2.2 Ragnar Knoph and his opposing views
Platou’s successor as maritime law professor, Ragnar Knoph, was critical of much of Platou’s thinking, which Knoph saw as unduly succumbing to Roman law principles. In Knoph’s era, the Collision Convention 1910 had been incorporated into the MC (through its revised s. 220) with the solution as we still know it today (in MC s. 161): the degree of fault on each ship determines the liability towards the other ship. Knoph considered such a solution to be close to self-evident; hence he was critical of the legal position under the earlier MC s. 220, on which he remarked:
”Both legal commentary and case law understood this [earlier] provision to mean that the ship which had the lesser blame would never have to cover any part of the other ship’s damage, even if this [i.e. the damage arising from the lesser blame] in relation to the entire inflicted damage was greater than what followed from its degree of fault”.(1) Knoph p. 305; “… var større enn dets skyldbrøk tilsa.» This and subsequent quotes in my translation.
Knoph gave an example to illustrate the (in his view) unreasonable consequence of such a solution: “[S]hip A which has ¼ of the blame, is barely damaged by the collision. Ship B, on the other hand, is damaged to a value of NOK 100.000.”(2) Knoph p. 305 fn 2. – with Knoph surmising that in this case ship A ought to cover NOK 25.000 of ship B’s losses.
Knoph also commented on the earlier position of letting each ship bear its own loss when being equally to blame:
“Moreover, the provision seemed to presuppose that when the ships were equally to blame, neither of the ships should be awarded any damages, even though one of them was hardly damaged, while the other sank and was lost.”(3) Knoph p. 305. Knoph found this solution to be untenable and he partly ridiculed Platou by referring to Platou’s book (p. 488) that such a solution would accord with “the correct (riktige) rule of general tort law”.(4) Knoph p. 305 fn 3.
Knoph went on to explain how in his view the amended provision of MC s. 220,(5) The provision stated, in line with today’s MC s. 161: “If there is fault on both sides, each party shall compensate for the damage in proportion to the faults committed on each side.” implementing the Collision Convention, had brought clarity to the law:
“[T]he Brussel Convention however enacted the apportionment principle in a clear and concise fashion, and in order to bring Norwegian law in accordance with the convention, MC s. 220 was amended in 1913. It now states with full clarity that in all situations where there is blame on both sides, the one ship shall compensate so much of the other ship’s damage as shall correspond to the percentage of blame for the collision which is imputed to that ship. Each ship will then of course also bear a corresponding part of its own loss. If the one ship’s percentage of blame is less than 1/2, it will not for that reason be exempted from its liability in damages, and where both ships are equally to blame, the duty to compensate is not forfeited, but the aggregate damage is ‘shared equally’, as the Code puts it. A different point is that in the final calculation of damages only one of the ships has a duty to pay anything, since the two payment obligations are, naturally, set-off against each other, as far as is allowed for.”(6) Ibid p. 306.
Moreover, Knoph believed that the solution found in the revised MC s. 220 reflected a general principle in Norwegian tort law, despite the wording of the (by then) enacted PCIA s. 25 indicating otherwise through its wording, which was close to that of the previous MC s. 220.(7) The PCIA s. 25 read: “If [the claimant] has contributed to the damage through negligence (uaktsomhet) the question of if and to what extent damages shall be awarded, is determined by the court based on the nature of the fault (feil) committed by each side and their influence on the damage.” (my emphasis) Knoph stated:
“At first glance it seems that the Maritime Code adopts the apportionment system in a different form to that of the Penal Code Implementation Act s. 25, and in accordance with other considerations. The common understanding of this provision [s. 25] is that the damage is not only to be apportioned according to the blame (skylden) but also according to the remoteness (adekvansen), considering the committed faults’ (de begåtte feils) ‘impact on the damage.’ No apparent difference seems to exist, however, since the remoteness (adekvansen) in reality slips in as an element in the assessment of the degree of blame (skyldens grad).”(8) Knoph p. 305.
Knoph did not explicate the latter phrase concerning remoteness (adekvans), but the following paradox ensued: Knoph wanted to move away from what he believed to be remnants of Roman law in Platou’s recommendation of letting each ship bear its own loss when being equally to blame, while Platou believed this was not a reflection of Roman law but instead of Norwegian tort law principles concerning remoteness of damages (adekvans).
Apart from these points of departure between Knoph’s and Platou’s thinking, Knoph did not take issue with Platou’s view that the concept of fault (skyld) in ship collision cases should be assessed objectively (based on the ship’s ‘faulty’ manoeuvre) without regard to the subjective fault of those onboard.(9) Knoph p.304.