6.5. Some reflections
This decision concerns the duties of the shipbroker towards the person who has engaged his services. The broker’s obligations towards his client, he potential counterparty to the intended transaction, are set out in the Act on Real Property Brokerage (Act 73/2007) Section 6-3 on good brokerage: the broker shall in the course of his profession act in accordance with “good brokerage practice with consideration for the interests of both parties”. There is no explicit rule on this for ship brokerage, and the ethical rules Sections 3 (cf. 2 above) and 4 do not indicate a similar rule. In any case, the decision of the Court in this case does not consider the interests of the buyer.
The issue here is instead the shipbroker´s obligations towards the instructing party, and in this respect the following is noteworthy:
It is surprising that the broker did not confirm in writing what he considered to be his task, based on the telephonic instructions.
It is even more surprising that the following day the broker sent an exclusive offer with the price of NOK 320 million to the group of five - without first obtaining assent from the seller or, at minimum, sending a copy of the offer to the seller.
These two elements are, as I see it, sufficient to characterize the broker´s conduct as grossly negligent. In addition to this, criticism can be made of the handling of the alternative sale of shares.
On the other hand, the manner and extent of the Court’s discussion of the delayed reaction by the seller is somewhat remarkable. The sale was formalized on 15th June 2020. The discussion thereafter resulted in a sale of shares on 3rd November 2020. In January, 2021, the broker sent his bill of commission, and half of the amount was paid (I presume) reasonably quickly. The seller´s complaint came, however, more than one year thereafter, viz. as a writ. This implies contra arguments from the broker: that the complaint came too late, bearing in mind that the seller ought to have been fully aware of the broker´s performance back in January 2021. This is a valid argument, according to general principles, but the Court says that there is no need to take account of such delay when negligence is gross. Furthermore, the seller´s passivity and lack of activity indicated that the seller had in fact accepted the contract (conclusive behaviour – Norwegian: konkludent adferd). However, only the dissenting judge made some remarks on conclusive behaviour.