2.3 Jan Øvergaard – an attempt at a rejoinder
Then came Øvergaard and his attempt to merge the earlier differing views. Øvergaard disagreed with Knoph’s view that the MC rule disposed with the Roman compensatio culpae all together, by pointing to the fact that the PCIA s. 25 was left unamended when the MC s. 220 was revised in 1913 – and that the non-amended PCIA s. 25 could, according to its wording, lead to each party having to bear its own losses when being equally to blame. That is, each party seen as claimants in the PCIA s. 25 sense, might under that rule have to bear its own losses, rather than being liable for 50% of the other party’s losses. Øvergaard believed both solutions were open to use by the courts in ship collision cases,(1) Øvergaard p. 258. but he gave a recommendation along the lines advocated by Knoph; that in situations of both-to-blame, each ship should bear a portion of the other ship’s loss, rather than both just bearing their own.(2) Øvergaard p. 259 who gave policy considerations by referring to the Danish scholar Bentzon who gave the following example (not overly realistic): if both were to bear their own loss that would give an incentive for a master to navigate in such a way that maximum damage was inflicted on the other ship and minimum on his own.
However, a difficulty with Øvergaard’s view is that he discussed this in the abstract, not setting out the following dilemma: in general tort law one usually had one claim; the claimant’s claim against the tortfeasor-defendant, and here it would be overly dramatic to apply the Roman law doctrine of no losses being recoverable by a claimant who has contributed to his own loss. Such total forfeiture of a claim had a different impact in both-to-blame collision cases where both ships suffered damage. Here there would be mutual forfeiture of claims, producing a less dramatic outcome than in ordinary tort law – in line with the position advocated by Platou.
Moreover, the way Øvergaard used the term compensatio culpae is somewhat confusing, because he did not refer to the Roman law doctrine of contributary negligence negating negligence as a basis of liability. Rather, he used the term in all cases where the claimant forfeited his claim because of contributory negligence, with no regard to the court’s (or legal authors’) rationale for such a result. In other words, it could well be the case that the claimant’s contribution to its own losses was sufficiently grave to justify such outcome of forfeiture of the entire claim on discretionary policy grounds, rather than taking a detour to the (formalistic) doctrine of Roman law to explain the outcome.
Yet, for our purposes it is helpful to observe that Øvergaard, as well as Platou and Knoph, assumed that there was an intrinsic link between the ship collision rules and the general tort rules on contributary negligence. Moreover, Øvergaard provided helpful observations on situations where the contribution to own losses did not consist in negligence (fault) but in other legal phenomena.(3) Øvergaard p. 268 where the equivalent of strict liability is used ‘the other way around’ as a basis for contributory losses to be borne by the claimant.