3.3 Claims subject to treaty based limitation
The purpose of MC § 172 is to implement the Convention Article 2, paragraph 1 (a)-(c) and (f) and to enumerate exhaustively the types of claims subject to limitation, according to the limitation regime of the 1996 Convention (supra 3.1). No doubt, the most important of these types of claims is claims in respect of damage to property as defined in Article 2, paragraph 1 (a):
“Claims in respect of … loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connection [with the operation] of the ship or with salvage operations, and consequential loss resulting therefrom” (supra note 35).
In addition, Article 2, paragraphs 1 (c) and (f) cover claims for loss resulting from infringement of non-contractual rights occurring in direct connection with the operation of the ship or salvage operation, and claims for measures taken by third parties in order to avert or minimize claims subject to treaty-based limitation (supra 2.4.3 at note 34).
By using the generic term “property damage”, however, MC § 172, paragraph 1 (1) is an abbreviated and more concise version of the enumerating provisions in Article 2, paragraph 1 (a) of the Convention. This simplified version already appeared in MC (1983) § 172, drafted to implement the equivalent and detailed provision in the original 1976 Convention, and this text remains unchanged in MC (2005) § 172, implementing the treaty-based regime of the 1996 Convention. (41) The only change then made in MC (1983) § 172, paragraph 1 was the deletion of paragraphs 1 (4) and (5), relating to the claims of the Convention Article 2, paragraphs 1 (d) and (e), subsequently to be inserted in the new MC § 172a (supra 2.3.1). Consequently, the claims listed in the Convention Article 2, paragraphs 1 (a)-(c) and (f), are binding as a matter of public international law and are subject to treaty-conform interpretation according to the Vienna Convention (1969) Article 31. This means that, generally, MC § 172, as an implementation of these provisions, is subject to an interpretation consistent with the Norwegian treaty obligations towards other state parties to the 1996 Convention (supra 3.1).
First, when drafting MC (1983) § 172, paragraph 1, the Ministry deleted as superfluous the particular references to damage to harbour works, basins, waterways and aids to navigation. The prevailing view was that such damage is simply examples of “damage to property” and, consequently, thereby already covered by this term in § 172.
Second, the Ministry felt that there was no need to provide specifically in MC § 172 that, in the context of limitation of liability, claims in respect of damage to property also included liability for “consequential loss resulting therefrom”. It is common ground – and still consistent with the law of damages – that “claims in respect of” all the types of property damage listed in MC § 172 also includes liability for consequential losses of damage to property. (42) Consequently, the collision liability of a ship according to MC § 161 includes not merely the actual collision damage to the other ship, but in addition also the other economic losses and additional costs suffered by its owner or operator as a result of the collision damage inflicted on his ship. One item of consequential loss is the cost of removal and clean-up operation subsequently carried out by the owner or operator of the damaged ship, in order to avoid, limit or remedy the pollution damage attributable to the ship, including remuneration to providers of salvage services requested by the ship (supra 2.4.2 at note 29). Consequently, the total of the damages claimed by the owner/operator of the ship damaged by the collision is subject to treaty-based limitation according to MC §§ 172 and 175. (43)
According to the comments in the Government Bill, the provision in MC § 172 on “consequential loss resulting therefrom” is subject to treaty-conform interpretation. Consequently, MC § 172 may not be interpreted so as to extend further to independent claims for the cost of removal and cleanup operations as such, not asserted by the claimant as a part of the entire claim and liability for property damage. The cause of action and the subject of such independent claim is different from a claim for such cost asserted as a consequential loss of “property damage”, such as damage to a ship caused by collision (infra 3.4.6). Consequently, a claim merely for cost of removal and cleanup operations is only subject to limitation according to the national limitation regime, cf. MC § 172a, 175a and 179. (44) In the context of limitation, the scope of MC § 172 and of § 172a are reciprocally exclusive (supra 3.1).