1.2 Further structure of the article
Although limitation of liability is a well-known concept for most lawyers, particularly in the form of limited liability for companies,(1) Either private or public. it might appear somewhat peculiar as to why individuals and entities operating in the shipping industry should be entitled to have their liability limited when compared against individuals in other industries. Because a potential reflex to this might be that the limitation regimes seem “unfair”, I will briefly deal with the historical background and both the historical and current underlying rationale for these rules in section 2. The main point being made in that section is to remind the reader that the limitation rules are not “matter(s) of justice” but instead “rule(s) of public policy”.(2) The «Bramley Moore» (1963) 2 Lloyd´s Rep. 429, per Lord Denning at p. 437. Precisely because of this, the courts should avoid emphasising considerations of “fairness”(3) The system can in a sense be said to be by definition unfair. The claimant who has his or her loss limited will understandably think that this is “unfair”. in the sense of degrees of blameworthiness/innocence when interpreting systems of rules based on economic considerations. Here it is important to remember that the rules on limitation of liability apply only after the substantive law has imposed liability.
Section 3 deals with the relationship between the LLMC and the Norwegian Maritime Code (the "NMC"). In section 3.1, I briefly describe how the LLMC is implemented under Norwegian law. Thereafter, in section 3.2, I set out the background for Norway´s reservation against the LLMC art. 2 no. 1 letters (d) and (e), and how Norway has implemented a separate limitation regime for claims that fall under those letters in the NMC chapter 9. As we shall see in section 4.1, the Norwegian legislator´s rationale for making a reservation in accordance with the LLMC art. 18 coincides with the rationale for allowing member states to make reservations against the LLMC art. 2 no. 1 letters (d) and (e) in the first place. In section 3.3, I set out how the NMC’s provisions should be interpreted and in section 3.4, we will have a brief look at the Helge Ingstad decision.
After having discussed Norwegian law, I move on to the position under the LLMC. Since Norwegian law is based on the LLMC, the same approach to the interpretation of the LLMC applies as for the NMC. As we shall see, although the position argued for in this article finds support in a Norwegian lower instance decision and in some other decisions relating to similar issues, it is contrary to that of several decisions by final appeal courts in member states to the LLMC. The aim of this article, to put it bluntly, is to equip judges or arbitrators with a systematic approach that will enable them to move undeterred by the final appeal courts’ decisions in future cases when interpreting the LLMC and the NMC.
In section 5, I end the article with some concluding reflections that reach wider than just to the issue discussed in this article.