3.4 The Helge Ingstad-decision
Although the reasoning is not exactly the same as my reasoning above, the “type of claim”-approach to the construction of the NMC sections 172 and 172a is supported by the result in the Helge Ingstad decision from Hordaland District Court.(1) THOD-2021-58354. As this decision is concerned with both the construction of the NMC and the LLMC, I will briefly deal with it here under section 3, in relation to the NMC, before moving over to the LLMC in section 4 below.
The decision was a result of the collision between the oil tanker “Sola TS” (in our scenario, vessel B) and the frigate “Helge Ingstad” (in our scenario, vessel A) in Hjeltefjorden, just outside of Bergen. The collision tore a hole in the hull of the frigate. “Helge Ingstad” caused bunker oil pollution and sank. A mitigation and clean-up operation was carried out and the wreck was later removed. “Sola TS” only suffered minor damage. The frigate was considered a total loss (amounting to 13 billion Norwegian kroner, equalling 1 234 369 500 USD) and the wreck removal operation was expensive (amounting to about 770 million Norwegian kroner, equalling 73 112 655 USD).(2) With the conversion rate between NOK and USD on 12 March 2024. The owners of “Sola TS” declared their liability limited, by establishing a property damage fund in accordance with the NMC section 172, cf. section 175. When the state, as owners of “Helge Ingstad”, made a claim for damages against owners of “Sola TS”, the state argued that the part of the claim that related to wreck removal and clean-up costs could not be limited by this fund, but instead had to be limited in a separate wreck removal fund with “Sola TS’” limit set out in the NMC section 175a. The court decided in favour of “Sola TS”.
As the rules on limitation of liability in the NMC are based on the LLMC, the court starts with an analysis of the LLMC. The court notes that at first glance, the wording of the LLMC art. 2 no. 1 letter (a) on the one hand, and the letters (d)-(e) on the other hand, seem to allow for an overlap. Thereafter, the court reviews the similar provisions in the 1957 Brussels Convention, which was confined to obligation and liability imposed by law, and emphasises that the provision in the LLMC was to be expanded to cover all wreck removal and clean-up claims, regardless of the legal basis. Despite this expansion of the LLMC, the court is of the view that there is nothing in the legal sources indicating that A’s claim against B for the consequential losses related to wreck removal and clean-up should fall under LLMC art. 2 no. 1 letters (d) and (e). The court then emphasises that such a claim falls under the scope of the wording of the LLMC art. 2 no. 1 letter (a) when this provision is interpreted objectively,(3) The Court of Final Appeal of Hong Kong in the Star Centurion decision (see section 4.3 below) seems not to have had available a very good translation of the Norwegian decision, cf. para. 39 of that decision. and thereafter emphasises that it would make little sense to limit the scope of claims falling under letter (a) by expanding the scope of letter (d), when the “purpose behind the different provisions has been to make clear the different claims for which liability can be limited, independently of the legal basis for the claim”.(4) My translation. Before moving over to the construction of the provisions in the NMC, the court concludes that the state’s claim against “Sola TS” fell under the LLMC art. 2 no 1 letter (a).
Because the court’s analysis of the NMC sections 172 and 172a, and the preparatory works leading up to these provisions, is so thorough, I will limit myself to a brief outline of the main points. The court strongly emphasises the policy considerations motivating Norway’s reservation in accordance with the LLMC art. 18 no. 1 in 2002 (see section 3.2 above) and that a statement in the preparatory works relating to the moving of wreck removal and clean-up claims from the previous NMC section 172 to a new section 172a, was not meant to affect the interpretation of either. Furthermore, having concluded that the state’s claim against the owners of “Sola TS” fell under the LLMC art. 2 no. 1 letter (a), and since Norwegian law was presumed to be in accordance with the convention when these provisions were implemented, the court emphasises this in favour of “Sola TS”. Lastly, an objective interpretation of the wording of the NMC section 172 was seen to support this conclusion.
It is not very surprising that the court does not explain the construction of the NMC by referring to theoretical considerations, as I have done in section 3.3 above. Nonetheless, the court’s attention given to the difference between the claims made against the “polluting vessel” and this “vessel’s claim” later on, including the former claims as heads of losses in this claim, supports the view argued for in this article. The distinction made in the NMC section 172 and 172a is between different claims, not losses. As noted above, the court interpreted the NMC to be in line with the LLMC. In section 4.1 we shall look more closely at the text of the convention, and in section 4.2, at recent case law related to the interpretation of this.