3.3 Ship collision and the law of necessity – Njård II
Another case capable of illustrating the interlink between the ship collision rules and general tort law is the Bergen City Court case, Njård II (ND 1953.213).
The facts were essentially these: A sailing boat (a 16 meters long cutter with no engine, as was common at the time) was on a leisure trip in challenging waters (at Straumane, south of Sognesjøen in Western Norway), consisting of narrow straits subjected to strong tidal currents, and being trafficked by ferries. Amid these straits the wind suddenly died, leaving the sailing boat drifting and with the currents threatening to push it against surrounding rocks and thus damage it. To avoid this from happening, the boat owner dropped anchor, waiting for winds eventually to pick up and thus ‘sail up’ the anchor. But due to this anchoring the boat became exposed to other traffic, and some hours later a ferry passed and hit the boat, penetrating its hull, and the boat sank. No people were injured, and the ferry remained undamaged.
The boat owner claimed damages for the loss of the boat from the ferry company and succeeded in part. The Court found the master of the ferry to have acted negligently: the ferry had kept too low a speed. According to the Court the master should have applied full engine power to enable the ferry to manoeuvre with optimal precision in the strong head current while passing the boat. Hence, liability was imposed on the ferry company. Nonetheless, the Court reduced the amount of damages by one third on the basis that the boat owner had contributed to the loss through an act of necessity. In that respect the Court held that the boat owner could not be blamed for having ended up in a situation which required action to be taken when the wind died, nor for having dropped anchor in that situation – but that the dropping of anchor must be seen as an act of necessity, being as such lawful (justifiable, hence not negligent) but still creating a risk, and that this risk (which later materialized) could be seen as a kind of contributory negligence by analogy.
The practical outcome of the case is probably sound, but the Court’s reasoning on the law of necessity is brief and non-analytic. The Court does not ask, for example: is it at all reconcilable with the rationale of the law of necessity to ‘sacrifice’ one’s own property, by posing it at the risk of becoming damaged?(1) Would it for example make sense to operate with a notional test of a criminal law pendant to destruction of goods in the law of necessity; that one is criminally liable for destroying one’s own property? – or a notional test of a would-be victim of property damage not being entitled to meet the threat of damage with self defence; that one is not entitled to prevent oneself from destroying one’s own good in acts of necessity? Such elaboration may be seen as mockery, but it illustrates central points at a conceptual level. Or: what was here the greater value preserved to sacrifice the smaller? Was the ‘greater’ value that of avoiding the boat being damaged against the rocks, while the ‘smaller’ was that of, perhaps, being run down by other traffic? Or: can one at all ‘sacrifice’ something which may, or may not, happen sometime in the future?
The point is not to answer such questions, but to illustrate how evasively courts may treat this area of law. For example: It seems here that the Court is mixing up the concept of acts of necessity (emergency) per se, with the legal conception, embedded in the Torts Act 1969 s. 1-4 (at the time PCIA 1902 s. 24) of lawful infliction of harm through acts of necessity; there may well be an act of necessity (emergency) which turns out to cause harm, but without it being sacrificial in the law of necessity sense.(2) See the example in the Supreme Court case Kong Sigurd (Rt. 1955.1055).
There is then another important aspect: this was a ship collision case subject to the fault based maritime rules. How was that reconcilable with having one party bear part of its own losses based on the law of necessity? The Court referred in this respect to an earlier case, the Jotun (ND 1910.433), in support of the proposition that the law of necessity could form a basis for liability in ship collision cases, and that by analogy the law of necessity could also work ‘the other way around’, as a basis for contributory liability.(3) Now the Torts Act 1969 s. 5-1, at the time PCIA 1902 s. 25. But there are problematic aspects with this creative exercise.
Are acts of necessity fault, in the meaning of the MC 161? We shall not answer the question here other than by pointing to the fact that acts leading to a duty to compensate under the law of necessity are deemed lawful, while the fault concept in the collision rules in Norwegian law presupposes blameworthiness.(4) This is not necessarily the case under other jurisdictions of the Collision Convention, such as Dutch and Belgian law, where ‘fault of the ship’ is construed to encompass latent defects (technical failure) leading to collision, see Frank Stevens, Inland Collision Law, in Festschrift Resi Hacksteiner, 2020 pp. 313 and 315-316. It is worth observing that this position is not far from Platou’s advocation of a plain objective concept of the fault provision in the then MC, see Platou p. 84.
Another point is this: if the court had not applied the MC but instead the Torts Act s 5-1,(5) That is, the equivalent at the time, PCIA s. 25. the reasoning would have made sense. Here one could say that increased risk of becoming damaged by acts of necessity can be likened to the increased risk of becoming damaged by the claimant’s negligence. The constellation fits squarely within Torts Act s. 5-1 (3) which lets “other circumstances” (such as the law of necessity) count as a basis for contributory liability on the claimant’s part (see also the Fyksesund above).
The case does in that sense illustrate a merger between the MC collision rules and general tort law on contributory liability. The case also illustrates the potential asymmetry that Platou advocated under the previous law: if we assume that the ferry was also damaged, it could well be a solution that the boat owner bore 1/3 of his own losses without necessarily being liable for (a part of) the damage to the ferry – because the requirements for a duty to compensate in the law of necessity were not met, or because the fault concept in the collision rules does not allow for the application of (strict) liability in the law of necessity. In other words, one could take a more discretionary view than what seems to follow from MC 161 if merging the MC rules with those of the Torts Act.