3.1 The relationship between the Code and the Convention
Norway was party to the 1957 Brussels Convention and had enacted the rules from that convention into its national legislation. The same approach was followed when the 1957 Brussel Convention was denounced, and the substituting LLMC 1976 was implemented in 1983. At that time the rules were found in chapters 10 and 15 of the Norwegian Maritime Code of 1893, with the “substantive” rules on limitation of liability in chapter 10 and the “procedural” rules on global limitation procedures in chapter 15.(1) These rules were, and still are, common for global limitation proceedings, according to both the LLMC and the CLC. Since the NMC entered into force, the rules can now be found in chapters 9 and 12 of the NMC.
Other than being enacted into Norwegian law by transformation, and thus being written in Norwegian, the rules under the NMC are in principle the same as those under the LLMC.(2) Compared to the LLMC, the NMC has more detailed rules on global limitation proceedings. However, precisely because the LLMC is transformed into Norwegian law, and Norway has more detailed rules on global limitation proceedings,(3) Similarly to the other Nordic countries. situations might arise where the Norwegian text differs from the text in the LLMC.(4) Cf. i.a. Mads Schjølberg, “Interpreting uniform laws – the Norwegian perspective”, MarIus 2016, nr. 475, pp. 145–211, pp. 169ff on issues that may arise when international uniform laws are enacted into national legislation by transformation (in that case in relation to the Hague Rules). In principle therefore, Norwegian law could be in breach of the LLMC. Norwegian courts will however strive towards interpreting the Norwegian rules in conformity with international treaties such as the LLMC. Norwegian law is in general presumed to be in accordance with Norway’s international obligations.
Obviously, this issue only applies where Norway is bound by the LLMC. For issues falling outside the scope of the LLMC, Norwegian courts and arbitrators are free to construe Norwegian law without having regard to the convention. With respect to the relationship between the LLMC art. 2 no. 1 letter (a) on the one hand, and letters (d) and (e) on the other, this was unproblematic for Norway until 1 November 2006, when the separate national limitation regime in the NMC section 172a entered into force. This section, with its “sister” in section 175a (and its other siblings in sections 178a and 179), was a result of Norway’s decision to make a reservation against the LLMC art. 2 no. 1 letters (d) and (e) in June 2002. Up to this point, shipowners’ liability was limited to one limitation amount as set out by section 175,(5) Equivalent to the LLMC art. 6 as amended by the 1996 Protocol. Similarly, no reservation was made against the “same” provision in the 1957 Brussels Convention, cf. Innstilling I fra Sjølovkomitéen 1960, p. 38. regardless of whether the claim fell under letter (a), on the one hand, or (d)-(e) on the other. The NMC section 172 sets out the claims that fall under the LLMC regime, while section 172a sets out the claims that fall under the national regime.
Because of the decision to implement separate national limitation regimes for wreck removal and clean-up claims, the Norwegian law on limitation of liability for maritime claims is often said to be based on a “two track model”.(6) See i.a. Selvig 2022 pp. 99ff. Other than setting out higher limitation limits for these claims in section 175a, and allowing the shipowner to claim his own costs for wreck removal alongside other mitigation and clean-up measures against the limitation fund, cf. section 179, the rest of the rules in chapter 9 of the NMC apply to claims falling under the national “track”. Accordingly, the rest of the applicable rules are based on the LLMC. However, if a claim falls under the national regime, the courts and arbitrators are in principle free to construe these rules without having regard to the LLMC, provided the claim(s) falls under the national regime.(7) For the sake of consistency and foreseeability, however, it is submitted that Norwegian courts and arbitrators should construe these rules in the same way, regardless of whether a claim falls outside or inside the scope of the convention. Cf. also comments to the NMC section 172a in Ot.prp. nr. 79 (2004–2005) p. 41.
It is precisely because Norway has a separate national regime in the NMC section 172a for so-called wreck-removal and clean up claims falling under the LLMC art. 2 no. 1 letters (d) and (e), with higher limitation limits in the NMC section 175a, that it becomes of significant importance whether a claim falls under this national regime, or under the regime set out by the LLMC. If a claim is considered to fall under e.g. the LLMC art. 2 no. 1 letter (a), this claim cannot at the same time also be considered to fall under letter (d) (the national system), since the higher limitation limits would infringe the shipowner’s right to have his liability limited to the amount set out in the LLMC art. 6. As emphasized by Selvig, once a member state has made a reservation in accordance with the LLMC art. 18, then the LLMC art. 2 no. 1 letters (a), (b), (c) and (f) on the one hand, and letters (d) and (e) on the other, are mutually exclusive.(8) Selvig 2022 p. 111.
When Norwegian courts have to decide whether a claim falls under one or the other system, the decisive factor will be an interpretation of the NMC section 172 and 172a. Because of this, it would make sense for us to first have a look at the wording of these provisions, and compare them with the wording of the LLMC art. 2 no. 1. Before we do this, however, it is useful to look briefly at the public policy considerations emphasized in the preparatory works, which explain why Norway made the reservation in the first place. Therefore, we shall look at these considerations in section 3.2 below, before moving over to the wording of the NMC in section 3.3. In section 3.4, we shall briefly have a look at the Helge Ingstad decision.