2.1 Oscar Platou and his modernization project
It seems logical to look at the development chronologically, taking as a starting point the influential legal scholars and the state of law as it existed at various points in time, along with the related disagreements.
Professor Oscar Platou was influential in maritime law (and in private law in general) in the period from around 1880 to 1920. He was preoccupied with what could be called his project of modernization of the law, within which maritime law played an important part. He emphasised that fault-based rules in ship collisions, and thus questions of claimants’ contributory negligence, already formed part of the Maritime Code from its initial inception in 1860 (through its s. 80). From an international perspective he believed that the fault-based collision system of the Maritime Code contained a more modern and advanced solution than that found in most seafaring nations’ legal systems.(1) Platou pp. 478-482. He further advocated the view that the fault-based solution of the Maritime Code should be seen as reflection of general principles of tort law, heralding and serving as rationale for the general rule of contributory negligence enacted around 40 years later.(2) Platou p. 482.
Platou opposed the Roman law solution of apportionment of blame (compensatio culpae) as found at that time for example in English law, whereby negligence on the claimant’s part negated the defendant-tortfeasor’s negligence as a basis of liability: if the claimant had negligently contributed to his own loss, he was awarded no damages. Platou considered this English law position to be “the most retarded” (den mest tilbakestående),(3) Platou p. 481. in that it gave no room for half-way solutions, as did Norwegian maritime law.(4) To be more precise: English law provided for a solution whereby, in both-to-blame situations, each party bore half of the aggregate losses of ships and cargoes, with no room for intermediate solutions based on the degree of the respective faults, Platou p. 481. In this he was correct, in the sense that the maritime law solution in the later Collision Convention 1910, as ratified by England, served as a stepping stone to English law eventually introducing a general system for contributory negligence, through its Contributory Negligence Act 1945. Any standard English volume on tort law illustrates how, in that sense, maritime law inspired and shaped an important part of English general tort law.(5) See e.g. John Cooke, The Law of Tort, 2017 p. 220.
Moreover, Platou discussed concepts of strict liability and causation in Norwegian law, in the following con Norwegian legislation all the way back to the 13th century (Magnus Lagabøtes Landslov) showed examples of how considerations of causation relating to a claimant’s contribution to his own losses, affected the extent (quantum) of a defendant-tortfeasor’s liability in cases where, as a starting point, such liability was strict in nature.(6) Platou p. 478.
Platou used the Germanic law inspired maritime rules of Roles d’Olerone as an example of the opposite, and in his view more primitive, legal thinking. Since under those rules moving ships were deemed liable for harm inflicted to ships lying stationary, it had happened that owners of sub-quality ships had placed them in the way of moving ships in order to have them run over and then claim damages, thus profiting from the incidence ‘caused’ by moving ships.(7) Platou p. 478.
Platou further commended Norwegian law for abolishing the General Average-like collision system found in other legal systems (such as the English), whereby in ship collisions the aggregate value of ships and cargos as a single passivum was awarded according to the degree of fault on each ship. In other words, an insolvency-like apportionment of aggregate losses.(8) Platou p. 481. According to Platou this approach was the result of ideas of identification (mutual imputation of liability) between ship and cargo which were obsolete in the context of modern commercial realities.(9) Platou p. 479.
In that respect Platou contributed to what he saw as being a further modernization of the MC. He chaired the Maritime Law Commission which in the MC 1893-version (s. 220) revised the previous MC 1860 (s. 80). The thinking behind the revision was this: the MC 1860 s. 80 stated that in the case of both-to-blame collisions, damages were to be determined according to each ship’s respective fault “and the other circumstances of the case” (og Sakens øvrige Omstendigheter).(10) The entire s. 80 read:” If the collision is not caused by intent or negligence (forsæt eller uagtsomhed) by any of the sides, no compensation for the losses is awarded, but each ship bears its own loss. If fault (feil) is committed on both sides, the court shall, according to the nature of the misdemeanor (forseelse) committed by each side and the other circumstances of the case, determine if and what level of damages should be awarded to either of the parties.” (my emphasis) The courts had applied this latter phrase in such a way that the value of ships and cargo was taken into account when determining the apportionment of damages. This, Platou believed, was paying undue heed to obsolete systems of General Average influenced calculation (above), disregarding modern notions of fault-based apportionment.(11) Platou p 485 To prevent the courts from adopting such obsolete thinking, the 1893 revision, in its s. 220, omitted the phrase “and the other circumstances of the case”, and instead stated (in its entirety): “If there is fault (skyld) on both sides, the court shall, by having regard to the nature of fault on each side, determine if, and in what amount, damages should be paid by one of the parties, or if each ship should bear its own loss.”
This discretionary rule was applied in subsequent case law in such a way that the courts often held it appropriate to let ship,A, having the lesser blame, cover parts of its own losses but without it being liable for the damage inflicted on ship B – and in cases of equal degree of blame, to let each ship bear its own losses, rather than being liable to cover half of the other ship’s losses.(12) Ref. the final phrase of s. 220: “… or each ship bearing its own losses”. The thinking was that the degree of blame for having to bear one’s own loss (a claimant’s contributory negligence) would not necessarily correspond to the degree of blame as a basis of liability towards the other ship; it could often appear arbitrary from each ship’s perspective as to what damage would be incurred by the other ship,(13) While the degree of damage to its own ship would be reasonably foreseeable. and these values should therefore not form part of the discretionary apportionment of damages. In other words, topics of foreseeability and remoteness of damages (adekvans) were given a role in disregarding the (often coincidental) extent of damage to the other ship and its cargo.