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Scandinavian Maritime Law
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Preface
1 Introduction
1.1 What is maritime law?
1.2 The unique characteristics of maritime law
1.3 The topics to be examined
1.4 Sources of law
1.4.1 The Maritime Code and other legislation
1.4.2 Interpretation of statutes
1.4.3 Contracts and their interpretation
1.4.4 Case law, including arbitration awards
1.4.5 Legal literature
1.4.6 Conventions
1.5 Jurisdiction and choice of law
1.5.1 Court jurisdiction and rules dealing with forum
1.5.2 Jurisdiction agreements
1.5.3 Choice of law
1.5.4 Arbitration
1.5.5 Satisfaction of judgments and arbitration awards – enforcement
1.5.6 Arrest of ships and cargo
2 Ships, nationality and registration
2.1 Ships – definition
2.1.1 Characteristic features
2.1.2 When does a construction become a ship and when does this status cease?
2.1.3 Appurtenances of a ship
2.1.4 Identification of ships
2.2 Nationality and registration
2.2.1 The significance of nationality
2.2.2 When is a ship considered Norwegian? The rules under international law
2.2.3 The Norwegian International Register (NIS)
2.2.4 The two purposes of registration
2.2.5 Conditions for registration in the ordinary Norwegian ships’ register (NOR)
2.2.6 Conditions for registration in the NIS
2.2.7 Particular implications of registration in the NIS
2.2.8 Structure of the registers, registration procedures and legal protection associated with registration
2.2.9 Registration of ships under construction
3 Ship safety and classification
3.1 The Ship Safety and Security Act
3.1.1 The Seaworthiness Act of 1903 and the need for reform
3.1.2 Ship Safety and Security Act – goals and principles
3.1.3 The Scope of application of the Ship Safety and Security Act
3.1.4 Responsible party
3.1.5 Safety Management System, ISM Code
3.1.6 The requirements applicable to the individual ship – some examples
3.1.7 The exercise of public supervision/control
3.1.8 Monitoring foreign ships. International cooperation
3.2 Classification
4 Shipbuilding and repair contracts
4.1 Shipbuilding – legal background
4.2 The shipbuilding contract
4.2.1 Negotiations and contracting
4.2.2 Description of the ship (art. II)
4.2.3 Change orders
4.2.4 The building phase: Approval of plans; supervision and tests; risk allocation
4.2.5 Tests and trials
4.2.6 Delivery date and delivery
4.2.7 Price and payment terms
4.2.8 Builder’s default
4.2.9 Additional comments regarding registration, financing and insurance
4.3 Repair of ships – generally
4.4 The main features of the repair contract of 1985, revised 1997
4.4.1 The scope and quality of work
4.4.2 Delivery time
4.4.3 Price and manner of payment
4.4.4 Sanctions available for breach of contract
4.4.5 Other damages
5 Purchase and sale of ships
5.1 Introduction
5.2 The basic problem: What is purchased? Description and inspection
5.2.1 The buyer’s need to inspect the ship
5.2.2 Inspection after the contract is signed
5.2.3 “Outright sale”
5.3 Description of the ship
5.4 What is included in the sale
5.5 Place and time of delivery: “closing”
5.6 Price and method of payment
5.7 Default
5.8 Disputes – Jurisdiction and choice of law
5.9 Sale of ships for demolition
6 Mortgages, enforcement liens, maritime liens and rights of retention
6.1 Introduction: The vessel as security for claims
6.2 Maritime liens – General description and historical background
6.3 What claims are secured by a maritime lien and what are the priorities?
6.3.1 Claims secured
6.3.2 Priority of maritime liens
6.3.3 Foreign maritime lien claims
6.4 Maintenance of maritime liens. Limitation period
6.5 Ship mortgages
6.5.1 The mortgagee’s position – Particular risks
6.5.2 The scope of mortgage rights
6.5.3 The mortgagee’s legal protection as against third parties
6.5.4 Mortgaging a vessel share
6.5.5 Additional comments on mortgages of ships under construction
6.6 Enforcement liens
6.7 Foreclosure
6.7.1 Introduction
6.7.2 Grounds for enforcement
6.7.3 Default
6.7.4 Forced sale
6.7.5 Forced use
6.7.6 Enforcement on the basis of foreign rights. Auction abroad
6.8 The right of retention (possessory lien)
7 Ways of structuring shipowning entities
7.1 “Shipowner” and “shipowning company” – Definition
7.1.1 A preliminary note on Norwegian terminology
7.1.2 Everyday usage
7.1.3 The legal significance of the terms
7.1.4 Summary
7.2 Forms of organisation employed in ship ownership and operation
7.2.1 Registration of companies
7.2.2 Sole proprietorships
7.2.3 Part-owners/partnerships/joint ownership
7.2.4 Limited partnerships
7.2.5 Limited liability companies or corporations
7.2.6 Transfer of the shipowner’s functions
7.2.7 The international perspective
7.3 Pool agreements and joint ventures
7.4 Management agreements
7.5 Other intermediaries and assistants
7.5.1 Agents
7.5.2 Stevedores
7.5.3 Pilots and tugboats
7.5.4 Suppliers
7.5.5 Shipyards and travelling squads
7.5.6 Brokers
7.5.7 Freight forwarders and liner agents
8 Liability
8.1 Types of damage and causation
8.2 Ordinary principles of liability
8.2.1 Introduction
8.2.2 The tortfeasor’s liability for negligence
8.2.3 The shipowner’s vicarious liability
8.2.4 Strict liability
8.2.5 Claims for personal injury
8.2.6 Liability arising out of contract
8.2.7 Limitation of liability. Indexing
8.3 The scope of the shipowner’s vicarious liability (with particular focus on torts)
8.3.1 Introduction
8.3.2 The legal relationship between shipowner and assistant
8.3.3 The nature of the service provided
8.3.4 Categories of assistants
8.4 Scope of the shipowner’s contractual liability
8.5 Limitation of actions – An overview
9 Limitation of shipowners’ liability
9.1 Background
9.2 When do the rules in MC Chapter 9 apply?
9.2.1 Who can invoke the rules?
9.2.2 What counts as a ship in this context?
9.3 The scope of limitation
9.3.1 In general
9.3.2 The individual claims
9.3.3 “Privity”
9.3.4 The principle of single liability
9.4 How liability is limited in practice
9.4.1 The principles
9.4.2 Limitation funds – Guidelines
9.4.3 The limitation fund – Special rules
9.4.4 One or more incidents?
9.4.5 An example, cf. MC § 175
9.4.6 Claims by the owner against the limitation fund
9.5 Procedural rules. Effect of the establishment of a fund
9.5.1 Limitation without establishment of a fund
9.5.2 Establishment of a limitation fund
9.6 Other limitation rules
9.6.1 Contracts of affreightment
9.6.2 Oil pollution
9.6.3 Dangerous cargoes – HNS
10 Oil pollution liability, HNS liability and other environmental liability
10.1 Introduction
10.2 The international rules on liability for oil pollution: Background and development
10.3 Overview of the Norwegian rules on liability for oil pollution
10.4 Convention-based liability for tankers
10.4.1 Scope of application
10.4.2 Strict liability
10.4.3 Responsible party. Channelling of liability
10.4.4 Limitation of liability. Limitation fund
10.4.5 Compulsory insurance
10.4.6 The international compensation fund 1992 and the international supplementary fund 2003
10.4.7 Limitation of actions
10.5 Convention-based liability for bunker oil pollution damage
10.5.1 Introduction
10.5.2 Scope of application
10.5.3 Strict liability
10.5.4 The responsible party. Channelling of liability
10.5.5 Limitation of liability
10.5.6 Insurance obligation
10.6 Other provisions concerning liability for oil pollution
10.6.1 Non-convention-based liability for oil pollution
10.6.2 Liability for oil pollution damage subject to global limitation
10.6.3 Liability for oil pollution pursuant to the Petroleum Act
10.7 HNS liability
10.7.1 The national and international regulations
10.7.2 Scope
10.7.3 Strict liability. Exceptions to liability
10.7.4 Responsible person. Channelling of liability
10.7.5 Limitation of liability. Limitation fund
10.7.6 Obligation to insure
10.7.7 The HNS fund
10.8 Other environmental liability
10.9 Responsibility for wreck removal
11 Liability for collisions
11.1 Introduction
11.2 The central rules on liability
11.2.1 When only one ship is at fault
11.2.2 When both are to blame
11.2.3 Accidental collisions
11.2.4 Collisions between three or more ships
11.2.5 Liability for acts based on necessity
11.2.6 Cross or single liability?
11.3 Liability for cargo claims
11.3.1 The Maritime Code
11.3.2 American law
11.4 Liability for personal injury
11.5 The evaluation of fault
11.5.1 Introduction
11.5.2 The Rules of the Road
11.6 The measure of damages
11.7 Prescription, maritime liens and insurance cover
11.8 Collisions with other structures
12 The legal position of the crew
12.1 Introduction
12.2 The scope of the Ship Labour Act. Mandatory provisions
12.3 The relationship between the parties and allocation of responsibility
12.4 Appointment, work tasks, salary etc.
12.4.1 Appointment
12.4.2 Work tasks and qualifications. The ship’s master
12.4.3 Salary and other benefits
12.5 Working environment and personal safety
12.6 Termination of employment relationships
12.6.1 General rules
12.6.2 Unfair dismissal
12.6.3 Summary dismissal and suspension
12.6.4 Disputes concerning employment
12.7 Right to leave of absence
12.8 Duties relating to care. The service on the ship. Protection against discrimination
12.9 Special rules for employees on NIS-registered ships
13 Contracts of affreightment – an overview
13.1 Ways of employing a ship in trade
13.1.1 The two extremes
13.1.2 The liner trade
13.1.3 Chartering
13.1.4 A wide-ranging transfer of functions: Leasing
13.1.5 Options to purchase
13.2 Contracts of affreightment
13.2.1 The term
13.2.2 Bills of lading and sea waybills
13.2.3 Voyage charters
13.2.4 Time charter party
13.2.5 Bareboat charter party
13.2.6 Tramp bills of lading
13.3 The parties to a contract of affreightment
13.4 The use of the forms of contract in practice
13.5 Sources of law
14 Bills of lading and waybills: Liability for damage, loss and delay; incorrect description of goods
14.1 Introduction
14.1.1 The liability of the carrier
14.1.2 The underlying sale and the bill of lading
14.1.3 Procedure for delivery of the goods to the carrier
14.1.4 A summary of the functions of the bill of lading
14.1.5 Alternatives to bills of lading
14.2 The liability of the carrier: background and content
14.2.1 Introduction
14.2.2 Freedom of contract abused?
14.2.3 The Hague-Visby Rules
14.2.4 Hamburg Rules 1978
14.2.5 Scandinavian solutions
14.2.6 The future perspective
14.3 The main rules relating to carrier liability for damage and delay under the Maritime Code 1994
14.3.1 Claimant and defendant – the different interests. An outline
14.3.2 Overview of conditions for liability pursuant to MC § 275 (13:25) – Damage to or loss of goods
14.3.3 The basic rule regarding the basis of liability
14.3.4 Vicarious liability
14.3.5 Exemption from liability for navigational errors under MC § 276 (13:26) first paragraph no. 1
14.3.6 Exemption from liability in case of fire, MC § 276 (13:26) first paragraph no. 2
14.3.7 Unseaworthiness and the exemptions in § 276 (13:26)
14.3.8 The Hague-Visby Catalogue – Letters c to p
14.3.9 Fault by the injured party. Concurrent causes
14.3.10 Deck cargo and live animals
14.3.11 Dangerous cargo
14.3.12 The special rules applicable to Norwegian domestic trade
14.4 The scope of liability
14.4.1 Introduction
14.4.2 Standardised loss rule in MC § 279 (13:29)
14.4.3 The unit limitation rules
14.4.4 Limitation rules in Norwegian domestic trade
14.5 A note on burden of proof, notice and time bars
14.6 Liability for delay
14.6.1 The ordinary rules
14.6.2 Delay in Norwegian domestic trade
14.7 Deviation
14.8 Risk allocation and insurance
14.9 Can the liability rules in MC §§ 274 (13:24) et seq. be avoided by contract or otherwise?
14.9.1 Introduction
14.9.2 The scope of application for MC Chapter 13 pursuant to MC § 252 (13:2)
14.9.3 To what extent are the Norwegian rules mandatory?
14.10 Description of the goods in the bill of lading. Consequences of misdescription
14.10.1 The problem
14.10.2 The information to be included in the bill of lading
14.10.3 Carrier’s duty to see to it that the information in the bill of lading is correct – Duty to investigate and make reservations pursuant to MC § 298 (13:48)
14.10.4 Carrier’s liability for information in the bill of lading
14.10.5 Shipper’s liability to carrier
14.10.6 Shipper’s need for a “clean” bill of lading – “Back letters”
14.10.7 Are the rules on the content of bills of lading and liability for incorrect description mandatory?
14.11 Delivery and liability for wrongful delivery
14.11.1 Duties of cargo interests
14.11.2 Liability for wrongful delivery
14.12 Sea waybills
14.12.1 Introduction
14.12.2 What is a waybill?
14.12.3 What are the consequences of issuing a sea waybill?
14.12.4 When are sea waybills issued and whom are they issued to?
14.12.5 If the requirements for a sea waybill are not satisfied
14.12.6 So-called “document-free carriage”
14.13 Waybills used in coastal carriage
14.14 Questions relating to freight and expenses
14.15 Liability for cargo damage against persons other than the contracting carrier, including vessel personnel
14.15.1 An overview
14.15.2 Cargo claims against crew, stevedores etc.
14.16 Contractual and actual carrier – Use of third party tonnage. Combined carriage
14.16.1 Introduction
14.16.2 Entitlement to use a sub-carrier
14.16.3 Consequences of authorised use of a sub-carrier – Subject to mandatory rules?
14.16.4 Obligations of the contractual carrier when a sub-carrier is used
14.16.5 The obligations and liability of the actual carrier (sub-carrier)
14.16.6 Joint and several liability of the contractual carrier and sub-carrier – MC § 287 (13:37)
14.16.7 Several carriers – An example
14.17 Combined or multimodal transports – The Geneva Convention of 1980
14.18 The Rotterdam Rules 2009
14.18.1 Introduction
14.18.2 The maritime carriage
14.18.3 The documentation of the carriage
14.18.4 The area of application and mandatory aspect of the rules
14.18.5 The sea carrier’s relationship to other transport modes
15 Voyage chartering
15.1 Introduction
15.1.1 Definition and legal sources
15.1.2 Standard contracts and fixture procedure
15.2 The ship
15.2.1 Description of the ship to be chartered
15.2.2 Named or unnamed ship. Carrier’s identity
15.2.3 The ship’s cargo capacity
15.2.4 Loading/discharging equipment etc.
15.2.5 Seaworthiness
15.2.6 “Vetting” and “eligibility”
15.2.7 Some additional remarks on part chartering
15.3 Time allowed for performance of the voyage. Performance of the voyage. Deviation
15.3.1 The time factor
15.3.2 When should loading commence?
15.3.3 Performance of the voyage. Deviation
15.4 Ports of loading/discharging and places of loading/discharging
15.4.1 Distinction between port of loading and place of loading
15.4.2 Safe port/berth. Damage to the ship
15.4.3 “Near” clauses and some related charter clauses
15.5 The cargo
15.6 The loading and discharging process
15.6.1 The loading process and associated expenses
15.6.2 Loading time: laytime, demurrage
15.7 Freight and allocation of expenses
15.7.1 Calculation of freight
15.7.2 Freight risk and liability for cargo damage
15.7.3 Who is the freight debtor?
15.7.4 Security for the freight claim
15.7.5 Voyage expenses
15.8 Issues relating to cargo damage
15.8.1 Introduction
15.8.2 The rules of the Maritime Code
15.8.3 Is the Maritime Code mandatory?
15.8.4 Freedom of contract
15.9 Bills of lading issued under voyage charters. Indemnity claims
15.9.1 Issuance of bills of lading and consequences thereof
15.9.2 Incorporation of charter party terms into the bill of lading
15.9.3 Indemnity actions brought by the owner against the charterer
16 Time chartering
16.1 Introduction
16.2 The ship and its description
16.2.1 Introduction
16.2.2 Cargo capacity and loading/discharging equipment
16.2.3 Speed and consumption
16.2.4 Seaworthiness
16.3 Duration
16.3.1 “Delivery” and “redelivery” procedures
16.3.2 “Redelivery”
16.3.3 “Overlap” and “underlap”
16.3.4 Charterer’s options
16.4 Trading area, cargo options and individual voyages
16.4.1 Trading area
16.4.2 Permitted cargo
16.4.3 Performance of the individual voyages
16.5 Allocation of operational responsibilities and costs
16.6 Charter hire – amount, payment and risk
16.6.1 Calculation of hire
16.6.2 Method and place of payment
16.6.3 Default in payment of hire
16.6.4 Security for hire payments – the “lien” clauses
16.6.5 Rules concerning off-hire
16.6.6 Off-hire clauses in selected charter parties
16.6.7 Settlement of off-hire
16.7 Liability for damage to cargo
16.7.1 Introduction
16.7.2 Cargo damage claims brought by the time charterer
16.7.3 Liability under bills of lading
16.7.4 Recourse against the time charterer
17 Other contracts of affreightment
17.1 Charter party for consecutive voyages
17.2 Quantity contracts
17.3 Bareboat charter
18 Carriage of passengers and luggage
18.1 Introduction
18.2 Contract and statutory rules
18.3 The carrier’s obligations
18.4 Transfer of and withdrawal from the passenger’s right of carriage
18.5 About the carrier’s remuneration
18.6 Concerning liability for personal injury, MC § 418
18.6.1 General view
18.6.2 Competence to bring a claim
18.6.3 Personal injury under MC § 418 first paragraph (15:1) which refers to the Athens Protocol
18.6.4 Personal injury under MC § 418 second paragraph (15:1 and 15:2): transport in Norway
18.6.5 Personal injury under MC § 418 second paragraph: transport which is covered by the Convention but not by the Protocol
18.6.6 Status of the injured party
18.6.7 Claims against parties other than the contracting carrier
18.7 MC § 418a (15:1) concerning the Passenger Rights Regulations
18.7.1 Introduction
18.7.2 The Passenger Rights Regulations Chapter 1: General provisions
18.7.3 Passenger Rights Regulations Chapter II: Disabled Passengers and Passengers with reduced mobility
18.7.4 Passenger Regulations Chapter III: Obligations where the voyage is delayed or cancelled
18.7.5 Passenger Rights Regulations Chapters IV and V: Information, complaints and enforcement rules
18.8 Delay in carriage of passengers
18.9 Luggage – Damage and delay
18.9.1 Summary
18.9.2 What is luggage?
18.9.3 Damage to or loss of luggage
18.9.4 Delayed luggage
19 Salvage
19.1 Introduction
19.2 Conditions for obtaining a salvage award
19.2.1 What property or interests can be subject to salvage?
19.2.2 The salved property must be “wrecked” or “in danger”
19.2.3 The principle of “no cure no pay”
19.2.4 Salvage agreements
19.3 The right to salve
19.4 Assessment of the salvage award
19.5 Special compensation
19.6 Actions by the salvor which may result in loss or reduction of the salvage award or special compensation
19.7 Apportionment of the salvage award
19.8 Liability for salvage awards and special compensation. Security, maritime liens and insurance cover. Limitation of actions
20 General average
20.1 Introduction
20.2 What is a general average act?
20.2.1 The principle of common safety
20.2.2 The principle of common benefit
20.2.3 If the danger is caused by one of the parties
20.3 What is compensated in general average?
20.4 Determining the value of the contributing interests
20.5 General average contributions. Liability for general average contributions. Maritime lien. Insurance cover. Time bar
21 Investigation of marine accidents
21.1 Introduction
21.2 Scope of application of the rules
21.2.1 Which ships are covered by the rules?
21.2.2 There must have been a “marine accident”
21.3 Who shall perform the investigation?
21.4 Which marine accidents must be investigated (mandatory investigation)?
21.5 Duty of disclosure
21.6 The procedure applicable to investigations of marine accidents
22 Marine insurance – overview and general questions
22.1 Introduction
22.2 The sources of law
22.3 The insurance contract
22.3.1 The parties to an insurance contract
22.3.2 Concluding the insurance contract
22.3.3 Jurisdiction and choice of law
22.3.4 Insurance period
22.4 Insurable interest, insurable value and sum insured
22.4.1 The interest insured
22.4.2 Insurable value and sum insured
22.5 Scope of cover: Perils insured against, causation and losses covered
22.5.1 Scope of cover
22.5.2 Perils insured against
22.5.3 Causation
22.6 The duties of disclosure and due care
22.6.1 Overview
22.6.2 The duty of disclosure
22.6.3 Alteration of the risk
22.6.4 Casualties caused by the assured
22.6.5 Safety regulations
22.6.6 Duty to notify and duty to avert or minimise the loss
22.6.7 Identification (privity)
22.7 Costs of measures to avert or minimise the loss
22.7.1 Introduction
22.7.2 Insurance cover of general average contributions
22.7.3 Particular measures taken to avert or minimise loss
22.8 The relationship between maritime law and marine insurance law: An example
23 The individual types of insurance
23.1 Introduction
23.2 Hull insurance
23.2.1 What objects are covered by hull insurance?
23.2.2 Scope of cover: an overview
23.2.3 Total loss
23.2.4 Damage
23.2.5 Liability of the assured arising from collision and striking
23.3 Total loss insurances
23.3.1 Introduction
23.3.2 Main features of the cover
23.3.3 Restrictions on the right to effect separate total loss insurances
23.4 War insurance
23.4.1 Introduction
23.4.2 Scope and termination
23.4.3 Total loss
23.4.4 Damage
23.4.5 Loss of time
23.4.6 Owner’s liability
23.4.7 Occupational injury insurance
23.5 Loss of hire insurance
23.5.1 Introduction
23.5.2 Main rules regarding the insurer’s liability
23.5.3 Calculation of the loss
23.5.4 The insurance settlement
23.6 P&I Insurance
23.6.1 Introduction
23.6.2 The P&I insurer and compulsory liability insurance
23.6.3 The general rules concerning the scope of cover
23.6.4 Liability for claims relating to persons
23.6.5 Liability connected to cargo
23.6.6 Liability for collision and striking
23.6.7 Pollution liability
23.6.8 Other liability
23.6.9 The position of the injured party: Direct action
23.7 Cargo insurance
23.7.1 Introduction
23.7.2 Who is the beneficiary of the insurance?
23.7.3 Total loss
23.7.4 Shortage
23.7.5 Damage
23.7.6 Insurance settlement
23.7.7 Subrogation claims against third parties
Abbreviations
Table of cases
Table of statutes
The Swedish Maritime Code of 9 June 1994 (1994:1009)
Index
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