3.1 The two groups of limitable claims
Article 1 of the 1996-Convention provides that “shipowners”, as defined therein, may limit “their personal liability” for all types of claims listed in Article 2, paragraph 1. According to the Maritime Code §-172 however, the treaty-based limitation regime of the Convention only applies to the group of claims listed in Article 2, paragraph 1 (a)-(c) and (f), while MC § 172a and the national limitation regime governs limitation in respect of the claims listed in Article 2, paragraphs 1 (d) and (e) excluded from the Convention. This is explained supra 2.2 and 2.3, also pointing out that the difference between the two limitation regimes is clearly and specifically denoted by different rules determining the limit of liability, the aggregation of claims, and the effect of the limitation fund as a bar to other action (supra 2.3.2).
The criteria applied by Article 2, paragraph 1 to distinguish between the various types of claims subject to limitation addresses two different aspects. Generally, MC §§ 172 and 172a applies the same criteria when distinguishing between the two limitation regimes. One of the criteria relates to the types of damage being the basis for the claim(s). The other defines the actual causal connections required between the particular damage or claim(s) and the particular ship, determining the limit of liability applicable according to either MC § 175 or MC § 175a. Thus, these links between the damage/claim(s) and the ship are significant when it comes to the actual limitation of the personal liability of its owner or actual operator.
MC § 172, paragraph 1 on treaty-based limitation only covers claims in respect of damage to property and certain other types of damage if occurring on board or in direct connection [with the operation] of the ship (35) or with salvage operations as defined in § 171 paragraph 1 to include loss-prevention measures relating to such claims (supra 2.4.3). Claims in respect of such damage are subject to the limits of liability contained in MC § 175, paragraph 3, calculated on the tonnage of the ship having the required causal connection to the relevant damage/claim.
On the other hand, MC § 172a only covers claims in respect of the raising, removal, destruction or rendering harmless of a particular ship, including anything that is or has been on board this ship, provided in addition that the ship is sunk, wrecked, stranded or abandoned. (36) Thus, MC § 172a generally covers all claims in respect of removal and clean-up operations after a casualty to a ship with the result that the ship is sunk, wrecked, stranded or abandoned. These claims are subject to the limit of liability set out in MC § 175a, calculated on the tonnage of the ship so sunk, wrecked, stranded or abandoned, to determine the personal liability of its owner or actual operator. (37)
According to the Maritime Code, the actual extent of limitation of the personal liability of the owner or the actual operator of the relevant ship is consequently clearly different for the two groups of limitable claims. Each of the two new limitation regimes is applicable and may be invoked only for limitation of any personal liability for the particular claim(s) actually falling within the particular group of exhaustively listed limitable claims as set out either in MC § 172 or in MC § 172a, thereby also defining the scope of each limitation regime (supra 2.3.3)
This is particularly important for claims listed in MC § 172, which implements the Convention Article 2, paragraphs 1 (a)-(c) and (f). These provisions are subject to treaty-conform interpretation in compliance with the Norwegian treaty obligations towards other state parties to the 1996 Convention (supra 2.2.2) Consequently, MC § 172 implementing these provisions is subject to interpretation consistent therewith (supra note 1). The scope of the new national limitation regime, on the other hand, is entirely a matter determined by national law within and subject to the limits set by the Article-18 reservation (supra 2.2.1). Accordingly, MC § 172a, even if modelled on the Convention Article 2, paragraphs 1 (d) and (e), is generally subject to ordinary national interpretation, (38) provided, however, that the scope of § 172a is not thereby extended so as to include any claim subject to treaty-based limitation according to MC § 172 (ND 2007 p. 110 NSC and ND 2007 p. 370 NSC). (39)
This means that the two new limitations regimes are mutually exclusive. This is important if the claims arising out of the same maritime incident are different in kind and, accordingly, are subject to different liability regimes and limits of liability. (40) Furthermore, there is no legal link between the limits of liability of the two limitation regimes, cf. MC § 175 paragraphs (3) and (4) and § 175a, providing different limits and rules for aggregation of claims. In addition, this is also specifically stated in MC § 177, paragraph 2, implementing Article 11, paragraph 1, 3rd sentence, and paragraph 3 (supra 2.3.3). Accordingly, no cumulative or “spill over” rule applies between the two different limits if the total loss of a claimant in a particular case consists of claims subject to limitation according to both limitation regimes. Moreover, in a specific case involving more than one ship, questions relating to the required causal connection between the claim(s) and each of the ships, as discussed above, consequently determine the extent to which the owner or operator of each ship may be personal liable and also entitled to invoke limitation of liability for particular claims asserted (infra 3.4.6).