State Liability for Failure to Report Shoal - International Law Office

Introduction
Facts
Proceedings
State Liability and Applicable Standard of Duty of Care
Tirranna Precedent
Judgment

Introduction

The Rocknes ran aground and capsized after hitting an unmarked shoal in Vatlestraumen, south of Bergen, on January 19 2004. Five years after the incident the claimants filed a lawsuit against the government claiming compensation for losses incurred. The Norwegian First Instance Court heard the case in February and March 2009. The principal issue was the standard of duty of care that was to be applied with respect to the state's liability.

The judgment was rendered on May 29 2009. The claimants won on the principal issue that the state was liable, but the court reduced the damages to a minimum due to, among other things, contributory negligence.

Facts

On January 19 2004 the bulk carrier Rocknes capsized in Vatlestraumen after running aground on a shoal. The vessel sustained severe damage and capsized within a few minutes of the incident, leading to the deaths of 18 seamen and causing a serious oil spill.

The shoal on which the Rocknes ran aground was found by the Chart Authority under a hydrographic survey in 1995, but the state had failed to report the shoal in the Notices to Mariners, resulting in navigators and pilots being unaware of its existence.

The shipowner and claimants argued that it was negligent to give no notice of the shoal when it was found in 1995 and commenced proceedings against the state for recovery of vessel repair costs and other losses amounting to between Nkr500 million and Nkr600 million.

Under Norwegian law, the threshold for the state's liability with regard to certain public sector services has historically been higher than for other entities. In Rocknes the claimants argued, among other things, that the legal doctrine of a higher threshold for the state's liability is outdated and no longer valid in law. The state argued that the principle remains valid.

Due to the factual complexity of the case and the large number of witnesses involved, it was heard over six weeks.

Proceedings

The claimants' principal argument was that it was negligent not to report the shoal on which the Rocknes ran aground. They further argued that had the shoal been reported, the navigator and the pilot would have been aware of the danger and the incident would have been avoided.

However, the state argued that all applicable routines and international rules had been followed and that the shoal was not reported because:

• it was close to the shore;
• it was located inside the red sector; and
• the charts contained no information indicating that the depth at the place of the grounding should be greater than 10 metres.

Further, the state argued that the navigation of the Rocknes had been negligent and had contributed to the incident.

The principal question was which standard of duty of care should apply in a case involving the liability of the state in the public services sector.

State Liability and Applicable Standard of Duty of Care

The claim for damages was based on Section 2.1 of the Tort Act (25/1969), according to which the state is liable if:

• someone within the public services sector may be blamed for a negligent or wilful act or omission;
• the act or omission infringes upon the claimant's individual rights (as opposed to general public interest); and
• the act or omission has caused (or contributed to) the incident.

This includes 'anonymous failures' (ie, it is not necessary that a particular person within the relevant authority be blamed for one or more specific acts or omissions). It is sufficient to show a breach of the duty to take care, irrespective of the individual who has committed the breach. The state is also liable for cumulative failures, meaning that where individual failures are insufficient to establish negligence, the sum of several failures may be characterized as neglect.

Pursuant to the preparatory works of the act, a moderate standard of duty of care applies to the public services sector, including the chart, pilotage, lighthouse and marking authorities (ie, the Chart Authority and the Coastal Administration). Although older jurisprudence and legal theory agree with this view, recent legal theory states that a higher standard of duty of care must be applied.

Thus, the question was whether the state may be blamed for (individual or organizational) negligent acts or omissions within the Coastal Administration or the Chart Authority which caused or at least contributed to the incident.

Tirranna Precedent

An important precedent that deals specifically with the marine public services sector is the Supreme Court decision in Tirranna.

The Tirranna ran aground in Finnsnesrenna, Norway, on January 31 1966 and was lost. The grounding was caused by the fact that a floating light buoy had not been illuminated because the individual in charge had failed to change the gas container on time. The shipowner claimed damages from the state, but the Supreme Court dismissed the claim. The majority stated that the basis for this conclusion was that the lighthouse authorities had acted in the public interest regarding traffic safety, and that "failures that shall trigger legal liability must appear as a significant deviation from the nautical safety level, which the authority aims at". The Supreme Court held that the state was not liable even though the light buoy went out due to human failure, because the failure did not constitute a "substantial and unexpected deviation" from the nautical safety level which the authorities aim to provide. The decision was not unanimous (four to one), and the dissenting judge concluded that the state was liable because the floating light buoy had gone out due to clear negligence by the respective civil servants.

To date, no subsequent cases have been brought before the Supreme Court requiring it to distinguish Tirranna, but there are precedents in the non-marine public services sectors that clearly show that the courts have differentiated between applicable standards of duty of care, and that the traditional threshold for state liability has moved closer to that applicable in the private sector. Commentators argue that the threshold for state liability should be the same as for other entities.

Judgment

The judgment was rendered on May 29 2009. The state was held liable for negligently omitting to report the shoal on which the Rocknes ran aground. Due to the fact that the court held that there was contributory negligence on the claimants' part, the damages were reduced. Further, the court held that the Rocknes would not have capsized had it been properly loaded and the cargo trimmed, reducing damages further.

For further information please contact Gaute K Gjelsten, Trond Eilertsen or Mari Gjerstrøm at Wikborg Rein by telephone (+47 22 82 75 00), fax (+47 22 82 75 01) or email (ggj@wr.no, tei@wr.no or mgj@wr.no).