| Tittel: | SIMPLY 2020 : Scandinavian Institute of Maritime Law Yearbook | | Ansvar: | editor: Trond Solvang | | Forfatter: | red.: Solvang, Trond  | | Materialtype: | Bok | | Utgitt: | Oslo : Sjørettsfondet, Nordisk institutt for sjørett, Universitetet i Oslo, 2021 | | Omfang: | 169 sider | | Serie: | Marius ; 551 | | Emneord: | Sjørett / Årbøker | | Note: | Kapittelforfattere er: Thor Falkanger, Trond Solvang, Alla Pozdnakova, Angus Johnston, Henrik Bjørnebye
| | Innhold: | In the realm of cargo carriage and shipowners’ liability for cargo damage, the relationship between a shipowner’s obligation to make the ship seaworthy at the commencement of the cargo voyage, and a shipowner’s exemption from liability by nautical fault,2 is potentially complex. Such complexity particularly involves the role of the master. He may in some respects be considered the servant of the shipowner for purposes of making the ship initially seaworthy, with his faults being imputed to the shipowner, while in other respects he may conduct acts of a nautical nature, with his faults not being imputed to the shipowner.3 The topic is at the core of the Hague/Hague-Visby Rules (HVR),4 being ratified by Norway5 and incorporated into the Maritime Code (MC). The HVR, aimed at international harmonization of this area of law, are of great prevalence, as they have been ratified by most maritime nations. Hence, case law from such other maritime nations is clearly of relevance when interpreting and applying the HVR, as implemented in the MC, under Norwegian law. Despite this being so, decisions by the Norwegian Supreme Court are generally void of any reference to international legal sources. This is surprising, and stands in stark contrast to the modus operandi of the Supreme Courts of many other prominent maritime nations which have ratified the HVR, such as England, Australia and New Zealand. This lack of reference by the Norwegian Supreme Court to international legal sources may have to do with the fact that when incorporated into the MC, the HVR were to a large extent re-edited and rewritten to suit the Norwegian style of legislating. Hence, where matters at the core of the HVR are under judgment, there may be a need to consult the original wording of the HVR, in line with general rules of construction of international conventions. However, the Norwegian Supreme Court’s decisions are generally void also of this type of reference – again in stark contrast to the tradition of the Supreme Courts of other important maritime nations. These methodological aspects provide grounds for reviewing a selection of Norwegian Supreme Court cases within the context of such international legal sources, i.e. by consulting the wording of the HVR and how that wording is construed and applied in relevant case law from other HVR nations. That is what this article aims at doing.6 The relevant cases are first and foremost the Sunna from 2011 but also two older cases will be discusses; the Faste Jarl from 1993 and the Sunny Lady from 1975. The essence of the article’s findings is that the outcome by the Supreme Court in these cases are generally sound and in many ways compatible with views expressed internationally – however that important nuances of the HVR are overlooked or insufficiently understood. |
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