1.3 The scope of the 1996 Convention
The purpose of the 1996 Convention – consistent with the idea of global limitation of maritime claims – was apparently to define as a matter of international law a generally applicable regime for limitation of liability for maritime claims. The new convention constitutes a copy of the 1976 London Convention, as amended by the 1996 IMO Protocol providing higher and internationally uniform limits of liability. Actually, the global limitation objective of the 1957 and 1976 conventions also served as the basis for drafting the 1996 Convention. (2) Nevertheless, the 1996 treaty-based regime specifically allows any state party a quite wide optout option for important groups of maritime claims, cf. in particular the 1996 Protocol Article 9 on the scope of the treaty obligations imposed on state parties to the Protocol (infra 2.1).
The limitation regimes of the 1957, 1976 and 1996 conventions generally distinguish between personal injury claims and all other maritime claims occurring in direct connection with the operation of a ship, cf. Articles 2, 6 and 7. They provide separate limits for personal claims, and another limit for the sum of all other types of claims arising out of the same accident or event. The latter group included all kinds of claims based on damage to property (including damage to harbour works and waterways), as well as claims by public authorities in respect of the raising, removal and cleaning-up work, required because the ship is sunk, wrecked or stranded, including anything that is or has been on board such ship. Nevertheless, the 1996 convention Articles 3 and 18 also contained some exceptions and, as a matter of international law, important groups of maritime claims actually fall outside its scope of application, being subject to other separate international or national limitations regimes.
First, claims in respect of oil pollution damage resulting from the escape of crude oil (including bunker oil) from laden tankers, excluded from the 1996 Convention, are subject to the special and separate limitation regime provided for in the 1992 Liability Convention. The MC chapter 10, part II implements this limitation regime, but with supplementing national rules on limitation fund modelled on provisions applicable to the limitation regime of the 1976/1996 conventions (MC §§ 195 and 196, cf. MC chapter 12). This liability regime also includes claims in respect of raising, removal and clean-up operations to avoid or limit pollution damage arising out of casualties involving laden tankers (MC § 191, paragraph 2). However, other types of maritime claims in respect of damage caused in direct connection with the operation of laden tankers remain within the scope of the limitation regime of the 1996 Convention, as implemented in MC chapters 9 and 12.
Second, 1996 Convention Article 18 allows state parties a wide option to opt-out of the limitation regime of the convention by excluding and exempting any claims in respect of removal and clean-up operations relating to a ship sunk, wrecked or stranded, cf. Article 7 of the 1996 IMO Protocol. A number of state parties, including Norway and the other Nordic states, have done so. Consequently, the treaty-based limitation regime of the 1996 Convention, as implemented in the Norwegian MC chapters 9 and 12, is now a separate regime applicable only to the claims remaining within the scope of the 1996 Convention, mainly claims in respect of property damage. Conversely, the exempted claims are subject to a new national limitation regime, established by national statutory law as a separate variant of a “global limitation” system, but based on substantially higher limits of liability than in the 1996 Convention. (3) Accordingly, MC chapters 9 and 12 also contain particular provisions defining the key elements of this national limitation regime (MC §§ 172a, 175a, 178a and 179, cf. § 232).
Third, claims in respect of oil pollution damage resulting from bunker oil of ships other than laden tankers, are subject to the strict liability regime provided for in the 2001 Bunker Convention, as implemented in MC chapter 10, part I. This liability regime also includes claims in respect of raising, removal and clean-up operations to avoid or limit pollution damage arising out of casualties involving laden tankers. However,the Bunker Convention expressly provides in Article 6 that it does not affect any right to limitation of such liability according to national or international law, such as the 1976 London Convention as amended e.g. by the 1996 IMO Protocol (MC § 185, paragraph 3). According to MC chapter 10, part I, such pollution claims consequently in fact fall within the scope of the new separate national limitation regime based on the opt-out exemption of Article 18 of the 1996 Convention and the substantially higher limits of liability for such claims specifically provided in MC §§ 172a, 175a, 178a and 179, cf. § 232. (4) However, other types of maritime claims in respect of damage caused in direct connection with the operation of ships other than laden tankers remain within the scope of the treaty-based limitation regime of the 1996 Convention, as implemented in MC chapters 9 and 12, cf. MC §§ 172, 175 and 178, cf. § 232.
The restructuring of the treaty-based and national limitation regimes following from the implementation of the 1996 Convention in the MC chapters 9, 10 and 12, consequently means an actual replacement of the traditional global limitation regime by several separate treaty-based and national limitation regimes. Each of these regimes has a defined scope and different limits of liability (MC §§ 172 and 175, 172a and 175a, 185 and 195). However, MC chapter 12 on limitation funds applies to all of these regimes, cf. also MC §§ 176, 177 and 195.