2.1 The impact of international developments
The origin of the existing regimes for limitation of maritime claims is the 1957 Brussels Convention. The convention objective was to promote international uniformity by defining the maritime claims subject to limitation (Article 1) and by specifying limits for the total of all limitable claims arising against the ship at any distinct event (Article3), enforceable by means of limitation funds legally established by the shipowner (Article 2). This regime, implemented in the Maritime Code in 1964 (13), later became – in a modernized and redrafted version – incorporated in the 1976 London Convention, providing a substantial increase of the 1957 limits and new, specific requirements as to the establishment, effect and distribution of limitation funds (Article 11-14). After denunciation of the 1957 Convention, the Nordic states in 1983 implemented the 1976 London regime in the Maritime Code (MC). An important part of the implementing legislation was a new chapter of the MC, structured in accordance with the provisions on limitation funds in Articles 11-14. Included in this chapter were also supplementing national rules on the limitation fund procedures and on limitations actions against all claimants, to determine the amount of the fund as well as the distribution of the fund among the established claims against the shipowner. (14)
The 1996 IMO Protocol brought a few, but important, amendments to the 1976 Convention. (15) A first objective was to provide another major increase to the limits of liability. Without awaiting the entry into force of the IMO Protocol, Norway in 2002 implemented the new limits in the Maritime Code without, at the same time, denouncing the 1976 Convention. As a matter of public international law, consequently, it was also necessary to add an exception whereby shipowners from state parties to the 1976 Convention would remain entitled to limitation according to the original limits of the 1976 regime. (16)
The second, but overriding objective of the 1996 Protocol, however, was to re-establish internationally uniform limits of liability fully based on the 1976 Convention, as amended by the 1996 IMO Protocol. In fact, the result of the Protocol was a new 1996 Convention designed to replace the 1976 Convention. To achieve this, it was necessary to terminate the international role of the 1976 Convention and its limits, and to restrict the mutual recognition of the limitation regimes in other states to the limitation regimes based on the limits in the new 1996 Convention (supra 1.5, cf. ND 2007 p. 370 NSC). At the same time, however, it was also important not to impair the international uniformity of the limitation system as such, as already established by the 1976 Convention. The mechanism to implement these principles is set out in Article 9 of the Protocol.
The basic idea inherent in Article 9 is that the state parties to the 1976 Convention, by denunciation of the 1976 Convention and simultaneous ratification of the 1996 IMO Protocol, would be state parties only to the 1996 Convention. Except for new limits and rules on periodic updating of limits, the 1996 Convention was almost identical with the original 1976 Convention, thus preserving generally the uniformity of the existing systems for limitation of maritime claims. As between state parties to the 1996 Protocol, consequently, the 1976 Convention, as amended by the Protocol, formally constituted in its entirety a new treaty – the 1996 Convention – which was to be read and interpreted as one single instrument, cf. the Protocol Article 9, nos. 1 and 2.
This procedure substantially reduced the number of state parties to the original 1976 Convention. At present, more than 60 states, including the Nordic and most European states, are parties to the 1996 Protocol and 1996 Convention. Nevertheless, there are still a number of other states remaining parties to the 1976 London Convention un-amended without ratifying the 1996 Protocol. The effect of the mechanism in the 1996 IMO Protocol Article 9 is, however, that 1996-states, having denounced the 1976 Convention, no longer have any treaty obligations vis-a-vis such states (Article 9, no. 4). In 1996-states, consequently, the limitation regime based on the 1996 Convention, and even an alternative national limitation regime for claims excluded by a reservation according to Article 18 thereof, is also applicable to ships from such 1976-states (ND 2007 p. 370 NSC) and to ships from states not party to any of the conventions.
The third objective of the 1996 IMO Protocol was to solve a problem arising because the mechanism set out in the Protocol Article 9 generally meant that the list of maritime claims subject to limitation contained in the 1996 Convention Article 2 actually remained the same as in the 1976 Convention Article 2. However, the recurrent controversies as to whether the international limitation regime should even extend to cover claims in respect of removal of the ship, cargo and other clean-up operations relating to a ship sunk, wrecked or stranded, actually constituted a serious threat to the extent of international acceptance of the 1996 Protocol and 1996 Convention. In particular, there still was strong opposition from most coastal states. The solution agreed, in order to avoid delay in the entry into force of the 1996 Convention, was to allow each state party to reserve the right “to exclude the application of article 2, paragraphs 1 (d) and (e)”. According to the 1996 IMO Protocol Article 7, amending the 1976 Convention Article 18, paragraph 1, any state party could do so not only when adhering to the 1996 Convention, but also at any time thereafter (supra 1.4).
This compromise meant that the 1996 Convention could not serve as a vehicle for re-establishing an internationally uniform limitation regime for maritime claims. At any point in time, there now exists two groups of state parties to the Convention. One group has a treaty obligation to implement and apply the uniform limitation regime of the 1996 Convention to all maritime claims listed in Article 2. The other group consists of state parties having limited their treaty obligation to the application of the uniform limitation regime of the Convention only to the maritime claims not excluded by an Article-18 reservation. At present this group includes one third of the more than 60 state parties to the Convention, including the Nordic and most European states, all retaining an option to establish at any time an alternative national limitation system for the excluded maritime claims. Many of these state parties have also done so.
Consequently, in the two groups of state parties, the defined scope of the treaty-based limitation regime will be different and, accordingly, the effects of limitation will differ. Moreover, the particular provisions of the 1996 Convention, designed for its limitation regime as a whole, cannot be readily applicable on face value and without adjustment to the limitation regime as delimited in scope by the Article-18 exclusion. The Convention itself, however, does not address the resulting problems, and the solutions provided by the different states vary a great deal.