MarIus

2.2.1 The role of national legislation

According to international law, the effect of a reservation made by one state party to a convention is generally that the provisions of the convention covered by the reservation are not applicable in the relationship between such state and the other state parties to the convention. This applies regardless of whether or not the other state party concerned has given its consent or made an equivalent reservation, cf. the Vienna Convention (1969) Article 21. These principles also apply to multilateral conventions, such as the 1996 Convention.

The 1996 Convention Article 18, paragraph 1 (as amended by the IMO 1996 Protocol Article 7) generally allows that a state party to the Convention reserves at any time “the right … to exclude the application of article 2, paragraphs 1 (d) and (e)”. Accordingly, in the relationship between the state party making such reservation and all the other state parties to the Convention, the obvious treaty-law effect of this reservation is that the Convention is not binding and applicable to questions of limitation relating to the claims thereby excluded from the Convention.

This means that a state party making the Article-18 reservation continues to have an obligation under treaty-law to apply the limitation regime of the Convention, if a ship and its owner or actual operator from other state parties invokes limitation of liability in respect of the remaining claims in Article 2, paragraphs 1 (a)-(c) and (f). Such state party, however, has no obligation to apply the treaty-based limitation regime to limitation in respect of the excluded claims listed in Article 2, paragraphs 1 (d) or (e), invoked before a national court by a ship from another state party. Nor does the national court have any obligation according to the Convention Article 13 to recognize any limitation funds in respect of excluded claims established according to the Convention in other state parties. The consequence of the exclusion by the Article-18 reservation is that, according to international law, the state party itself may generally determine by national legislation if, and to which extent the excluded claims shall be subject to limitation (supra 1.5).

As a matter of public international law, it is the text of Article 18, paragraph 1 of the Convention itself, interpreted according to the Vienna Convention (1969) Article 31, which defines and delimits the actual room for adoption of such national legislation by a state party. The Article-18 reservation, however, does not affect the obligation of the state party relating to the application of the limitation regime of the Convention with respect to the claims listed in Article 2, paragraphs (a)-(c) and (f) as interpreted according to the Vienna Convention Article 31 and, consequently, independent of national law in the state party concerned. To this extent, the state party remains bound as state party to the Convention. Thus, if adopting or applying national rules so as to infringe this treaty-based right to limitation of ships from other state parties , the state party would in fact be in breach of its treaty obligation vis-à-vis the other state parties (cf. supra note 1).

According to the treaty law, consequently, a state party having reserved the right “to exclude the application of Article 2, paragraphs 1 (d) and (e)” may adopt national law providing either that the excluded claims shall not be subject to limitation, or that a quite different and/or separate national limitation regime for such claims shall apply. Article 18, paragraph 1 leaves the choice to the state party concerned. This is the basis for the two-track model implemented by the Norwegian MC Chapter 9, being applicable as lex fori by Norwegian courts, cf. MC § 182, paragraph 1 (infra 2.3.1). (17) A consequence of the Article-18 model is, however, that the national solutions actually preferred or adopted by the different state parties vary a great deal. There are also many state parties, e.g. Denmark, having refrained from adopting particular national legislation, thus preferring – notwithstanding their Article-18 reservation – that the entire limitation regime of the Convention as implemented in their national law shall apply in all cases where limitation be invoked.

2.2.2 The effect of the reservation on the application of the 1996 Convention

The over-all effect of reservations according to Article 18 of the 1996 Convention actually is to restrict the scope of application of the Convention as a whole. Accordingly, the provisions of the Convention must be read and interpreted as an entire convention setting out only a treaty-based limitation regime for the remaining claims defined by the Convention Article 2, paragraphs 1 (a)-(c) and (f). Subject to this restriction on its scope, the Convention as a whole remains binding as treaty law between all state parties, not to be departed from by national law or interpretation with respect to limitation of such claims (infra 2.3 at notes 19-21). This means that the treaty-law effects of the reservation and the exclusion of the claims in Article 2, paragraphs (d) and (e) is not merely a deletion of the two provisions specifically mentioned in Article 18, paragraph 1 of the Convention. This deletion or exclusion is also – directly or indirectly – of consequence for the actual content or interpretation of several other provisions of the Convention.

First, there are provisions in the Convention specifically referring to Article 2 as a whole or to Article 2, paragraphs 1 (d) and (e), such as the definitions of persons entitled to limitation in Article 1, paragraphs 1) and 3). If, according to its reservation, a state party has excluded the application of Article 2, paragraphs 1 (d) and (e), the limitation regime of the Convention does not apply at all to limitation of liability in respect of such claims in cases where invoked by ships, shipowners or operators. Moreover, the definition of salvage operation in the Convention Article 1 paragraph 3 does not include removal and clean-up operations, such as are mentioned in Article 2, paragraphs 1 (d) and (e) or in Article 2, paragraph 2 (infra 2.4.3).

Second, many of the provisions of the Convention apply only to claims “subject to limitation according to the Convention”. Consequently, these provisions do not govern limitation of the excluded claims. This is the case as regards e.g. Article 2, paragraphs 1 (f) on loss-prevention measures (infra 3.2), Article 2, paragraph 2 and Article 12 , paragraph 2 on claims brought by way of subrogation, and Article 5 on limitation of counterclaims (infra 3.4.6). More important is that the limits of liability provided for in Article 6, paragraph 1 (b) and the rules on aggregation of claims in Article 9, paragraph 1 only apply to the four types of claims listed in Article 2, paragraph 1 not actually excluded from the Convention as limitable claims. This also means that the Convention’s Articles 11 to 14 on limitation funds only apply as matter of treaty law to claims subject to limitation according to the Convention.

Although the provisions of the Convention referred to above do not apply as treaty law, it follows from the implementation of the Norwegian two-track model in the Maritime Code that these provisions may nonetheless be applicable as national law (infra 2.3). This means that the provisions is a part of the new separate national limitation regime for the claims excluded by the Article-18 reservation, cf. e.g. MC §§ 231-232. Moreover, with the exception of the key provisions for the national regime relating to limitable claim, limits of liability and aggregation of claims (MC §§ 172a, 175a, 178a and 179), most of the provisions in MC Chapters 9 and 12 are actually provisions common for the treaty-based and the national limitation regimes (infra 2.3.2 at notes 23-24). Even the general scope of application of the two regimes is on the whole determined by provisions common to the treaty-based and the national limitation regimes (infra 2.4).