3.2 Technical failure and contributory liability – Fyksesund
The first case to look into is the Bergen City Court case, Fyksesund (ND 1955.148): Fyksesund had a defective port-side navigational light when encountering Ketty at nighttime in a narrow strait. Ketty, seeing only Fyksesund’s starboard lantern, believed Fyksesund was coming from a port-side cross angle, and Ketty therefore steered to port to go what it believed would be behind Fyksesund, while Fyksesund in reality came from a direction straight ahead, and they collided. Blame was apportioned 25% on Fyksesund for having created the dangerous situation; the court found those onboard to be negligent in not having checked whether the lantern was lit before entering the narrow strait. 75% blame was apportioned to Ketty for not having slowed down to assess the situation; from the map it would appear unlikely that a ship would come from the direction Ketty believed Fyksesund was coming.
However, if we assume, for the sake of illustration, that the lantern onboard Fyksesund had been prudently checked and that the light bulb thereafter collapsed, leading to the same confusion by Ketty as described, how should that be assessed? There would then be no blame attributable to Fyksesund – and the blame attributable to Ketty would remain the same irrespective of whether Fyksesund’s lantern was unlit, through negligence or otherwise.
Under the collision rules this assumed situation would mean that Fyksesund was not at fault, hence not liable for the damage to Ketty, while Ketty would be imputed the same blame due to maintaining too high a speed – which effectively would mean that Fyksesund would recover its full losses, since as a matter of causation in general tort law Ketty’s degree of blame would be sufficient for the entire losses inflicted on Fyksesund to be recoverable.
But that would indeed be a strange outcome. Starting with the Torts Act, one would probably say that Fyksesund, irrespective of its blame, did confuse Ketty by Fyksesund’s unlit lantern, and that Fyksesund therefore ought to bear a corresponding portion of its own loss – but without Fyksesund necessarily being liable towards Ketty, because of lack of blame on Fyksesund’s part. In other words, the Torts Act opens up “other circumstances” (than negligence) on the claimant’s part, to be likened with negligence as a basis for contributory liability,(1) Now Torts Act s. 5-1 (3) which reads: “The rules in No. 1 […] apply correspondingly in case of contribution by […] other circumstances for which the claimant […] is in this regard responsible.” Admittedly this aims at circumstances which would render the party liable for harm caused to others (typically strict liability for dangerous activity – see Hagstrøm/Stenvik, Erstatningsrett, 2015, p. 468 – but could probably be applied by analogy to situations as here envisaged. and this provision could yield such an outcome as indicated: that Fyksesund bore one third of its own loss, but without being liable for any of Ketty’s losses.
If so, we are back to the solution in Platou’s days to the effect that the ship with the lesser blame had to bear (parts of) its own loss, but without being liable for the other ship’s loss – with the difference being that in our example Fyksesund was not to blame, but had “other circumstances” (unlit lantern) leading to it bearing part of its own loss.(2) The example also illustrates the tendency in some jurisdictions to understand the concept of ‘the ship’s fault’ in the Collision Convention to encompass technical failure (latent defects) as ‘fault’, see for Dutch and Belgian law, Frank Stevens, Inland Collision Law, Festschrift für Resi Hacksteiner, 2023, pp. 316 et seq. In other words, this example shows that the issues brought up by Platou more than 100 years ago are not ‘dead’. It could be asked: would it be allowable under the MC to make this kind of complementation of the maritime rules with the provisions of the Torts Act?