1.1 The limitation regimes of international conventions
The Norwegian law on limitation of liability of owners and operators of ships, which is set out in chapters 9, 10 and 12 of the MC 1994 (as amended in 2005), is a rather voluminous piece of legislation. Large parts of it, however, are “imported law”, being modelled on the provisions of several internationally elaborated conventions. The purpose of these conventions is to establish and maintain international uniformity in important areas of shipping law when being adhered to by a number of states and, subsequent to ratification, implemented through their national maritime laws. By the ratification of a particular convention as a treaty, each state party assumes vis-à-vis the other state parties an obligation according to public international treaty law to maintain and apply the rules therein to cases within the scope of application of the particular convention. This also includes, generally, a duty to interpret the implementing national legislation in a manner consistent with the provisions of the convention. (1)
In order to promote international uniformity of the law relating to limitation of maritime claims for damage attributable to ships, Norway and the other Nordic states – as well as a number of other European and foreign states – have ratified and implemented the international liability regimes, as developed and amended over the years. At present, the Maritime Code (MC) chapters 9, 10 and 12 mainly reflect the international limitation regimes set out in three separate conventions:
The 1996 Convention on the limitation of liability for maritime claims, being in fact a copy of the earlier 1976 London Convention with a few amendments contained in the 1996 IMO Protocol. The 1996 Convention does not contain any rules relating to the basis for liability for maritime claims.
The 1992 Convention on civil liability for oil pollution damage, which applies to pollution damage caused by the escape of oil (including bunker oil) from tankers laden with crude oil. This convention provides that tanker owners shall have strict liability for such oil pollution damage, and contains in addition its own regime for the limitation of such liability. Supplementing this convention, the 1992 Convention on an international fund for compensation for oil pollution damage allows for additional compensation.
The 2001 Convention on liability for pollution damage caused by bunker oil, which is applicable only to ships other than laden crude oil tankers. According to this convention, the owner of the ship shall have strict liability for such pollution damage, but this liability may be subject to limitation according to national or international law, such as the 1976 London Convention as amended by the 1996 IMO Protocol.
As a matter of international public law, each of these conventions contains a separate regime for limitation of the particular maritime claims falling within its scope of application. The effect of this is essentially a restructuring of the international law on limitation of maritime claims by which the traditional global limitation regime be replaced by several separate treaty-based limitation regimes (infra 1.3). National limitation regimes, established by state parties when implementing the 1996 Convention, contribute significantly to the scope of this restructuring (infra 1.4).
These three conventions pursue different, but interrelated objectives. Despite some differences in particular as to substance, however, the form, structure and elements of each of the limitation regimes established thereby are generally the same. Clearly, the legal limits of liability provided in each are different, being adapted to the types of maritime claims subject to limitation according to each of the new limitation regimes (infra1.4). However, there is no direct legal link between the three regimes. A common denominator for the three treaty-based limitation regimes is that the particular limit of liability provided applies to the total of the defined types of claims having arisen out of a particular maritime casualty. All three also apply a specific limitation fund procedure to achieve actual limitation of each of the limitable claims (MC § 232, cf. §§ 175 and 178, 185 and 195-196). This means – in brief – that the new limitation regimes are, to this extent, also variants of the traditional global limitation system for maritime claims.
Accordingly, the basic idea of each of the new limitation regimes is that the legal limit provided therein shall constitute a limit for the sum of all of the claims subject to this limit arising out of a particular casualty occurring in direct connection with the operation of a ship. This presupposes, first , that the limit applies to the aggregated amount of maritime claims (MC §§ 175, 175a and 195) and, second , that the limitation of particular claims is a result of proportionate distribution of the limitation amount among the claimants (MC § 244). In practice, however, such a system for limitation of the particular claims is operational only if – after a casualty – the shipowner actually establishes a limitation fund subject to proportionate distribution among the established claims and, in addition, the fund so established has the effect of barring claimants from separate actions against the shipowner (MC §§ 178, 178a and 196). Consequently, all the new limitation regimes include a system for enforcing limitation of the particular claims, based on some of the key principles of global limitation , viz. the principles of limitation after aggregation of claims and the use of a limitation fund as the vehicle for enforcing limitation of the particular claims.