Norway takes preventative measures

Norway takes preventative measures

Maritime casualties came under the spotlight in a recent report by Norway's Maritime Law Committee

SOME recent ferry tragedies in Scandinavia involving Norwegian passengers have highlighted the need for thorough and effective investigations into transport accidents to avoid such disasters happening again.

Norway has a government-appointed Maritime Law Committee to address the Norwegian rules for investigations into marine accidents. This standing committee is charged with looking at revisions to the maritime code in Norway. As the code governs all shipping activities in the country, representatives from all areas of the industry are involved, including lawyers, shipowners and seafarers' union members.

Existing rules in the code dealing with marine casualties are very simple. Following an incident, those involved are called to a local court to give evidence. Depositions are taken from witnesses. The quality of these depositions depends upon the judge and his/her familiarity with maritime cases. Such unexpected depositions after maritime accidents or casualties often come as an unwelcome interruption to judges who already have a very busy schedule, hearing and deciding criminal and civil law suits.

When a high-profile incident occurs, a more thorough investigation is called for. In these cases, a special enquiry commission is appointed to carry out an ad hoc enquiry.

Following almost a year of discussions and meetings, the Maritime Law Committee devised a white paper for the Norwegian government proposing a permanent, fully qualified enquiry body for all maritime accidents. This body is committed to finding out what went wrong, and will suggest what steps should be taken to avoid it happening again.

The Maritime Law Committee devised a white paper for the Norwegian government proposing a permanent, fully-qualified enquiry body for all maritime accidents.

The ad hoc enquiry system already in existence can take up to fourteen days to appoint a team and begin work. The idea behind the proposed body is to ensure that there is a qualified investigation team on the scene of an incident immediately. Such a permanent body should also be able to accumulate and apply know-how gained from the various investigations in its recommendations for steps to be taken to improve safety at sea both domestically and internationally.

For the body to function effectively, the committee has said it should not be concerned with legal blameworthiness, as this responsibility lies with the courts. In addition, "it is absolutely mandatory that it is completely independent of any marine authorities," says Haakon Stang Lund, partner at Oslo-based law firm Wikborg, Rein & Co, and a member of the government-appointed Maritime Law Committee.

The Maritime Directorate, the highest marine authority in Norway, has said the body should fall under its administration but still operate as an independent entity. However, the other members of the Maritime Law Commission felt that this could create a conflict of interest if the directorate was ever involved in a case under investigation by the body.

An example of this is to be found in the very recent grounding and subsequent sinking of a newly built domestic high-speed passenger ferry, with resultant loss of life. The ad hoc commission, appointed to enquire into the cause of this accident, has decided to extend the enquiry to include the role of the Maritime Directorate in approving the ferry and its safety equipment.

In Canada, meanwhile, a similar body says it doesn't believe it could carry out successful investigations and come to the conclusions it does if it was not independent. In one case, the Canadian body was called upon to investigate an air crash caused by the pilot's decision to take off without de-icing snow from the wings of the aircraft. The Canadian commission looked into the routines of both the Canadian air transport bodies and the management of the airway company. The findings of the commission led to substantial amendments being made to rules and routines.

A permanent investigation team is already in place within the Norwegian aviation industry, so the committee is confident the government will recognise the need for such a system in the maritime sector.

The Maritime Law Committee envisages a merger of the aviation and proposed maritime transport body, and supports the long-term development of a common body for the whole transport sector, including road and rail transport. The most recent rail tragedy in Norway underscores the need for such a common enquiry body. Having one body looking into management routines and governmental supervision of the various transport sectors, whether they are organised as private enterprises or government agencies, also provides potential synergies.

It is too early to say how the white paper will be received, and how long it might take to implement its proposals. It was presented to government in November last year, and a number of other bodies are expected to comment. If the proposals are agreed, the paper will be put forward as an official proposal to amend the maritime code. This could take years. Watch this space.

Hurdles for disputed owners

Does the 1999 Ship Arrest Convention present an obstacle to disputed owners' rights to arrest a ship, asks Malin Lundgren, attorney-at-law at Oslo-based law firm Wiersholm, Mellbye & Bech.

DURING the preparation of the 1999 International Convention on Arrest of Ships, it was debated at length whether a claimant should have the right to arrest a ship even if the person against whom the claim is directed is not the owner of the ship.

In many common law jurisdictions, it is possible to enforce an action in rem in the property. Contrary to this, several civil law jurisdictions generally permit the enforcement of claims against persons, but not against property. It was not possible to arrive at a unanimous decision regarding which of these solutions it would be most appropriate to insert in the convention, so a compromise was reached.

"It seems fairly clear that the convention gives a disputed owner the right to arrest the ship. The question is whether Article 3.3 lays down conditions for the right of a disputed owner to arrest the ship".

According to Article 3.3 of the convention, it is possible to arrest a ship, even if the person against whom the claim is directed is not the owner of the ship. But the prerequisite for an arrest is that the claimant has the right to claim a forced sale of the ship under the national law of the state where the arrest is applied for.

The prerequisite in Article 3.3 does, however, create a problem when the person seeking arrest, the disputed owner, and the person in possession of the ship, both make conflicting claims to be the lawful owner, and can both demonstrate a prima facie case that each of them is the owner of the ship.

When disputed owners can demonstrate a prima facie case that they are the lawful owners of the ship, they have a reasonable and legitimate interest in securing the physical presence of the ship until the ownership dispute is settled. Moreover, there is, in general, a considerable practical need for arrest in these situations.

A disputed owner's reasonable interest in securing the physical presence of the ship is protected under the convention. According to Article 1.1 (s),claims regarding ownership of the vessel are defined as maritime claims, and Article 3.1 (d) permits arrest for maritime claims regarding ownership of the vessel. It seems fairly clear that the convention gives a disputed owner the right to arrest the ship.

The question is whether Article 3.3 lays down conditions for the right of a disputed owner to arrest the ship. It is clear from the wording of Article 3.3 that the provision primarily is contemplated to lay down conditions for arrest for monetary claims. Despite the reference in Article 3.3 to Article 3.1 (d), regarding a disputed owner's right to arrest the ship, it is questionable whether it was indeed intended that Article 3.3 should be applicable in these situations. The doubt whether Article 3.3 lays down conditions for a disputed owner's arrest of the ship is further accentuated by the fact that Article 1.1 (s) and Article 3.1 (d) make it clear that a disputed owner has a right to arrest the vessel.

Finally, even if Article 3.3 should apply to a disputed owner's arrest of the ship, it is still questionable whether it actually will exclude the disputed owner from arresting the ship. Article 3.3 only lays down the condition that the claimant should have a right to demand the sale of the ship if an arrest should be permissible under Article 3.3. If it is subsequently established by a judicial decision that a disputed owner actually is the owner, the owner will have the right to demand the sale of the ship, and the condition in Article 3.3 is fulfilled.

It is true that the convention seems to protect a disputed owner's right to arrest. Nevertheless, it would be desirable that the convention clearly expressed that the prerequisite in Article 3.3 does not form an obstacle to a disputed owner's right to arrest the ship.