5 Concluding remarks
I have argued above that when constructing the NMC sections 172 and 172a and the LLMC art. 2 no. 1 letters (a), (d)-(e), the courts should follow what I have referred to as the “type of claim” approach, rather than the “type of loss” approach. By following this approach, it is easier to see that A’s claim against B in our scenario 2 is one claim for which B is entitled to limit his liability, and that this does not change due to the economic consequences on A’s side. There is something peculiar about the LLMC art. 2 no. 1 being concerned with “losses in fact”, when the convention covers limitation of liability for maritime claims. I suspect that the approach favoured by the Supreme Court of the Netherlands and the Court of Final Appeal of Hong Kong is, at least in part, influenced by the fact that A is “innocent”. A result where the innocent shipowner A obtains full cover from the “blameworthy” shipowner B for his wreck removal and clean-up costs, undoubtedly feels more “fair”.
It is understandable that courts wish to reach conclusions that are “fair” in the individual case. However, when interpreting rules that are parts of a more or less coherent system that might be said to be unfair by definition, the courts should try to avoid emphasising “individual fairness”, influenced by the facts in the specific case. What is fair in one case is not necessarily fair in the next, when the facts are turned upside-down. The substantive law on liability deals with this. The limitation rules are only relevant once the substantive rules have imposed liability, and then the limitation rules only set out maximum economic limits. By keeping this in mind, it is more likely that the interpretation of the rules will be more predictable. In principle, predictability should make the liability easier to insure. Increased insurance capacity makes it easier to increase the maximum limitation amounts.(1) Cf. the debate in Berlingeri pp. 21ff. This again makes it more likely that the claimant will achieve payment in full.