4.3 The difference between cl. 12 and cl. 13
The court also refers to the difference between cl. 12 and cl. 13. Clause 13 is aimed at short term bare-boat charters where it may be natural for the owner to continue their insurance. In this case, the clause states that the “Owners and/or insurers shall not have any right of recovery or subrogation against the Charterers on account of loss of or any damage to the Vessel or her machinery or appurtenances covered by such insurance”. The fact that this clause bars the owner’s/insurer’s right of subrogation whereas the same provision is not found in cl. 12 is disregarded by the majority in the case, who finds it inconceivable that the parties have meant that the clauses should provide for a different attribution of risk. For the court this appears to mean that cl. 12 implies the same rule on no right to recovery/subrogation.
Under cl. 13, the owner is the policy-holder and the charterer is co-insured. This means that the charterer as co-insured has indirect liability insurance for any damage he causes to the vessel. From a Norwegian law perspective it should therefore be unnecessary to state that the insurer have no right to subrogation against the charterer as this is inherent in the co-insurance scheme. To this effect, cl. 12 and 13 appears to be similar, but according to Norwegian law, the insurer’s waiver of subrogation does not mean that claims between the parties are barred.
The owner’s waiver of recovery from the charterer is more difficult to explain in the context of co-insurance, but may be seen in the context of the charter-party clauses 9 and 12. According to cl. 9, the charterers have the obligation to maintain the vessel in good repair and efficient operating condition and to take immediate steps to have any necessary repairs carried out. Clause 12 states that the charterer “shall, subject to the approval of the Owners and the Underwriters, effect all insured repairs and shall undertake settlement of all costs in connection with such repairs as well as insured charges, expenses and liabilities (reimbursement to be secured by the Charterers from the Underwriters) to the extent of coverage under the insurances herein provided for.” Clause 13 has no similar regulation of repairs, presumably because in this case the owner as policy-holder will organize repairs in cooperation with the insurer. The situation may then arise that the owner pays for repairs with compensation from the insurance, and thereafter claim recovery from the charterer based on cl. 9. This may put the charterer in a difficult position: the insurer has already paid the claim and thus the charterer may not claim the insurer even if he is co-insured. Even if the starting point naturally is that the owner may not claim the repair costs twice, the waiver of recovery can be explained to avoid this situation. A similar situation will not arise under cl. 12.