressed by the English Court of Appeal in the Libra, holding against the shipowner, essentially along the following line of arguments: a) literal construction of the HVR art. III 1 and 2 points towards not allowing art. III 1 to be eclipsed by art. IV exceptions; b) English law authorities on the test of unseaworthiness encompass also nautical faults proper; c) the English law authority of the Muncaster Castle establishes that a shipowner's duty of due diligence to make the ship initially seaworthy, is non-delegable, which means that also nautical faults proper are covered by such non-delegable duties.
For reasons earlier explained, that English law position is not necessarily apposite under Norwegian law. This in turn means that the issue is as a matter of international legal sources fairly "open", hence capable of being resolved in more than one direction. This fact is perhaps not surprising in view of the history of the Rules, which comprised a compromise between opposing interests and with no coherent drafting style to merge these opposing interests. Rather, the drafting was marked by a peculiar composition of textual pieces representing the respective interests.(1)See the review of the Tasman Pioneer, above. That being so, one could perhaps say that the Norwegian Supreme Court's decisions in both the Sunna and the Faste Jarl are practically and legally sound, and should therefore be immune to criticism. However, the point remains that a legal discussion should be rooted in legal sources of relevance, regardless in what direction they may turn out to go. It is in that respect that the two decisions are unsatisfactory - and the same applies to the Sunny Lady (next chapter).
This methodological aspect involves what generally may be seen as a strength of Norwegian Supreme Court adjudication; that of adopting a fairly open (and pragmatic) policy consideration of the matter at hand. But also that aspect seems here to be missing. Put differently: also such policy considerations require that the considerations to be weighed are derived from the legal instrument governing the legal subject matter, i.e. the HVR. When that part is missing, what might have been good policy considerations becomes stultified.
With respect to such policy considerations, it is worth looking at another Supreme Court decision, the Vågland from 1954.(2)ND 1954.65. That case did not deal with exception from liability under the HVR but a similar question of a shipowner's limitation rights in case of nautical fault, and it concerned the peculiar questions which might arise in relation to single-person shipowning companies (Norwegian: skipper-reder). Here, one and the same person fulfills the dual role of being the navigator and the person preparing the ship for sea.(3)As Falkanger points out, these constellations could arise in situations of genuine onepersons companies or in corporations where the main shareholder of the company is the master, which in the context of HVR related transport probably would be more realistic – Falkanger/Bull (2016) p. 175. Hence, a functional approach to questions of navigation becomes, as it were, distilled, and for that reason illustrative of policy considerations.
The facts of the case were that the ship Vågland was to blame in a ship collision. The immediate cause of the collision was navigational fault on the part of the master, while the underlying cause was intoxication on his part, in existence already before departure. The relevant rules concerned limitation of liability, which had no specific provision regulating the stage of initial unseaworthiness, but granted limitation of liability for nautical fault in master-owner constellations.
In the relevant consideration of causation, the Supreme Court found the intoxication to be the proximate cause of the incident, which meant that limitation rights were not granted. The Supreme Court's reasoning is succinct:
"[NN's] grave violation of the COLREG(4)Norwegian: sjøveisreglene – which incorporate the COLREG. has in my view [...] its cause in his voluntary intoxication, and could - as I see it - hardly have been committed by an experienced master in a sober condition. Under the influence of alcohol he set to sea with his ship with himself at the helm, and under the influence of alcohol he retained command and was on the bridge when the collision happened. What [...] led to the collision was - as mentioned - [NN's] intoxication, and for this fault he must be held personally responsible. [...] That being the case, he cannot be absolved from liability by the fact that the intoxication led to faulty navigation which in itself is a nautical fault."(5)P. 67–68 – my translation.
That case led to discussion among legal scholars. The Norwegian lawyer Alex Rein disagreed with the outcome of the case, arguing that the shipowner's protection by nautical fault thereby risked being eroded, and compared the situation of being intoxicated to the situation of being overly tired, which would have led to ensuing nautical fault giving rise to limitation rights. Mr. Rein stated:
"For a master-owner's protection to be effective pursuant to the preparatory works, one cannot deny him limitation of liability in all instances where he qua owner would have had a duty to prevent a nautical fault qua master. It cannot therefore in itself constitute a basis for liability that the master-owner's owner-ego did not grasp his master-ego by the neck."(6)Alex Rein, Skipper-rederens rett til ansvarsbegrensning for nautisk feil – Noen bemerkninger til en høyesterettsdom, AfS Bind I 1954 p. 560–563 (561) – my translation.
That view elicited reactions. The Danish nautical expert Rud. Nilsson strongly disagreed and stated i.a.:
"When it is stated [by Mr. Rein]: 'It cannot be disputed that the intoxication was an error in the nautical service', that may in my opinion be correct only in relation to the master-owner in his capacity as master, not in his capacity as owner. As owner his mistake consisted in the fact that he drank the master (in casu himself) under the table,(7)Danish: ‘drak skipperen på pelsen’ – which is hard to translate. despite knowing that the master was going out sailing. If there had been a question of two persons involved, and the master had shown up drunk at the owner's offices to say goodbye, then the owner would have had a duty to stop him. The situation would have been even worse if the owner had sat down and started drinking heavily with the master before he was going out sailing, and that is actually what has happened here where the master and the owner is one and the same person."(8)Rud. Nilsson, Diskusjonsinnlegg, AfS Bind 2 1955 p. 163 – my translation.
It is to be noted that this view is very much in line with the reasoning by the Supreme Court in the Faste Jarl, in that intoxication by the navigator having occurred before commencement of the voyage, could not be seen as navigational in nature, and therefor belonged to the shipowner's sphere of responsibility - as was the essence of the reasoning also in the Vågland decision.
Alex Rein gave a further reply where he disagreed with Rud. Nilsson's view, stating i.a.:
"I am sorry to note that in my previous article I expressed myself so unclearly that even senior officer Rud. Nilsson was not able to follow me. On the other hand, I believe Mr. Nilsson too quickly draws the conclusion that my argumentation for that reason is un-tenable.(9)Which is a twisted type of logic: that a person too quickly draws a conclusion because he is unable to follow the logic of his antagonist. Rather than repeating my argumentation in more elaborate terms, I think it will be helpful to take another route and demonstrate where Mr. Nilsson goes wrong in his argumentation."(10)Ibid. P. 166 – my translation.
Alex Rein then gave another analysis of the various constellations in, and consequences of, the master-ego's and the owner-ego's possible prevention of each other's mistakes, and maintained his earlier view that the master-ego's nautical fault should on the facts of the Vågland have been decisive, leading to limitation rights being granted.
Mr. Rud. Nilsson again responded, maintaining his earlier view, and stating in response to Mr. Rein's example of tiredness being tantamount to intoxication:
"Tiredness would be accumulated during performance of the master's duties; if he had been dead-tired before the ship's departure, it might have been reasonable to compare these two situations, but I would like to see that master who would go to bed when the ship enters dire straights, even if he has already had a strenuous day. It is probable that I do not view these questions sufficiently legally,(11)Which clearly is mockery of Mr. Rein’s formalistic argumentation. but as a practitioner I cannot accept viewing these situations on an equal footing. [...] The ship is not seaworthy when under command of an intoxicated master, and it is on this point that the owner must take the full responsibility for not having let his alter-ego stay on shore and sleep it off."(12)Ibid p. 168 – my translation.
As part of this Norwegian-Danish debate, also the Swedish scholar Tage Zetterlöf expressed his views, essentially agreeing with Rud. Nilsson. Mr. Zetterlöf discussed various policy considerations involved in the Vågland, e.g. on the one hand that a master-owner's owner-ego may be said to be disadvantaged vis-à-vis a regular owner, who would be entitled to invoke limitation rights in case of nautical fault committed by its master - but on the other hand that a master-owner's master-ego would be unduly favourably treated compared to his nautical colleagues, who would not be protected by limitation rights in a situation such as the present one.(13)Ibid p. 165 – however, and as Mr. Zetterlöf pointed out, with possible protection through the rules of abatement according to MC s. 151 second paragraph.
As stated, the discussion concerned the limitation rules as applicable at the time,(14)For a further discussion on the subsequent development in this area of law, including the current MC chapter 9 based on the 1976 Convention, see Solvang, Rederiorganisering og ansvar – rettslige utviklingstrekk, MarIus 484, 2018, pp. 35–37. not the HVR. However, the discussion revolving around the phenomenon of dual tasks performed by one and the same person in master-owner constellations, is of general interest.
First, the phenomenon has an intriguing theoretical side: Should one - in the spirit of Mr. Rein's idea - split the two egos in the sense that the test of due diligence by the master-ego starts only after that ego has been intoxicated by the owner-ego? This way of putting the question goes to the core of fundamental principles found in other legal areas, such as in criminal law, where in case of voluntary intoxication a person's acts are assessed as if he/she was not intoxicated. Conceptually, it seems close to impossible (even in master-owner constellations) to envisage an "input-threshold" of intoxication which is to be taken into account so that a nautical fault occasioned by intoxication is not to be deemed negligent because such "input-threshold" is not to be imputed to the nautical master-ego (solely to the owner-ego) and therefore shall not form part of the overall assessment of negligence, including the assessment of exceptions from liability for negligence. That type of logical (and psycho-logical) delimitation, bordering to absurdity, is hardly tenable within legal reality.
Second, this conception of an "acting-ego" in a master-owner constellation, has some relevance to "normal" constellations of dual functions to be performed, e.g. in the context of the HVR.
The Vågland bears resemblance to the Faste Jarl. If the shipowner in the Faste Jarl had been a one-person master-owner, the reasoning in the Vågland would have governed.(15)I do in that respect not follow the view by Falkanger/Bull that the outcome in the Vågland has been set aside by subsequent remarks in the preparatory works to the later enacted limitation rules, Solvang, Ibid p. 36. Fundamental ideas of contract law lead to the same result: if a corporation engages employees to undertake the relevant tasks, i.e. both preparing the ship for sea and navigating the ship, there should in principle be no difference from a one-person company. The basic idea is that a party subject to certain duties by undertaking certain functions, shall not be allowed to escape liability by engaging someone else - and correspondingly if the failure of performance of certain functions is exempt from liability.
In other words, when intoxication before departure was not seen as (the preceding stage of) a nautical fault in a master-owner situation in the Vågland, that consideration should turn out no differently if servants are engaged in doing the relevant task - as in the Faste Jarl. Conversely, if the task is of nautical nature proper, whether the failure in performing it is committed before or after commencement of the voyage, should according to this line of reasoning make no difference. This essentially points towards what we have called a functional approach in the context of the HVR, to the effect that a nautical fault proper committed before departure would lead to liability exemption for nautical fault - as illustrated by the examples given in the Hill Harmony and the Jalavihar (above).
This, moreover, means that the Faste Jarl and Sunna were soundly decided in the sense that in those cases there was no question of an initial seaworthiness defect being of a nautical nature proper. But it also means that the reasoning in both cases was unsatisfactory in not touching upon the complicated aspects of the interlink between HVR art. III and art. IV.