1 The topic
In both-to-blame ship collisions two legal phenomena are in play: negligence as a basis of liability for damage to the other ship, and negligence as the claimant’s (skadelidtes) contribution to the damage to its own ship. In that sense, ship collision cases exhibit phenomena of general interest to tort law. Nonetheless, there are two distinct sets of rules under Norwegian tort law (and similarly under most legal systems). There is the Torts Act s. 5-1, dealing with contributory negligence (in the Act entitled “contributory liability”) in general, and then there is the Maritime Code (MC) s. 161, governing ship collisions and providing for negligence (fault) as a mutual basis for liability.
More specifically: the MC provides for apportionment of damages by each ship’s degree of negligence serving as a basis of liability towards the other ship, while at the same time (logically) regulating each ship’s contribution to its own damage. The Torts Act s. 5-1, on the other hand, does not envisage two parties being liable towards one another, but instead, merely a reduction in a claimant’s right to damages against a tortfeasor, based on contributory negligence by the claimant. However, in ship collisions one could in theory start by applying the Torts Act to assess each ship’s contribution to its own damage and, then, potentially letting the outcome of that assessment determine whatever liability towards the other ship – which we shall see is not inapt from a historical perspective.
Despite this interlink between the two sets of rules there is a conspicuous lack of cross reference in contemporaneous legal literature from maritime regulation to general tort law, and vice versa. But historically that was not the case. The maritime law rule on both-to-blame ship collisions existed about 40 years before the general tort law rule of contributory negligence was enacted. The fault-based ship collision rule was enacted in the MC of 1860 s. 80, with slight revision in 1893 and 1913, as brought into today’s MC 1994 s. 161 – and the general tort rule was enacted in the Penal Code’s Implementation Act (PCIA) of 1902 s. 25, later brought into today’s Torts Act 1969 s. 5-1.
Historically, standard volumes of tort law contain such cross referencing from one set of rules to the other. In Øvergaard, Norsk erstatningsrett, from 1942(1) Later edition from 1958 – hereafter Øvergaard. around 70% of his chapter entitled “claimant’s contribution” (skadelidtes medvirkning) consists of ship collision cases. The same tendency exists the other way around. Both Platou’s maritime law volume from 1900(2) Platou, Norsk Søret – hereafter Platou. and Knoph’s maritime law volume from 1931(3) Knoph, Sjørett – hereafter Knoph. contain extensive references from ship collision law to notions of contributory negligence in general tort law.
One could ask: why is this type of cross reference absent in our times? The legal phenomena – mutual liability in ship collisions and claimants’ contributory negligence in general tort law – have just as much in common now as it had back then. In other words, there seems to be good grounds for giving renaissance to the phenomena, since one set of rules may shed light on the other, which can enrich our understanding of both. We will start by looking into the history of the topic and proceed by problematizing a selection of more recent court cases in view of the historical approach.