06-04-18

Swedish Maritime Law 2005

1

SWEDISH MARITIME LAW by Hugo Tiberg Professor of Maritime Law at the Stockholm University DEVELOPMENTS 2005 [cite as (2005) SwMarLaw] Abbreviations: AD (Labour Court Reports, Stockholm), JT Juridisk Tidskrift vid Stockholms Universitet (Law Journal at Stockholm University, Stockholm), MC Swedish Maritime Code (1994:1008), ND Nordiske Domme i Sjöfartsanliggender (Scandinavian Judgements in Maritime Cases, Oslo), NJA Nytt Juridiskt Arkiv (Swedish Supreme Court Cases, Stockholm), Prop. Proposition (Government Bill), ParlCom Parliamentary Committee Reports, RfH Rättsfall från Hovrätterna (Cases on Appeal, Stockholm), SOU (Sweden’s Official Investigations), Stockholm, SvJT Svensk Juristtidning (Swedish Law Journal, Stockholm). District Court is abbreviated DC, Appeal Court AC and the Supreme Court of Sweden SC. The terminology follows that of Swedish Law, Juristförlaget Stockholm 1994, and explanatory notes in the Swedish Maritime Code (Sjö och transporträtt no 22, Stockholm 2001). Cases not reported in recognised journals are cited by court name, date and case number, and reported cases are referred to by recognised report name. Law sections are mostly cited by chapter and section thus: MC 20:4. “Fines“ indicates so-called day fines adjusted to a convicted person’s income; “fine“ in the singular indicates a monetary fine.

I. Legislation 1. The Maritime Code (MC 1994:1009) and consequential amendments 1.1. Oil pollution Act (1005:255) amending MC 10:11with heading (to refer to International Oil Pollution funds). Act (2005:705) amending MC 21:10, 12, 13 Formal amendments concerning the manner of appealing against Average Adjustments 2. Vessel safety and environment 2.1. Vessel Safety Act (2003:364) and Ordinance (2003:438) etc. Act (2005:855) amending the Vessel Safety Act, containing provisions on IMO identification number and vessel history, and correspondingly (2005:857) for the Ordinance. 2.2. Act (2004:487) on Maritime Security with Amendment Act (2004:487) Sec. 9a and 10 on measures against Swedish vessels not conforming, 21 on authorisations and 29 on the right of appeal. 2.3. Ordinance (2005:857) amending Ordinance (1998:965) on Competences for Seamen Concerns Maritime Administration’s authorisation to issue certificates and limit their validity. Act (2005:585) amending the Act (1991:453) on Right of Measures against Swedish Vessels On the Government’s authority to permit a foreign State to take measures against a Swedish vessel according to the UN Narcotics Convention and the UN Protocol against Smuggling of Persons. 2.4. Maritime Administration Regulations The Maritime Administration has issued a large number of regulations concerning the detailed fulfilment of safety rules including a large number of provisions affecting the right of private persons to use recreational craft for purposes conferring some economical benefit. These cannot be accounted for in this presentation. 3. Waters and waterways 3.1. Act (2005:576) amending the Act (1983:293) on Establishment, Enlarging and Abolition of Public Waterways and Public Harbours Adding section 1b with duty of providing an environmental consequence investigation. Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

2

3.2. Ordinance on temporary exception from provisions on waterway dues 3.3. Act (2005:254) amending provisions on the duty of giving statements on reception of oil 4. Insurance Insurance Contract Act (2005:104) Act (2005:405) on Insurance Brokerage

II. Judicial Decisions NB. Some cases decided in 2005 were reported last year. Such reports are reiterated here, and the cases should rightly be referred to under (2005) SwMarLaw. Some earlier decisions received this year have also been reported here.

1. Vessels 1.1. Character of vessel On the character of a “waterscooter” (PWC) as a boat, see 6.1. Regulation of sea traffic. 1.2. Registry Svea AC 25 Feb 2003 matter ÖÄ 138-03 overruling Stockholm 13 Dec 2002 matter Ä 1464202, SC 7 July 2005 matter Ö 1073-03 (Windcatcher) By contract 15 January 2001 two brothers C&M sold M/S WINDCATCHER to Octomar AB. After dispute on the meaning and validity of the contract, Octomar proposed another contract, which C&M refused, declaring cancellation of the original contract. Octomar had paid most of the price, apart from a portion deposited on a bank account, and claims that the ship was later moved to a berth at its disposal. According to Octomar, C&M then forcibly took possession, sailed the vessel to the Canary Islands and used it for charter. On 3rd April 2002 the parties made a formal settlement before Gothenburg DC (T 10863-01) under which C&M were to deliver the ship to Octomar, the latter paying the remaining purchase money and certain other debts. On 2 September 2002 the Shipping Register refused inscription of unconditional title for Octomar, but Stockholm DC overruled this and was in turn overruled by AC. According to AC, the documentation did not establish Octomar’s alleged possession of the vessel, nor did the settlement agreement confirm fulfilment of the purchase in a manner compatible with MC 2:23 para. 1 (3) (among other matters, it must state passage of title, ed.’s comment). Inscription refused. – SC: The question now concerns the effect of Octomar’s original application and its possible fulfilment through the settlement. According to the MC preparatory works, inscription of title shall be based on a presumption that the sale is unfulfilled until the agreed delivery time so that inscription of an unconditional purchase shall not be allowed unless the agreement clearly shows that the seller has disposed himself of his right to cancel the sale and retain the ship (citations). The facts of the case shows that the parties have disputed the transfer of the ship for a long time and that payment and delivery promises have been breached on a number of occasions. Against this background it appears unlikely that the sellers intended to relinquish the right of cancelling the sale and keep the vessel unless payment was made at the agreed time. In view of this and other facts of the case, Octomar cannot be considered to have proved their acquisition of the vessel. Appeal dismissed. 1.3. Mortgage loan agreement Kalmar 20 Aug. 2003 matter T 925-03, reopening Kalmar 18 March 2004 matter T 1513-03, Göta AC 20 May 2005 matter T 1111-04 (Fortuna Australis) Fortuna Australia Maritime Ltd, Valetta, Malta (Fortuna), had been charged by Nordbank, Hamburg, to pay capital and interest on a vessel mortgage loan. On 12 June 2003 the DC declared interim arrest on the vessel concerned, then at Oskarshamn. On the same day Fortuna was summoned and subpoenaed to reply within fourteen days on pain of a possible default judgement, but no evidence was shown that this was notified. On 19 June 2003 a new subpoena was issued, whereof the DC received acknowledgement of receipt but no reply. The Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

3

DC then permitted the plaintiff to serve summons, issued afresh on 9 July 2003, whereof the DC received evidence of service dated 21 July 2003. Fortuna has handed in no written defence. Since Fortuna did not replied and the claim was not manifestly unfounded, DC gave a default judgement in accordance with plaintiff’s claim, including amounts claimed, default interest, definitive arrest and costs, all payable out of the vessel. – On reopening, owners had repaid the capital but denied the bank’s claim for default interest (or interest of 5.25% for the bank’s “current interest rate on overdrafts”. DC decided that as full payment according to the default judgement had been the prerequisite for the bank ceding a threatened arrest of the vessel, default interest must be paid according to Swedish legal rules. – AC: Interest on “amount not paid when due” agreed to be as “certified by the bank as the rate representing their loss”. Thus no room for interest according to the Swedish Interest on Debts Act. After owners conceded liability under some counts but denied under others, the Bank adjusted its interest claim. Owners were thereafter free to revoke their previous concession. Subsidiarily bank claimed 5.25% according to affidavit on the Bank’s current interest rate on overdrafts, which Owners oppose. Facts show that the Bank invoked the affidavit also at the DC, indicating this interest rate for delayed payment. Owners have not objected to this rate as such. The Bank is entitled to such interest rate. – Costs of English counsel and for Bank’s own work granted both by DC and AC, though AC set down the latter from USD 15,000 to 10.000. – Non-appealable. 1.4. Sale of vessel 1.4.1. Good faith purchase South Roslag DC 15 Nov. 2002 matter T 3359-00, Svea AC 13 Nov. 2003 matter T 10301-02, SC 7 June 2005 matter T 4824-03 (Mirabelle) Norwegian Peculium A/S bought a vessel which for tax reasons they left at seller’s boatyard without informing the yard of their title, whereby its title was not protected. The vessel was thereafter distrained for seller’s unpaid taxes and bought on executive auction by P Charter. Peculium claims entitlement to redeem the vessel for P’s purchase amount under the Act (1986:796) of good faith purchase of chattels. The DC acknowledged such a right while the AC denied it. – SC. The matter concerns the relation of the Enforcement Code (EnfC) Ch. 14 sections 1 and 2 to general property principles. The protection of acquired property involves both the purchaser’s relation to competing acquisitions (section 1) and his protection against seller’s creditors in distraint or bankruptcy (section 2). Under EnfC 14:1 an executive sale gives the buyer the same right to the object as a voluntary sale, except as otherwise provided in the chapter. Thus a good faith purchase can be made through an executive auction, giving the deprived third party owner the right to redeem the object. The good faith rule also applies between two purchasers of whom one alone has gained possession of the object. This protection of a third party owner against the distrainee’s creditors requires a protected title. Where the third party owner’s title is not protected, section 2 provides that if the distraint has precedence above a purchase of the object, this protection extends to the executive purchaser of the distrained object. Thus in the absence of protection of prior title, the executive buyer assumes the right of the distraining creditors independently of good faith and the conditions required for a good faith purchase. There is thus no right of redemption, and the appeal is dismissed. 1.5. Vessel safety 1.5.1. Pilotage requirement Malmö DC 18 Jan. 2005 matter B 3675-05(Alice af Råå) As master of a dry cargo vessel, Stig S had on two occasions been towing an earlier Russian submarine of over 70 metres length without using a pilot, as required. For this and for departure with a short crew (see under 3. below) he was sentenced to fines. – Non-appealable. 1.5.2. Passenger vessel certificate Stockholm DC 9 Dec. 2005 matter B 3582-2002 (Car Ferry Duncker) Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

4

A car ferry plying regularly a short distance between the mainland and island Tynningö had found a large number of cars with passengers waiting and had admitted more than twelve passengers for a number of trips – in one case although a shipping inspector had adverted the owner/skipper M – although the vessel’s passenger vessel certificate had run out. M claimed the withdrawal was a mistake, which the court denied, and that sanction could be condoned because he had tried to improve a tough situation and that as an islander full sanction would hit him disproportionally. The court, recognizing that there might be reasons for mitigation, sentenced him to moderate fines. – Non-appealable. 1.5.3. Hours of rest Stockholm DC 5 November 2004 matter B 6414-04 For breach of provided duty in sections 9 and 14 of the Act (1998:958) on Hours of Rest for Seamen and the Maritime Administration’s implementing provisions (SJÖFS 2002:7) of having a working schedule on board, Bengt B was sentenced to a monetary fine of SEK 800. – Non-appealable.

2. Vessel Owners etc. 2.1. Shipping partnership Uddevalla DC 22 Dec. 2004 matter T 2129-04, West Sweden AC 13 June 2006 matter Ö 1343-05 Shipping Partnerships Nybygge 89 and M/S White Sea had been debited by an advocate for legal work and had contested a time debit. The court found the amount to be due. On application by some part owners for vacation for mistake of law, the part owners alleged that the Partnership was dissolved. – AC. It is agreed that in 1977 the parties had undertaken to perform shipping with the vessels in such as way as to constitute the two shipping partnerships at that time. Through its 2004 judgement the DC has obliged the Partnerships to pay certain compensation to the advocate. According to MC 5:3 the managing owner is entitled to represent all the part owners in the partnership’s normal business transactions and to sue and be sued on their behalf. This cannot be considered to exclude individual owners from suing on their own behalf (NJA 1984 p. 917), and the partners are therefore entitled to raise the present complaint. As to whether the Partnerships are dissolved, MC 5:15 provides that a shipping partnership shall be dissolved sex months after request to that effect by one partner to the others, sometimes immediately, and also on decision by a partner owning more than one half of the vessel. It has not been alleged that any of these dissolution situations apply. MC 5:1 3rd paragraph shows that the provisions in sections 2–18 apply unless otherwise agreed. Such other agreement has not been shown. When the matter was raised at the DC the two Partnerships therefore existed and were competent as defendants (cf. NJA 1992 p. 110). The appeal must therefore be rejected. – Appeal pending.

3. Personnel 3.1. Competence, manning requirements Malmö DC 18 Jan. 2005 matter B 3675-05(Alice af Råå) Stig S was master of a vessel for which under the Vessel Safety Act’s minimum crew provisions there was stipulated a minimum crew of four. On a stop at Kalmar his son, who was ordinary seaman on board, fell ill and must stay ashore. S found it impossible to search for a replacement and according to the Vessel Safety Act 5:10 made a so-called master decision to leave with one man short, the weather forecast being good and the intended destination of Helsingborg being within reasonable distance. DC. For a “master decision” to leave with a short crew it must be impossible to supplement the deficient crew. S had not even tried and is thus in breach of the provision. On the same voyage, as well as a later and shorter voyage, S had been towing an earlier Russian submarine of over 70 metres length without using a pilot, as required. For both offences S was sentenced to considerable fines. – Non-appealable. Malmö DC 11 March 2005 matter B 9589-04 (Anette) Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

5

Arne A had been conducting a fishing vessel in lack of the requisite competence, Ship Officer Class VIII. He had also failed to show the requisite certificate of health of himself and his one crewman. The DC remarked the above facts as stipulated and that the question for the court was A’s intent. A admitted negligence in failing to note the expiry of his previous competence certificate. The Court’s lay majority did not find intent but sentenced A to moderate fines for negligent omission of the Vessel Safety Act. The chairman would sentence A for gross negligence, involving duty to pay contribution to the crime victim fund. – Non-appealable. Maritime Inspection decision 3 Nov. 2004 matter 2004-3931, Administrative Court of Östergötland 25 October 2005 matter 4330-04 E (Daisy) Owners of vessels used for fishing charter had applied for extension of their Master VI competency needed for conducting their boats to the fishing fields. The Inspection refused prolongation, stating that under the Maritime Administration’s provisions prolongation required practice on board vessels of a burthen over 20, and that no prolongation could be granted. – The owners appealed, but upon the Maritime Administration relaxing their competence requirements for the relevant vessels to Master VII, a lower competence for which extension could be granted, the owners withdrew their appeal.

4. Employment of vessels 4.1. Carriage of goods 4.1.1. Freight payment Gothenburg 17 June 2004 matters T 11701-03 and T 11969-03, West Sweden AC 4 March 2005 matter T 3355-04 Nordic Trading Co (NTC) orally ordered from Inchape Shipping carriage of one container from Tilbury to Karachi, then from CMA Scandinavia another transport from Antwerp to Jebel Ali in Dubai, all parties having their seats in Sweden. NTC delayed payment under various pretexts, finally stating that they had agreed to being billed in dollars and that with the invoices in SEK they risked being billed twice for the same debt. – DC, remarking that NTC had not shown any agreement to pay in any particular currency and that moreover the bills all stated a rate of exchange if NTC wished to pay in dollars, declared NTC bound to pay the SEK amounts as debited. – AC affirmed. – Non-appealable. 4.2. Ferry transport Malmö DC 10 May 2005 matter T 6804-01 On its way to Croatia a bus with full load of passengers was boarding a car ferry in Trelleborg, when suddenly the car ramp was activated, pressing the 12-ton bus against the deck above. The bus company and ferry owners were agreed that compensation must be paid, and the amount was settled by written agreement, which was confirmed by the DC. – Non-appealable. 4.3. Chartering 4.3.1. Loading damage Gothenburg 12 January 2004 matter T 19715-98 and T 7197-00, West Sweden AC 4 March 2005 matter T 1395-04 (Clipper Cheyenne) BMH produces heavy bulk dischargers for cargo ships. They sold two such dischargers on CIF conditions to US buyers. They made a Liner Booking Note with van Ommeren Shipping Agency for loading and shipment on a vessel bareboat chartered to French Phenix, to whom Ommeren had entrusted performance. Lifting the dischargers under Phenix’s directions failed twice, causing damage to the goods and ship and delay under the sale contract. BMH jointly with its insurer sued Phenix as performing carrier. Gothenburg 13 June 2001 matter T 197198 (reported in (2000) SwMarLaw) had accepted jurisdiction to entertain the claim. – AC, affirming DC, found that the lifting arrangement had probably been unstable, that there was no proof of the mishap being due to movements of the bulkloader’s parts during the lifting, and that the carriers had not been able to show that neither fault or neglect on their part had

Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

6

contributed to the accident. The carriers were ordered to compensate the damage. – Non-appealable.

5. Navigable waters 5.1. Harbours Karlstad DC 18 March 2004 matter T 277-0, W Sweden AC 28 Feb. 2005 matter T 2260-04. M/S Björg was registered as a passenger motorship with Carina C as owner till the end of 2002. In the winter of 2000–2001 the vessel was moored at the wharf of former Karlstad Shipyard, where she sank in early May 2001. After admonitions by the municipality to remove the vessel, Carina C’s ex-husband Lennart finally raised her in April 2002. In June 2002 the municipality moved the vessel according to the Act (1986:371) on Removal of Vessels in Public Ports, whereupon she sank again in October 2002. The municipality then raised the vessel, for which it debited Carina C the amount spent for the raising plus moving costs from the summer 2002. Since the turn of the year 2003/03 Lennart C is registered owner of the vessel, which sank again in March 2003. The municipality sued Carina C for 161,917 crowns for salvage expenditure and 20,716 for removal costs. – DC, upon Carina C’s objections. (1) The person responsible for removal costs under the above Act is the registered owner, even if the real owner was Lennart C. (2) Concerning the salvage cost, there is no provision making the registered owner liable, and the real owner being shown to be Lennart C, Carina C is not liable. (3) Regarding moving costs, Carina C has alleged that although Karlstad harbour is a public port, the vessel lay in private area where the municipality does not have a right of disposition, as is supported by the Act’s preparatory works. The municipality has not shown its right of disposition to the area and has therefore not shown its right to move the vessel. The claim is dismissed, with (modified) costs. – Appeal withdrawn after settlement. Non-appealable. 5.2. Water pollution 5.2.1. Water Pollution Charge Luleå DC 30 March 2004 matter B 502-03 (Axel P) A ship belonging to Kulturrederiet Piteå AB (Piteå Cultural Shipping Co.) sank in the harbour of Piteå, leaking diesel oil into the harbour. After the ship had been pumped out, a flange was found to be broken and the bottom valve was open. The coastguards imposed a water pollution charge, and owners appealed to the Court. – DC. According to the Act (1980:424) on Measures against Oil Pollution, a water pollution charge shall be imposed for any not inconsiderable oil discharge into the water and for an oilspill from a vessel that has not been mitigated as far as possible. The charge is imposed on the physical or legal person who was owner or operator unless the owner shows he had no control over the vessel. According to the applicable table the charge for the 50 litres of oil that escaped is one basic amount being at the time 37,000 SEK. The Court found the discharge was not due to an accident but to lack of maintenance of the vessel and refused to set down the charge. – Non-appealable. Stockholm DC 3 June 2005 matter B 8726-03 North of Korsholmen in Stockholm archipelago an oilspill of 500 metres x 1000 metres was discovered, and M/V MO, a disused timber tower, was anchored at the spot. Vessel owner Bengt A said he had tried to sell the vessel and pumped out the bilge to enable the engine to be started while checking that all pumped-out water was clean. On the following day an assistant had also pumped out water that may have included some oil. – Coastguard debited a 75.800 crowns charge for an estimated discharge of 148 litres of oil. – DC. Though in principle personal fault is immaterial, the amount may be set down if unconscionable. There is however no ground for such mitigation in this case. Affirmed. – Non-appealable. Kalmar 27 Nov. 2003 matter B 578-03, Göta AC 17 Febr. 2005 matter B 3207-03 (Coral Isis) While proceeding in the Baltic Sea, the vessel’s crew pumped oil from one tank into another. Mistakenly, pumping was not stopped when the reception tank was full, and some oil ran out Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

7

on deck but was later removed into a tank, although the master assumed some 50 litres might have escaped into the sea, which he reported to coastguards, No oil was however localised behind the vessel. A water pollution charge was imposed, and owners appealed to the DC. – DC found the suggested discharge of 100 litres was a mere guess, and the quantity, if any, was in– significant. Moreover, the officers had loyally reported the matter to coastguards who had all possibilities of verifying an oilspill. Imposing a charge under such conditions invites omission of notification. The charge was cancelled according to WPA 8:4. – The AC, stressing that no one on board had seen any oil in the water, affirmed. – Non-appealable.

6. Maritime Traffic 6.1. Regulation of Sea Traffic 6.1.1. Prohibition of PWC (waterscooter) traffic NB. Under the Waterscooter Ordinance (1993:1053 as amended 2004:607, “the Ordinance”) the use of waterscooters is forbidden except in public waterways (i.e. some 300 channels in the country mainly intended for heavy commercial traffic) and such areas as the County Administrations shall nominate under section 3, which nominations “shall always” be made in respect of three designated types of areas including “such as are already so affected by human activity that additional noise and other disturbance by waterscooters will not be significant”. Sundsvall 1 Nov. 2004 matter B 2584-03 Fredrik A had been stopped in August 2003 conducting a ”jet-ski” (submersible waterscooter) in a public water area outside Sundsvall that was not designated for use for such craft. He was aware that there was no area in the vicinity designated for waterscooters but considered the nearest such area to be unreasonably far away and that his waterscooter did not cause any disturbance. – DC. Both at present and at the time of driving Fredrik A’s craft was a waterscooter according to the Ordinance. At the period the use of a waterscooter at the place in question was prohibited under the Ordinance. However, the Ordinance has been amended with effect from the 15th July 2004 to permit waterscooter use in public waterways and certain other areas. The County Administration has not, as possible according to section 3 of the Act, restricted the use of waterscooters in public waterways. Although Fredrik A’s craft was a waterscooter that at the time might not be conducted in a public waterway, the accused may not, under to the principle of legality as expressed in section 5 of the promulgation Act to the Penal Code, be convicted for an action that was not criminalised at the time of judgement. An exception for temporary criminalisation due to special conditions is not applicable. Acquitted. – Non-appealable. Nacka DC 13 Jan. 2005 matter B 2001-04, Svea AC 26 September 2005 matter B 1153-05 Christian K had been conducting a PWC (floating waterscooter) in a part of the Värmdö municipality which was not a public waterway. – The DC observed that since the competent County Administration had not yet passed on the nomination of permissible areas, the Ordinance prohibited waterscooter driving outside the public waterways, which amounted to an “almost general prohibition of waterscooter driving and a trade hindrance violating EC law” and that the indictment must be dismissed. – The AC found that under the legality principle, driving in an area for which the County Administration had not yet passed on the nomination of permissible areas could not be pronounced as illegal. Appeal disallowed. –Non-appealable. Kalmar DC 6 April 2005 matter B 740-05 Åsa K had been using a hired PWC in an island area outside Västervik, where the County Administration had not yet issued any permissive area nominations. She was acquitted on the ground that the Ordinance violates the EC law, similarly to Nacka DC in matter 2001-04 above. – Non-appealable. Luleå DC reference to EC Court 3 March 2005 in matters B 1874, 1895-04 Percy M and Joachim R were indicted for conducting PWCs in central Luleå city although the County Administration had not passed any permissive nominations. They alleged that (1) the Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

8

area was such as under section 3 of the Ordinance must “always” be designated as permissible and that they were therefore not in breach of the Ordinance, and that the Ordinance was invalid (2) for violation of the freedom of trade under the EC Treaty art. 28, (3) violation of the EC Recreational Craft Directive (RDC), and (4) for improper notification. The Court referred the matter to the EC Court for preliminary ruling on questions (2) and (3), where the case is pending as C-142/05. NB. Three similar cases, B 1495-05, 1498-05, and B 1879, are pending before the Court, the prosecutor having demanded a stay pending the EC Court’s decision of the cases before it. Handen DC reference to EC Court 21Nov. 2005 in matter B 2047-05 Lars S had been using a PWC in a Stockholm suburban area after the County Administration had passed on the matter of permissibility without giving permissive provisions for the area in question. He alleged that (1) the area was such where nomination should have been given according to the Ordinance section 3 and where waterscooter driving was therefore permissible, (2) the Ordinance is invalid for violation of the RCD and (3) the EC Treaty art. 28, and also (4) for improper notification. The case differs from the Luleå cases above in that the driving occurred after the coming into force of the RCD, that the craft used was shown to be EC approved and CE-marked and that the County Administration had passed on the matter of permissibility but rejected the place. The Court referred questions (2), (3) and (4) to the EC Court for preliminary ruling (case C-433/05), where the case is expected to be consolidated with the Luleå cases above. Varberg DC 28 Dec. 2005 matters 1903, 2133-05 Henrik O and Fredrik R were indicted for driving waterscooters in a part of Halland County, where the County Administration had passed on the matter of permissibility but refused to grant any additional permissions for the municipality in question. The DC acquitted the defendants with reference to the legality principle, referring to Svea AC’s decision in B 1153-05 above. – Appealed by the prosecutor, who has demanded a stay pending the EC Court’s decision of other casesHalland Administrative Court 1 July 20054 matter 1256-05 Lars R had appealed to the Court against the Halland County Administration’s nomination of waterscooter areas under the Ordinance section 3. The Court dismissed the complaint on the ground that appeal lay directly to the Government. Lars R appealed. Pending. Blekinge Administrative Court 19 Sept. 2005 matter 740-05, Jönköping Court of Administrative Appeals 12 Sept. 2005 matter 2913-05 Gustav S had demanded inhibition of the Blekinge County Administration’s nomination of waterscooter areas under the Ordinance section 3. The Court dismissed the demand on the ground that any appeal lay directly to the Government. – Affirmed on appeal. Non-appealable. 6.1.2. Traffic separation Gothenburg 29 March 2005 matter B 12195-04 (Bergön) Lars W had been conducting a 3,700 ton cargo vessel in the traffic separation zone off Hangö in the Finnish Gulf in an easterly direction in the lane intended for westbound traffic for a not inconsiderable distance. The DC, finding the breach to be conscious, sentenced Lara W to moderate fines. – Non-appealable. 6.2. Navigational errors 6.2.1. Grounding and collision Nacka DC 15 Feb. 2005 matter B 2390-04 Håkan A was master of passenger/sail/motorship Najaden, 34 x 7 metres cruising vessel. At Farfarsgrund Lars T was diving with his 300-boat EA II, a military boat with 2 engines and aqua drive, anchored at the spot. Najaden hit this vessel. Before anchoring, Lars A had been informed that no heavy traffic was announced, and he put up diving flag A. Seeing Najaden Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

9

under sail from Sandhamn he noted her heading straight for him and signalled with his horn, then shouted. Divers swam away from the pending collision. Håkan A had first seen the boat but assumed it to be proceeding in his own direction; he never saw the diving flag, nor did he see any divers. The boat must have been in a dead angle from the wheelhouse and was hard to see on the radar. – DC found it clear that EA II had the diving flag up, that visibility was good and that Håkan A was not keeping a proper lookout. It was mere luck that no one was hurt. – Sentence: Average fines. Damages for the physical damage but no loss of business was held to be shown. – Appealed by both parties. Nacka DC 23 June 2005 matter B 910-05 Per F came from a jazz concert on Möja in his outboard dory without lights to his home, some distance along the shore, having 0.29 mg/l. Colliding lightly with Karl S’ larger motorboat, Karl S overtook Per F to discuss the matter and then called the police. DC. The parties have different accounts, though clear that the collision occurred in the fairway. Not proved that Per F exceeded admitted 7 knots. Since there is no lower limit for marine intoxication and no signs indicated such intoxication, Per F is acquitted of that. As he was conducting his boat slowly along the shore – though colliding in the fairway - his negligence was slight. Acquitted. – Non-appealable. Gothenburg DC 27 Jan. 2005 matter B 11404-04 (diving accident), West Sweden AC 26 Jan. 2005 matter B 1558-05 As a rehabilitation measure, drug addicts were engaged in sport diving under direction of Rickard A (A), who was a qualified skipper, vessel engineer and diver. He was also skipper of the diving boat, and 11-metre inboarder. For a diving practice at Skallen lighthouse outside Marstrand on the Swedish West Coast, the divers had been instructed to follow the bottom and not go deeper than 18 metres. There were tree groups, and all were instructed to keep together within the groups. When all divers were in the water, A drove the boat out upon deep water, where the divers were instructed not to go. The divers were to come up near the shore, whereupon they would swim over to the boat. When the first group came up, A drove the boat a little closer to them, turning round to make it easier for them to climb up. He then noticed that the propeller hit something and put the engine in neutral. It turned out that diver CS from another group had come up and been hit by the propeller. A and his assistant K tried to get CS on board but failed, and CS slipped from their grip and sank to the bottom. The cause of the accident, according to A, was that CS had come outside the instructed diving area and had failed to make a sufficient safety stop on ascending to the surface and also had dived without the required weight belt, which made his ascent uncontrolled. The DC, noting that there was no Swedish precedent on the situation and that available general instructions did not particularly envisage divers’ safety in relation to the diving boat, discussed the general liability for causation of another’s death in the Penal Code (PC) 3:7. “Causation” in the provision presupposes negligence, but the requirement must not be pressed unduly. In NJA 1993 p. 163 the SC said there had not been shown “such culpable negligence as justifies penal liability” and in NJA 2004 p. 34 the Court said that “a misjudgement-based omission to take the necessary measures to avoid the casualty does not appear to be negligence of such culpable degree as is required for any of the crimes intended in PC 3:7–9”. It appears that the notion of negligence in penal law should be reserved for quite culpable negligence. The place of accident is not clarified, and impressions vary from 15 metres to 50–70 metres from the shore. In the absence of clear proof A’s statement that the collision occurred outside the diving range must be accepted. Clearly his safety distance had not been sufficient to avoid an accident, but this does not itself make it sufficiently culpable for penal liability. Divers soon get tired when they have surfaced, and the safety distance must not be such that the divers cannot reach the boat. A had not broken any known safety regulation, the divers had been well instructed and had been told to stay in groups etc. All such measures were calculated to improve safety and prevent divers Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

10

from coming up near the boat. Altogether, the DC did not find A to have shown culpable misjudgement. Acquitted, together with a claim for damages, which was taken to be conditioned upon a convicting sentence. – Affirmed on appeal. Non-appealable. Nacka DC 24 March 2004 matter B 1720-03, Svea AC 21 April 2005 matter B 3397-04, SC 23 Aug. 2005 matter B 2074-05 Hampus F let his girlfriend Sophia W drive his runabout motorboat from a golf & country club in the archipelago. Two friends came in a RIB-boat some distance behind to starboard. Gustav H running at about 50 knots overtook the RIB on its port side and prepared to overtake F and W on their starboard side, when suddenly Sophia W upon a sign by Hampus F turned starboard across H’s way. Their boat was run over, Sophia W being killed and Hampus F injured. Sophia W was shown to have had blood alcohol content of over 2°/oo, Hampus F had 1.4 °/oo , and H had 0.16 °/oo . H was indicted for negligence in sea traffic and manslaughter, and Sophia Ws parents claimed damages. – DC. H has caused the accident by overtaking at too high speed and must be sentenced for negligence in sea traffic and manslaughter. His blood alcohol content has been too insignificant to affect his ability to drive his boat, and his negligence was not gross. He was given a conditional sentence with 100 hours’ community service. As Sophia W was considerably intoxicated and turned starboard without checking what was behind her, she was held 2/3 at fault, and damages were set down to 1/3. – AC. The collision occurred in a narrow channel just before a 7-knot limitation, both boats being conducted on the “wrong” side of the channel. Sofia W’s starboard veer, though sudden, is such as might have had a valid reason such as meeting traffic, buoys or other objects in the water. An overtaking vessel must be prepared for such manoeuvres and under COLREG rules 13a and d it must cautiously observe the vessel ahead until well past it. Clearly H’s extreme speed for the place, hard to foresee also for the overtaken boat, disabled him from taking any suitable and effective avoidance measure. Even though W may have contributed to the accident, H’s high speed has contributed to such extent that he must be sentenced for negligent navigation and causation of another’s death to a conditional sentence plus high fines. He must also pay damages to W’s parents under 5:2 first paragraph (3) of the Tort Liability Act. Under the Act’s 6:1 first paragraph the AC did not find cause for identification between the mother and Sophia W and rejected any adjustment of damages both on this ground and under MC 8:1. Nacka DC 19 April 2005 matter B 2597-04 Ulf R was accelerating his boat in Tranarö channel at about 8-10 knots watching only his instruments. He ran from starboard into a small open 5-knot double-ender with a family of five on board, causing injuries and shock and having to jump into the water. Sentenced for negligence in sea traffic to normal fines. Damages for pain and bruises amounted to 15,000 altogether. – Non-appealable. Nacka DC 23 June 2005 matter B 910-05 Per F came from a jazz concert on Möja in his outboard dory without lights to his home, some distance along the shore, having 0.29 mg/l. Colliding lightly with Karl S’ larger motorboat, Karl S overtook Per F to discuss the matter and then called the police. Before the DC, the parties had different accounts, though clearly the collision occurred in the fairway. Not proved that Per F exceeded admitted 7 knots. Since there is no lower limit for marine intoxication and no signs indicated such intoxication, Per F was acquitted of that. As he was conducting his boat slowly along the shore – though colliding in the fairway - his negligence was slight. Acquitted. – Non-appealable. Solna DC 7 Sept. 2005 matter B 1099-05, Svea AC 11 Nov. 2005 matter B 7315-06 See below under 6.2.3. Other negligence in sea traffic.

Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

11

SC 16 Dec. 2004 matter B 264-04 affirming Svea AC 12 Dec. 2003 matter B 9881-02, affirming Stockholm DC XII 16 Oct. 2002 matter B 5027-00; further proceedings SC 20 October 2005 in matter Ö 83-05, see 11.1. Procedural error, below. In morning dusk, L in his runabout with three passengers had been entering Stockholm harbour from the east while V with one passenger in his heavy Croupier had been exiting. Just outside the speed limited area, V had turned to port across L’s way, which had caused L to run into the crossing boat, two of L’s passengers being killed and another passenger and L himself getting injured. The AC majority, noting that both had high speed, V was on the wrong side of the narrow channel or crossing the channel, while L had a blood alcohol concentration of 0.82 °/oo and failed to note V until the last seconds, found both liable for negligence at sea, manslaughter, causation of bodily harm and marine intoxication and jointly and severally liable for damages to the death estates. The court’s marine expert dissented. V’s port light had been extinguished, and his white light might easily be mistaken for a land light or could have seemed to move in a direction not indicating collision risk, while L had been on his proper side of the channel and had not been charged with failure of anything other than cutting down speed, which he tried to do. V alone was therefore liable for negligence at sea, causation of death and damages therefor, while both were liable for marine intoxication. – SC majority (3-2). It was possible to see 100-150 metres without lights. V came head-on and turned to port only when collision was inevitable, so the sudden turn could not surprise L, who drove too fast to be able to stop his boat or turn to avoid the collision. L therefore broke against COLREG rule 5 of lookout in relation to his speed. AC’s judgement is affirmed. SC minority: V was crossing L’s course on L’s proper side of the channel, and the turn may have been so sudden that L cannot be blamed for failure to avoid the collision. Acquitted for negligence in sea traffic, manslaughter and causing bodily harm. – L applied for reopening for procedural errors in SC, see under 11. Courts and Pocedure below. Karlstad DC 14 Dec. 2004 matter B 1840-04, West Sweden AC 25 May 2005 matter 1367-05, SC 28 Sept. 2005 matter 2524-05 Motorboat R conducted through a canal in the city of Karlstad at much above permitted speed ran over motorboat W, lying without lights in the canal to fill up petrol, seriously injuring Linus B on boat W. Henrik G, the owner of boat R, came from a party and was found to have an exhalation air alcohol concentration corresponding to 1.66°/oo blood alcohol but alleged that the boat had been driven by an unknown man from Å, who disappeared at the accident, while Fredrik J on boat W confessed to having had an alcohol concentration corresponding to 1°/oo blood alcohol. Henrik G’s statements being corroborated by his friend J, the DC found they could not be disregarded and discharged Henry G of both criminal liability in respect of marine intoxication and causation of injury and civil liability to Linus B, while Fredrik J was sentenced to conditional sentence and 50 hours community service for gross marine intoxication. AC. As witnesses had not seen any person leaving boat R, the AC rejected the explanation of “another person” and sentenced G for marine intoxication and gross causation of bodily harm and both drivers to damages for the injury inflicted on Linus B. – On Henrik G’s application, the SC denied leave to appeal. Comment: It should be observed that as owner of boat R Henrik G is responsible for the injury caused to Linus G irrespective of whether he personally drove the boat. However, this would have required an allegation to that extent by Linus B and will not be included in the claims pursued by the prosecutor. 6.2.2. Speeding Nacka DC 24 March 2004 matter B 1720-03, Sea AC 21 April 2005 matter B 3397-04, SC 23 Aug. 2005 matter B 2074-05 Overtaking at close quarters at 50 knots, see under 6.1.1. Grounding and collision

Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

12

Nacka DC 2 Sept. 2003 matter B 5-03, Svea AC 9 Dec. 2003 matter B 2433-02, and Nacka 16 Sept. 2003 matter B 2433-02, see below under 6.2.3. Gross marine intoxication Stockholm DC 13 Oct. 2004 matter B 2734-04, Svea AC 9 Dec. 2004 matter B 8760-04, SC 2 March 2005 matter Ö 456-05, below under 6.2.3. Gross marine intoxication 6.2.3. Other negligence in sea traffic NB: While breach of speed limits and the Maritime Traffic Ordinance are punishable by monetary fine (“fine”), speeding amounting to dangerous negligence under MC 20:2 is punishable by day fines (“fines”). Nacka DC 27 Aug. 2003 matter B 1048-03, Nacka 2 Sept. 2003 matter B 5-03, Nacka 16 Sept. 2003 matter B 2433-02 and Nacka 27 Aug. 2003 matter B 1048-03 See under 6.3.3. Gross marine intoxication Solna DC 7 Sept. 2005 matter B 1099-05, Svea AC 11 Nov. 2005 matter B 7315-05, SC 12 Jan. 2006 matter Ö 44782-05 Lars-Olof B had been motoring along the shore with his 3.5 ton sailboat and had left the helm to fetch some tools in the cabin. In the meantime the boat had veered towards a tank station and, before B could stop it, had touched a waiting motorboat and run into the station’s wooden platform. When called upon by the station manager, he waved his hand and left. B was sentenced to considerable fines for negligence in sea traffic and absconding from the scene of the accident. He was also charged to pay compensation for the damages to the motorboat. – No leave to appeal in AC and SC. 6.3. Marine intoxication NB. Ordinary marine intoxication according to MC 20:4, not causing tangible danger of concrete damage, is normally punished by fines. Gross marine intoxication, rendering in principle an obligatory prison sentence, is presumed at a measured blood alcohol content of 1 per thousand (1 °/oo, one promille), corresponding to 1/2 milligram measured per litre exhalation air (0.5 mg/l). 6.3.1. Acquittals Malmö DC 18 March 2004 matter B 3458-03 matter B 3458-03(Ankobia) Bo S was indicted for gross marine intoxication, having left Helsingborg in his ship-size motor yacht (more than 12 metres length and more than 4 metres breadth) which he was the only person on board formally qualified to conduct, and having left over command of the vessel to his formally unqualified friend Ove B, whereupon coastguards found the vessel to be clumsily conducted and checked Bo S for a blood alcohol concentration found to be 1.62 °/oo. In court Bo S stated having known Ove B to be thoroughly experienced and expected him to have the formal qualification to conduct the boat, and the court accepted Ove B’s testimony of having those qualifications. Accepting Ove B’s testimony, the DC concluded that having duly delivered command to Ove B, Bo S was acquitted. – Non-appealable. Comment. In ND 1991 p. 54, the SC accepted a boat owner’s handing over command of his boat – for which no formal qualification was prescribed – after instructing the other how to handle it. It seems dubious of the court to allow a ship owner’s mere belief in the other’s qualification to relieve the owner from his responsibility as master. Nacka DC 3 March 05 matter B 2533-05 Magnus W had been drinking at a well-known golf & country club in the archipelago, professed to have been driven off afterwards by unknown “Bosse” in a rubber boat, whereupon Bosse had gone ashore and come back and they had continued to Korsholmen where coastguards saw Magnus in the boat and required him to take an alco–test. The coastguards said that after receiving a report of a rubber boat driven fast along the shore they had found a man ashore. A boat without lights had arrived. They had followed the boat to Skogsö at a speed of 25-30 knots. The boat went in at Korsholmen pier where they found a large sailing boat. By the sailing boat they saw a rubber boat with Magnus W crouching inside it. He was drunk and Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

13

claimed that the boat’s driver Bosse had run ashore. Magnus’ story was incoherent, and the DC did not believe it, among other things since Magnus had tried to hide behind the sailboat. Magnus was sentenced to average fines for marine intoxication. – Non-appealable. Nacka DC 17 May 2005 matter B 509-04 Peter T and Irina S were in a boat, and T called coastguards after boat had dragged its anchor after engine breakdown. When coastguards arrived, T had 1.81°/oo blood alcohol, but he claims to have drunk after anchoring. The DC did not find it proved that he could not fulfil his duties satisfactorily after the anchor had begun to drag. Acquitted. – Non-appealable. Nacka DC 18 June 2003 matter B 602-03, Svea AC 4 Jan. 2005 matter B 5709-03, SC 8 April 2005 matter B 569-05 Robert K’s allegation of “after drinking” to explain his 1.12 °/oo blood alcohol was accepted by the DC but partly rejected by the AC, see under Ordinary marine intoxication below. – SC denied leave to appeal. 6.3.2. Ordinary marine intoxication Nacka DC 22 Feb 2005 matter B 2519-04 Conny J had been in the archipelago and was taking his boat to Hammarby Sjöstad in Stockholm. They had closed their top cover so did not see the police following them at Danvikstull. Police: Conny J drove at over 25 knots. At Hammarby lock he stopped suddenly. He was found to have 0.24 mg/ litre. Moderate fines for marine intoxication. – Non-appealable. Nacka DC 6 June 2005 matter B 85-05 Per-Olof S drove a short distance along Möja Island at 25-20 knots in darkness without lights, having 0.49 mg/litre. Sentenced to considerable fines for ordinary marine intoxication. – Appealed. Nacka DC 18 June 2003 matter B 602-03, Svea AC 4 Jan. 2005 matter B 5709-03, SC 8 April 2005 matter B 569-05 Having left a well-known golf & country club late in the morning Robert K was caught in a police control where he had been found to steer unsteadily. Coming on board, the police officer noted that Robert K was drunk and could not speak clearly and walk steadily. While the policeman took the boat ashore, K and his friend entered the cabin, where K claims to have drunk gin from a bottle. K was found to have 0.66 mg/litre exhalation air (1.12 °/oo blood alcohol). He was indicted for ordinary marine intoxication. The court held that K’s allegation of having drunk alcohol after his driving had not been disproved and must be accepted. K’s manner of conducting the boat did not sufficiently show inability to perform his functions safely. Charge dismissed. – AC. There was no reason to doubt the police officer’s testimony of K’s signs of intoxication on being apprehended, and as according to K the boat was difficult to steer at low speed and was steered through a very narrow channel, K’s conducting the boat under such influence was unsafe. On the other hand K’s allegation of “after drinking” deserves credence to the extent that he may have had under 1°/oo when driving the boat, so the conviction is to fines for ordinary marine intoxication. Two judges dissented, affirming the DC acquittal. – SC denied leave to appeal. Stockholm DC 13 Oct. 2004 matter B 2734-04, Svea AC 9 Dec. 2004 matter B 8760-04, SC 2 March 2005 matter Ö 456-05 Mikael L conducted a RIB-boat from Vaxholm into Stockholm harbour and was clocked by coastguards in the harbour at 40 knots where the speed limit is 7 knots. On the quay he was tested to have an exhalation alcohol content of 0.47 mg/litre air (0.94 °/oo blood alcohol). He said his companion had been conducting the boat, but the coastguards testified having particularly observed that the driver never changed his place in the boat. Sentenced to high fines for marine intoxication and speeding. – Appeal denied by AC and SC. Nacka DC 24 March 2004 matter B 1720-03, Svea AC 21 April 2005, SC Effect on liability for contributory fault, see 6.1.1. Grounding and collision. Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

14

Nacka DC 1 Dec 05 matter B 2066-05 Ola P started his small 5 metre motorboat from Biskobsudden restaurant without any other light than a kerosene lamp. Tested, his exhalation alcohol concentration was 0.94 mg/litre. He was indicted for gross marine intoxication, and the DC said that his failure to have proper lights might be due to his intoxication. Nevertheless sentenced for ordinary marine intoxication to considerable fines. – Non-appealable. 6.3.3. Gross marine intoxication (presumed at above 1 °/00 blood alcohol) Eskilstuna DC 18 Oct. 2004 matter B 1798-04, Svea AC 19 Jan. 2006 matter B 8922-04, SC 9 March 2006 matter Ö 686-06 Matti Jakobsson had been driving his motorboat in Torshälla canal, overtaking on the wrong side and hitting a sailboat and a mooring pole. He alleged that he had to bring his dog to the vet, though the dog recuperated on the way there. He had 0.78 mg/litre exhalation alcohol. Sentenced to one month’s prison. – Affirmed by default in AC and no leave to the SC. Falun DC 28 Jan. 2004 matter B 2661-03, Svea AC 4 Jan. 2005 matter B 1647-04, SC 22 March 2005 matter B 553-05 Leif K had been driving his 22-foot motorboat into a marina in the lake of Runn at a speed that raised wake in the marina and caused a woman to fall out of her berth. K was shown to have had a blood alcohol concentration of 2.16 °/oo but stated that this must be from wine and spirits which he drank afterwards. In view of other testimony and the high alcohol blood value the DC wholly rejected the assertion of “after-drinking”. As there was no proof of other boat traffic, K was given a conditional sentence plus 50 hours’ community service. – Affirmed by AC adopting DC’s grounds (correcting a date), leave to SC denied. Stenungsund DC 8 June 2005 matter B 9-04, AC West Sweden 2 June 2005 matter B 5090-04, SC 15 Sept. 2005 matter B 2731-05 Claes H had been indicted for gross marine intoxication, having driven his boat in Marstrand harbour with an exhalation air alcohol concentration of 1.17 mg/litre air (2.34 °/oo blood alcohol). He denied having driven, which was confirmed by the person who professed to have driven and his wife. But two sober policemen were entirely sure that Claes H had been steering, and the DC accepted their version. One month’s prison. – Affirmed by AC. Leave to SC denied. Mora DC 25 March 2003 matter B 1384-04, Svea AC 22 June 2004 matter B 3224-03 See under 6.2.1. Grounding and collision. Luleå DC 7 Aug. 2003 matter B 1590-03 (Volgo-Balt 144) Valeriy P had been conducting a Russian dry cargo ship from Skuthamn in Piteå outward with a blood alcohol concentration of 2.08 °/oo. The pilot had put the first mate into command and notified the coastguards, who brought the captain ashore. He was sentenced to one month’s prison, which would have been more but for the trouble he would get into on return to Russia. – Non-appealable. Nacka DC 16 Sept. 2003 matter B 2433-02, Svea AC 21 Dec. 2004 matter 7426-03, SC 22 Feb. 2005 matter B 434-05. Returning at night from a well-known golf & country club, Matti K had driven his 900 hp motorboat through the narrow passage of Kolström at a laser measured speed of 41 knots, had failed to stop at a clearly marked and lit coastguard boat and had then proceeded on the wrong side of a sea mark into a wider channel at a speed much exceeding the coastguard boat’s 52 knots. When K could finally be stopped he was found to have an exhalation alcohol concentration of 0.6 mg/litre (1.2 °/oo blood alcohol). DC, remarking that K’s driving was manifestly dangerous and indefensible, sentenced K for gross marine intoxication to one month’s unconditional prison. – Affirmed by AC. – SC denied leave to appeal. Karlstad DC 14 Dec. 2004 matter B 1840-04, West Sweden AC 25 May 2005 matter 1367-05, SC 28 Sept. 2005 matter 2524-05 Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

15

See under 6.2.1. Grounding and collision. Nacka DC 2 Nov. 2005 matter B 748-05, Svea AC 19 Jan. 2006 matter B 9234-05, SC 21 March 2006 matter Ö 763-06 matter Ö 763-06 Peter H driven his small Buster motorboat from a well-known golf & country club in the archipelago and was stopped after a short while. Coastguards found him to drive erratically, at 12 knots where the limit was 8. He seemed to have difficulty manoeuvring his boat to the coastguard boat and was measured for 0.49 mg/litre exhalation alcohol (0.98°/oo blood alcohol). The DC remarked that it was dark and hazy at the moment, that Peter H had somewhat exceeded the speed limit but that there was little traffic. Peter H was sentenced to high fines. – Leave to appeal denied in AC and SC. Nacka DC 25 Nov. 2003 matter B 371-103, modified by Svea AC 14 Sept. 2005 matter B 9706-03, SC 6 Dec. 2005 matter B 3909-05. Intending to execute a threatened assault, David F conducted his 31 displacement ton boat towards the intended victims’ island with an exhalation alcohol concentration found to be 0.61 mg/litre air (1.22 °/oo blood alcohol). Remarking that the act as such merited unconditional prison, the AC mitigated the penalty to conditional prison and high fines in consideration of F’s disturbed personality and depression at the time. – The SC denied leave to appeal. South Roslag DC 29 Oct 2003 matter B 3128-03, Svea AC 4 Jan. 2005 matter B 8721-03, SC 22 March 2005 matter B 552-05 Distracted by a call in his mobile phone, Matts S passed on the wrong side of a marker and grounded. Heartbroken by seeing the propeller and drive destroyed, he drank beer and whisky. After some time a boat towed him off, but he let go of the towrope intending to paddle ashore. Not finding a paddle he resumed drinking. Coastguards and police finally found him drifting and measured 0.87 mg/ litre exhalation air (1.74 °/oo blood alcohol). The DC remarked that a skipper’s responsibility for conducting the boat does not cease when he runs aground but remains on the shoal as well as while being towed and drifting. S was condemned to a conditional sentence plus 50 hours’ community service, corresponding to 1 month’s prison. – AC affirmed, remarking that nothing indicated that S had delivered full responsibility for the conduct of his boat to the towing boat. – SC denied leave to appeal. Nacka DC 12 Aug 2005 matter B 2096-05 Mats Ö had been at Sandhamn Inn. On his way home stopped for speeding without top light at about 20 knots where 5 knot was the limit. He admitted changing places with his daughter. With 0.44 mg/l alcohol air concentration he was sentenced to considerable fines. – Appealed. Luleå DC 26 Oct. 2005 matter B 1631-05 Esbjörn H had been conducting his motorboat in the Pite Strait at clearly above the speed limit and with 0.71 mg alcohol per litre exhalation air (1.42 °/oo blood alcohol). Since the driving involved danger to others and he had a number of previous sentences for drunken driving an unconditional prison sentence was inevitable. One month’s prison. – Non-appealable. Luleå DC 9 Nov. 2005 matter B 1624-05 Viktor V had been erratically conducting a 9 hp boat clearly too fast in the Strömsund canal in Piteå with an exhalation alcohol concentration of 0.80 mg/litre (1.6 °/oo blood alcohol). He was given a conditional sentence combined with 50 hours community service. Personal circumstances were held to justify the non-prison sentence. – Non-appealable. Gävle DC 10 June 2004 matter B 730-04, Lower Norrland AC 7 Dec. 2005 matter B 759-04 Stig E with family had arrived at a public party with one white and one yellow motorboat. Later in the evening E was found drifting in the white boat with the engine idling and without lights other than a cigarette lighter in the Gavle River. A blood test showed E to have 1.71 °/oo blood alcohol. He told the coastguards that a man called Stefan had promised to drive the boat but jumped into the water when he saw the coastguards. E’s wife said Stefan was to drive the yellow boat but when it would not start jumped into the white one. The DC found E’s story Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

16

inconsistent with his wife’s and sentenced E for gross marine intoxication but only to heavy fines, not to prison, because there was no real danger in the way the boat was conducted. AC, accepting that E had been conducting the boat, emphasised that a prison sentence is prescribed for gross marine intoxication although it was not possible upon appeal by E alone to increase the punishment. Affirmed by AC, leave to SC denied 30 Jan. 2006, matter B 59-06. Malmö DC 22 Dec. 2004 25 May 2005 matter B 8501-04 Johan L, 21, had wrongfully borrowed another’s fishing boat and had conducted it in a state of at least 1.93 °/oo blood alcohol. When landing, he hit and damaged another boat. He was sentenced to probation with special treatment for alcohol problem. Short reports on gross marine intoxication from Nacka DC 10 Jan 2005 B 2520-04 Professional boatman Tommi R fell asleep in Saxarfjörden and ran up Lillåkra islet. No trace of alcohol found. Tommi was under medicine for diabetes and could be tired. – Acquitted for negligence in sea traffic. – Non-appealable. 19 Jan 2005 B 2072-04 Thomas N was employed on the Tynningö ferry. When he was to start the first ferry tour at 0800 the skipper did not arrive. To save the situation he decided to conduct the ferry. He had a hangover but did not feel intoxicated. Forgetting the switch for the joystick he could not steer the ferry properly. He was found to have 0.6 mg alcohol/litre exhalation air. As he could not steer the ferry because of his drunkenness, the intoxication was considered gross. – Conditional sentence plus 50 hours community service. – Non-appealable. 20 Jan 2005 B 2320-04 Peter C took an employee on a trip in his rubber boat. Run into a barge he was found to have 1.78 promille. Peter C hurt himself, but there was no other damage. Sentenced for gross marine intoxication, conditional sentence and 50 hours community service. – Non-appealable. 27 Jan 2005 B 2262-04 Fabian H had been to a well-known golf & country club in he archipelago, leaving in his Ribb Osprey boat. According to his GPS he did not exceed speed limits. But the police had clocked him at 14 knots where the limit was 5 knots, and he had 0.57 mg alcohol/litre exhalation air. Conditional sentence plus average fines. – Non-appealable. 2 Feb 2005 B 2421-04 Stefan R had driven outside Sandhamn with 1.17 mg/litre exhalation air. Conditional sentence + 50 hours’ community service. – Non-appealable. 22 Feb 2005 B 2420-04 Martin L had been at Sandhamn. They accelerated when passing police boats. Overtaken and towed back to Sandhamn. 0.97 mg/liter. For gross marine intoxication conditional sentence plus 50 hours community service. – Non-appealable. 24 Feb 2005 B 2518-04 Dennis R had taken some whiskeys at Sandhamn. He took his boat to the club island, at 5 minutes’ distance. It was Gotland Runt night, and the police made checks. R was driving at 15 knots though the limit is 5. He was clearly drunk and had 1.01 mg. 50 hours community service for gross marine intoxication. – Non-appealable. 1 March 2005 matter B 2459-04 Dan W had driven his boat from Gröna Lund amusement park after 6 strong beer + wine. The police saw his boat at Blockhusudden on the wrong side near land. He did not observe their signals, but they overtook and stopped him. He had 0,79 mg. He was given a conditional sentence plus 50 hours’ community service. – Non-appealable. 2 March 2005 B 2536-04

Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

17

Anders B had been arranging a company meeting at Strömma for his employees and was then found driving at 26 knots in the 5-knot limited area of Skuru strait. Measured to have 0.60 mg/litre air alcohol he was sentenced to 50 hours community service.- Non-appealable. 3 March 2005 B 63-05 Lars L had driven his Bayliner from Sandhamn towards distant Tyresö in fog & darkness, navigating by plotter. Seeing 2 lights he turned port but saw that he was near collision with what turned out to be the police boat. He had 0.67 mg/litre air. DC remarked that his driving that evening required care. Sentence: 50 hours’ community service. – Appealed by both. 10 March 2005 matter B 163-05 Niclas T had driven his boat to Saltsjöbaden to meet a prospective buyer who never turned up. He drank 8-10 strong beers, then drove towards Lidingö. In Skuru strait after the end of the speed limit he was clocked at 23.5 knots. He had over 0.50 mg alcohol/litre air. Sentence 50 hours’ community service for gross marine intoxication. – Non-appealable. 13 March 2005 B 2461-04 Carl-Johan D had been at a well-known golf & country club in the Stockholm archipelago. In his Chriscraft he followed another boat at some 161-17 knots. The police found him to have driven at 26 knots in 8-knot (prosecutor – court says 5) limitation. He was clearly drunk but the alco-test result is not mentioned, as D claims it was not reliable. In any case the DC found he could not safely drive the boat. Considering his speed and risks, the crime is gross. Sentenced to 50 hours’ community service. – Non-appealable. 22 March 2005 B 197-05 Peter D had driven his boat with 0,51 mg alcohol/litre air at Strömma and was clearly drunk. Conditional sentence plus moderate fines for gross marine intoxication. – Non-appealable. 28 April 2005 B 433-05 At some 25 knots, Per S hit a shoal at Runö outside Stavsnäs, which he knew well. The boat somersaulted and Per woke up in the water, girlfriend & children in the cabin of the upsidedown boat. He was found by the taxi boat. Those in the cabin had to be sawed out. Per was found to have 1.07 promille. DC Per had travelled a long distance with his girlfriend and children. By luck those in the boat were not significantly injured. The action really merits 3 months prison, but alternative sanction is possible. The family have had a hard time since the accident. Per is aware of the risk of aloholism. He has assented to contract treatement. The Probation Authority’s treatment plan is adequate. For negligence in sea traffic and gross marine intoxication Per S was sentenced to probation with special provision. – Non-appealable. 29 April 2005 B 409-05 Mikael P together with two other boaters had been exceeding the speed limit somewhat, and Mikael P had turned out to have 0.51 mg/litre. DC discusses the sentence. Probation and 40 hours’ community service. – Appealed by both. 29 April 2005 B 497-05 Sven-Erik E is an alcoholic and claims he can take much alcohol without being affected. He was drinking in his sailboat with friends and then left the helm to a girl who ran the boat aground. E was afterwards found to have 2.56 °/oo blood alcohol. He was sentenced as skipper for gross marine intoxication to probation with special provision of sobriety treatment.- Nonappealable. 18 May 2005 matter B 367-05 Christoffer K drove small runabout with 4-5 passengers out of Sandhamn, exceeding speed limit. Found to have 0.58 mg/litre. Conditional sentence and 50 hours’ community service for gross marine intoxication. – Non-appealable. 18 May 2005 matter B 663-05 Cyrus V drove boat dangerously near fisher’s boat having 1.00°/oo. Gross marine intoxication conditional sentence + community service 50 hours. – Non-appealable Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

18

11 Oct 2005 matter B 1397-05 Olof G considered himself an experienced boater. Had drunk some beer but did not feel unsober. He missed a red marker and ran aground. He tried to drive ashore but the boat took in water and began to sink. Called rescue, and coastguards came. They found the boat nearly sunk and its driver smelling of alcohol, talking unclearly and unsteady. He was found to have 0.66 mg/l. He got 50 hours community service for gross marine intoxication. – Non-appealable. 25 Oct 2005 B 2230-04 Tommy M and Joachim Å were boating from a well-known golf & country club in the archipelago. A girl had offered to drive, but they thought they did better so they took turns. They exceeded speed limits & were caught by coastguards in Skuru Strait, having 0.58 and 0.64 mg/litre. Both got conditional sentence and average fines for gross marine intoxication. Appealed 7 Dec 2005 B 2064-05 Carl S had been at a night club on Värmdö where a friend asked him to drive him home. He waited till dawn. After passing Strömma he increased speed and was stopped by coastguards. They noted 31 knots in 5-knot limitation. 0.65 exhalation concentration. Conditional sentence for gross marine intoxication + 50 hours’ community service. – Non-appealable.

7. Salvage and rescue 7.1. Marine finds and wrecks Gävle DC 7 November 2003 matter T 897-99. AC 22 Dec. 2005 matter T 1200-03 (Jönköping) Swedish two-mast schooner Jönköping loaded with champagne and cognac was sunk by a German submarine off Finland in 1916. By research, Peter L localised the vessel and in partnership with Claes B chartered a vessel and set off to salvage ship or cargo. Certain antagonism with the vessel’s owners was settled by the partners agreeing to pay an amount to them. A dispute arose concerning the validity and construction of the agreement. The case was referred to Gävle DC, after a dispute on the court’s jurisdiction since some issues were subject to the Maritime courts (see further 11.1. below). At trial, the court found that the partners were not unduly pressed by the presence of another ship threatening to take over, and that the economical pressure of a high daily rent was no reason for modifying the contract. The court also found that there had been a valid oral side agreement of extra payment in addition to the contract. Neither the Contracts Act section 36 nor MC 16:3 paragraph 3 justified modification. – AC. The appellant have referred to their right as first salvors under the MC. However, the AC does not regard the present salvage as such covered by MC 16:1 but as based upon contract. On the validity of the agreement 4 July 1998 the appellant’s sense of being threatened was not sufficient to invalidate or adjust the contract. Concerning their exposure to economic pressure the AC agrees with the DC that the contract was between equal parties and that the counterparty did not know of the penalties to which appellants were exposed for delay. This is no reason for invalidity or adjustment. The DC judgement is affirmed.

8. General and Particular Average 8.1. Costs of particular average Average Adjuster 25 Oct 2004, PA 3072 , Gothenburg DC 26 Jan. 2005 matter T 11867-04 An assured having appealed against a DC reference of his claim to the Adjuster, then been referred again by the AC to the adjuster, the AC left it to the Adjuster to determine costs at the DC and AC. The Adjuster pointed out that Adjustment costs, except in special cases, are paid by the insurer even if he wins, and that the same should apply to the pre-adjustment procedure costs at the DC and AC. – Appeal recalled at AC 26 Jan. 2005 matter T 11867-04. 8.2. Other particular average matters See cases below under 10. Marine Insurance. Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

19

9. Limitation of Liability 9.1. Limitation Fund Stockholm DC 23 June 2005 matter Ä 14525-05, Svea AC 3 Oct 2005 ÖÄ 6053-05 (Barge Forest) A barge was alleged to have damaged two vital sea cables (Bornholm Cable and Baltic Cable) with its anchor. The barge owners offered security for a limitation fund, which the DC accepted. The Baltic Cable owners appealed, claiming primarily that the establishment of the fund should be disallowed. Under MC 9:7 a limitation fund may be established if legal proceedings have been instituted, which presupposes that such proceedings are undertaken by an “outside creditor”, which is not the case. Secondarily, Baltic Cable claimed that the DC decision be altered on account of the barge having damaged the Bornholm Cable with one anchor, since the legal prerequisites for a fund including the Baltic Cable were absent or at any rate the damage to the two sea cables had not “arisen out of the same event” in the sense of MC 9:5. The barge owners alleged that the DC decision was not subject to appeal. – AC. Under MC 12:4 the court upon receiving an application according to section 3 shall determine the amount of the fund and determine whether offered security can be accepted. If sufficient payment has been made or sufficient security has been lodged, the fund shall be considered as established on the day of the decision. According to the same provision the Court’s decision is subject to special appeal (similarly the other Nordic texts see SOU 1981:8 p. 265 and the Counsel on Legislation in prop. 1982/83:159 p. 295). Considering this and general procedural principles the Court does not find cause to dismiss Baltic Cable’s appeal. According to MC 9:7 a limitation fund may be constituted by the person against whom an action has been brought in this country on account of a claim of a kind subject to limitation. Considering the barge owner’s statements and what otherwise appears from the documents, the action has been brought in a manner proper for claims of the kind mentioned in MC 9:2. Therefore Baltic Cable’s first allegation cannot be accepted. Nor does the Court find cause under the facts of the case to limit the effect of the fund as appellants claim or regard the damages as resulting from different causes (citing ND 1984 p. 129 and ND 1987 p. 160). The second allegation is thus also rejected. The appeal is disallowed. – Non-appealable

10. Marine Insurance 10.1 Hull Insurance Average Adjuster’s Particular Average Opinion 8 Dec. 2004 no. 3074 (Stena Lynx III) A high-speed catamaran ferry’s two outer engines developed damage due to loosened bolts securing the crankcase to the bedplate. The damage had developed during a period of time during which the vessel had been insured with various underwriters and first on the Swedish Hull Conditions of 1987 as amended 1994, then on the 2000 Conditions, and the question was division of the liabilities among the insurers. The Adjuster decided that the damage should be prorated during the period in which the damage must have developed. – Non-appealable. 10.2. Cargo Insurance Average Adjuster’s Statement of Particular Average 12 July 2004 no. 3070 (Sayinur Yardimci), Gothenburg DC11 Nov. 2004 matter T 7969-04 A production line for packing of beverages was damaged by rust after sea transport from Europe to Paramaribo, Suriname, South America. The assured claimed compensation from the insurance. The goods were packed in aluminium foil bags, which in turn were stowed in wooden crates. The cargo policy excepted damage through insufficient and unsuitable packing. – The Adjuster found that the damage was probably due to salt water, that the packing itself may have been suitable, but the bags were perforated by being nailed to the crate floors, which was improper and a risk the insurer had not undertaken; however, the proximate cause of the damage was not the packing but the ingress of water, which was covered. Further, the assured did not inspect the cargo on receipt but left it stored for a whole year until the plant Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

20

was ready to use the machinery. Although under the sales contract this was the seller’s duty, the failure to do it cannot affect the insurer. However, the insurer is liable for that part of the damage that must be taken to have been inevitable upon receipt of the cargo, which the Adjuster took to be 2/3 of the total claim. – The parties thereafter settled the claims somewhat differently, which agreement was confirmed by the DC. Comment. It is hard to see how the exception for insufficient package could be invalidated because the proximate cause of the damage was seawater. Average Adjuster 27 Oct. 2003 no. 3065, Gothenburg 4 July 2005 matter T 11754-03, West Sweden AC matter 3344-05 A machine was shipped from Japan under FCA Gothenburg terms. At inland destination in Sweden it was found to be rusted. Sale agents R as owners during the sea transport claimed compensation from their cargo insurers, who alleged (1) that the damage had not affected R, (2) that the damage occurred outside R’s insurance period, (3) that the package was unsuitable and (4) that R had neither preserved the insurer’s claim nor duly mitigated the damage. The measure of damage was not at issue, the Adjuster being asked to state only if the insurer was liable or not. – Adjuster. (1) Chemical tests show that the damage was probably caused by salt water, involving a loss to the assured. (2) Clean b/l indicated no damage at loading while the plastic package was broken and fallen to the foot of the machine on unloading in Gothenburg indicating damage during the on-deck feeder transport. (3) The packing was most elaborate according to shipper’s normal standard never previously exposed to breakage and not generally unsuitable (4) R had obtained repeated prolongation of the time-bar and had duly notified insurers; notification of the damage only by remark in the haulier waybill was sufficient to preserve claim by assuring proof of sea damage; R could not be expected to take special measures to remove salt water from the machine for the road transport for which the final buyers had responsibility. They are entitled to insurance compensation. – DC affirmed the Adjuster on all items, adding in respect of time-bar that having repeatedly negotiated prolongation from carriers R had informed insurers that further prolongation could not be obtained and had offered a power of attorney for insurers to pursue the claim, which they had not accepted. R were entitled to compensation and costs. – Appealed 19 July 2005, pending in AC March 2006. 10.3 Boat and Yacht Insurance NB. PA below stands for Particular Average Statement. S Roslag DC 14 May 2004 matter T 2263-02, Svea AC 15 Dec. 2005 (Lättja) Ola B’s Pantænius Insurance covered i.a. engine and stranding damage. Sailing across the Gulf of Biscay B in thunder, B started his engine as an act of preparedness, stopping it again upon rattling from the engine. The engine had to be repaired at La Coruna for SEK 18,507. Later, on trying to land at the lock at Brunnsbüttel, the boat was first denied entry and had to motor out against heavy waves, which caused overheating. In connection with the propeller getting tangled, the engine stopped, and the boat drifted towards a pier and suffered certain hull damage. Pantænius’ agent inspected the damage in Sweden. Ola B demanded 86,507 SEK for the damage on the two occasions. Pantænius allowed DKK 5,000 in respect of the Brunnsbüttel hull damage. – DC. Ola B is entitled to the protection of a consumer insurance, where the assured must show the damage by simple preponderance of evidence, whereupon the insurer can show by ordinary burden of proof that an exception is applicable. Ola B reported the Biscay damage (damage 1) over six months after the event, in connection with the Brunnsbüttel damage. As under the insurance conditions damage must be notified forthwith, Ola B is not entitled to cover for this damage. It makes no difference that Pantænius did not for a long time oppose this claim. The Brunnsbüttel grounding damage (damage 2) is admitted. According to Ola B damage 2 was caused by his having to increase the engine revolutions above recommendation against the heavy waves. Pantænius claim that the oil pressure sank, Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

21

as a sign of insufficient maintenance. The DC accepted this and refused coverage. – AC. The parties had agreed that the matter was to be determined according to Swedish substantive law. DC’s refusal of compensation for damage 1 is affirmed, on similar grounds. For damage 2 the AC agrees with the DC that the engine damage was due to normal wear and is not compensable. Ola B is however entitled to transport costs to and from the repair yard but not for own work in this connection. There are certain adjustments relating to costs. – Non-appealable. Gothenburg DC 10 December 2004 matter T 2467-04, overruling Average Adjuster 9 Febr. 2009 no. 3068 Mikael O had been conducting a number of cases concerning his vessel WINDCATCHER (see under 1.2. Registry above) and had claimed compensation from Moderna Försäkringar (Atlantica) under the legal aid cover of his yacht insurance. The Average Adjuster denied one such claim on the ground that it was part of one dispute in which the maximum amount had already been exhausted. – DC, on O’s appeal: Under Atlantica’s conditions the legal aid cover applies to disputes that may be tried by the Adjuster or the courts. The cover is subject to a deductible of 20% or min. 1,000 crowns and is limited to 75,000 crowns for each dispute. A “dispute” is defined to include several disputes based essentially upon the same event or fact. This provision must be taken as intended to give an acceptable protection at affordable cost by ensuring efficient use of paid compensations so as to avoid exposing customers to unreasonable premiums, providing an incentive for the assured to conduct his case efficiently. It should not be understood to allow limitation of the compensation on the mere ground that several disputes have a causal connection. It is also relevant whether a requested compensation concerns a dispute that might have been brought up in connection with an earlier dispute for which legal aid was paid. – In this case the legal aid cover was first used for a dispute ending with a settlement confirmed by this DC, which seemed reasonably contemplated to end dispute. The second dispute was founded on partly new circumstances such as non-delivery according to the settlement and the vessel’s deficient condition. There is a connection between the disputes but the circumstances differ, mainly by concerning new matters after the confirmed settlement. There is a continued discussion on registration of the vessel and validity of mortgages, but the dispute before the Adjuster concerns completely different matters. Mikael O is thus entitled to use his legal aid cover in respect of the dispute before the Adjuster. – Non-appealable. GothenburgDC 22 March 2004, matter T 4188-02, W Sweden AC 28 Febr. 2005 matter T 2304-04, from Average Adjuster’s PA no. 3047 (Teka Elektra) At a boat mart, Sebastian S bought a motorboat whose previous owner was Jacob F. Next autumn he reported the boat stolen and claimed full insurance cover. In the same month Jacob F handed in an admittedly false report of his boat having been stolen. It appeared that the two had jointly bought a boat for twice the value of their own but had no means other than their boats to pay for this new object. The Adjuster did not find sufficient proof of theft and relieved the insurer (2003 issue of these reports). On appeal the insurer denied theft and in any case denied that stolen equipment should be compensated as new for old. – Neither the DC nor the AC considered it more likely than not that the boat has been stolen. Compensation denied, and the assured must cover the insurer’s costs. – Non-appealable. Average Adjuster PA no. 3053, 15 October 2002, Gothenburg DC 1 Dec. 2003 matter T 11542-02, AC W Sweden 19 Nov. 2004 matter Ö 1081-04, SC 19 April 2005 matter Ö 517804 (Vanessa) Spouses S owned a Marieholm 24 boat with a 170 hp inboard engine. On a trial trip in September 1997, Bengt S noted smoke coming out of the cabin, which developed into an ex– plosive fire that burnt out the boat. Bengt jumped into the water and was brought to hospital with burns. His wife U having insured the boat with L Insurance, Bengt reported the loss to L. On L’s refusal to pay, Bengt and U sued L at the local DC, which referred the matter to the Adjuster. L alleged that the spouses had vainly tried to sell the boat; that they had bought Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

22

another boat earlier the same summer; that on the morning of the damage Bengt S had called to inquire whether the insurance was in force; that a fuel line had been twisted in a way that would not have admitted sufficient fuel to run the engine, that the twist had caused a breach and fuel leakage; and that an inspection had revealed inflammable liquids on board. Moreover, the insurance was signed for U and not for Bengt. – Adjuster: While the assured must show the occurrence of an insured event by preponderance of evidence, exceptions adduced by the insurer require full proof (citing cases). Thus while the assured must show fire by preponderant evidence, the insurer must meet this by full proof of the fire being self-induced. Technical investigations have not given definite information how or where the fire arose. On the other hand the technical investigations have shown that the fuel line was so twisted that the engine would have insufficient fuel and that the pipe had broken through torsion, all of which indicates that the pipe had been twisted at sea after the fire. But statements by S that he had trouble with the engine on the morning of the accident tend to weaken this assumption. Also, S’s inquiry of the applicability of the insurance was explained by apprehension that the insurance might have been transferred to the family’s new boat. Nor was there proof of economical motives for inducing the fire. L Insurance must therefore pay, and as both spouses owned the boat together, they were both entitled to insurance money under sect., 54 of the Insurance Contract Act. – DC. Affirmed. – AC. To substantiate that the fire was intentional, L must prove this to the standard normally required in civil cases. As the SC stated in NJA 1990 p. 93 and 1986 p. 470 this does not require a showing beyond any reasonable doubt as in a criminal case, but it requires more than preponderance as for showing the occurrence of an insured event, NJA 1992 p. 113. The State Technical Criminological Laboratory has not found any natural explanation for the fire. The twisting of the fuel line was such that no fuel could have reached the engine, which could not have functioned, and the only person who could have twisted the line was the owner. It is very unlikely that any one would have had cause to do this after the fire. The fuel pump construction is such that no considerable amount of fuel can be sucked out of the tank if it is tried to start the engine after the twisting of the fuel line. Such a quantity would not have caused the fierce fire that clearly occurred. The presence of diesel/petrol mixture in the petrol-driven boat is hard to explain otherwise than as used for intentional starting of a fire. Bengt S’ various explanations to why he was going out with the boat as well as his previous call to the insurer to make sure the insurance was in force and his mention of the fire risk is also suspicious. Altogether the AC finds it proved with sufficient likelihood that Bengt S arranged the fire. The Procedural Code 50:23 prohibiting change of evaluation of evidence depending on credence of witness is not directly applicable but does not affect the Court’s decision. Appeal allowed, with costs. – Appeal to SC allowed on the question of costs only. SC 9 Febr. 2006 matter Ö 5178-04 affirmed the Adjuster practice that the assured is not normally charged with paying the insurance company’s costs even if he loses (citing NJA 2002 p. 613 and certain Adjustments). Each of the parties must bear its own costs before the Adjuster. In respect of costs of appeal before the Courts, the rules of the Procedure Code Chapter 18 are applied by analogy (cf NJA 1994 p. 33 and 2001 p. 738 as well as references in NJA 2002 p. 613). AC’s decision upheld. Average Adjuster 25 Oct 2004, PA 3072 , Gothenburg 26 Jan. 2005 matter T 11867-04 On 21 May 1997 Johan S insured a motorboat with Moderna Försäkringar (Atlantica) for 150.000 crowns. On 4 October 1998 he reported the boat to be stolen and claimed the insurance amount. Atlantica objected that Johan S lacked insurable interest as he did not own such a boat, and if he did, it could only be worth 90.000 crowns and could not be compensated by more. The matter was first brought in Karlstad DC, whose order to remove to the Adjuster (matter T 91-01) was in substance affirmed on appeal (West Sweden AC matter Ö 4462-01). Before the Adjuster Johan S alleged having bought the boat from one PE and moored it at a Karlstad club. It was stolen some time between the 17–22 September in 1998; Johan S lived Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

23

in Oslo and could not attend to it regularly. Atlantica asked Johan S to show his right to the boat, and Johan S produced a contract dated as the time of purchase 2 May 1997. Atlantica could establish that the form used was printed no earlier than the summer of 1998, whereupon Johan S explained that the original had been written on another paper but replaced by the present document, which was more tidily filled in by typewriter. PE, who could not be enjoined to be heard before the Adjuster, had not been cooperative. As Johan S had also changed other statements when confronted with facts, the Adjuster did not find him to have proved an insurance loss, which requires prevailing proof according to the normal procedural standard (RH 1996:3). Compensation denied. According to firm Adjuster practice, procedure costs are payable by the insurer unless the claim is clearly unfounded; such costs were not awarded. The Adjuster held that the preliminary court procedures followed the same rule. – Johan S. appealed to the Gothenburg DC but withdrew his appeal. N.B. In the court proceeding, the Lugano Convention’s rule of an assured’s right to have his case tried in a court was held to apply only to international disputes. This is no longer true since the Convention is replaced by Council Regulation (EC) 44/2001. Uddevalla DC 12 Dec. 2003 matter T 446-02, West Sweden AC 4 Jan. 2005 matter T 1145-04 (Navicula) Christer B had a Mediterranean yacht insurance, applicable to European coastal waters out to 200 nm, but not African coastal waters or the Canary Islands. Believing he had cover to the Canary Islands, he set off for that destination but encountered hard weather 60 miles off the African coast and made for the Moroccan port of Mohammedia for refuge. Close to the port his vessel capsized and was lost. Insurer Pantænius refused cover because the occurrence was outside insurance sailing limits. Christer B objected – as far as considered here – that the applicable Danish law is similar to the Swedish law, and that the emergency that forced him to seek refuge occurred within insurance limits 200 miles from European coastal waters and not in African waters. – DC remarked that a consumer has reason to interpret conditions as they are written and that the emergency did occur within 200 miles from the European coast. Nor did 60 miles off the African coast come within the exception for “African coastal waters”. B was therefore covered. – AC, adding that Danish statutes extend “coastal waters” to no more than 30 miles, affirmed. – Non-appealable. Gothenburg DC 31 May 2005 matter T 6099-03 affirming Average Adjuster 16 May 2003 no. 3061, West Sweden AC as matter Ö 3014-05 Roger E had bought a Flipper 717 C from two persons whom he did not know at the time. He had the boat carried to his home town of Jönköping and insured it with If insurance. The boat was thereafter stolen. If discovered that the reported hull number did not fit any produced boat of that mark and refused payment. E complained at the Adjuster who accepted that E did not know of the incorrectness of the hull number. E also showed pictures of the boat indicating that he had owned such a boat as reported stolen, which the Adjuster also accepted. Even under such circumstances, If questioned whether E had had an insurable interest in the boat. It also turned out that one of the two sellers had been sentenced for handling stolen goods in respect of another Flipper boat (NJA 2000 p. 652). The Adjuster considered whether E was the owner of the boat, since the insurance covered only “the assured and owner of the insured recreational boat”. He found that the “owner” of a boat is one who has acquired in a manner valid under private law. The Adjuster found that although no conflicting claim to the boat had been raised, E had not shown that he was “owner” in this sense. He had bought the boat from unknown persons and had not required the sellers to show their valid acquisition to the boat. He had therefore not made a valid good faith purchase and was not legally entitled to the boat. The DC agreed with the Adjuster’s reasoning. Since the hull number must be assumed to have been manipulated in some kind of criminal action and E had not made a valid good faith pur-

Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

24

chase, E did not have an insurable interest in the boat and was not entitled to insurance compensation. – Appealed 20 June 05. Pending in AC March 06. Comment. The purpose of the rules of the Act (1986:796) on Good Faith Purchase of Chattels is manifestly to protect a buyer’s prior right to property. In this sense the buyer can under certain circumstances acquire “ownership” under section 2 of the Act from one who was not the owner and thus be protected – subject to a right of redemption – against the claims of a previous owner. The Act does not in terms exclude the possibility of the purchaser acquiring ownership in other respects. As long as a purchaser’s title is not challenged by a competing title holder, he is entitled to retain what he has bought, which seems a sufficient interest to be insurable. This ought to be so even if the seller turns out to be a person who has previously been shown to have practiced the selling of objects of which he was not the owner. Gothenburg DC 3 Oct. 2005 matter T 13258-04 affirming Average Adjuster 1 Dec. 2004 no. 3073 On 7 July 2002 Mathias P bought a 1986 Wellcraft 230 daycruiser with a 200 hp Mercury inboard engine, which he insured with Atlantica. After repairs at Kornhall boatyard, the boat remained moored at the yard. Plate states having passed by the mooring place on 1 August 2002 and finding the boat to be gone on the 5th August, which on the same evening he reported to the police and also to Atlantica. Atlantica refused payment, alleging that P had not shown the occurrence of an insured event. For redress, P turned to the Gothenburg DC, which (wrongly, see NB under Average Adjuster 25 Oct. 2004 in (2004) SwMarLaw 2.10.3.) dismissed the matter as falling solely under the Adjuster’s Competence. The Adjuster, citing Supreme Court decisions NJA 1984 p. 501 I & II, concluded that the assured must show in consideration of all circumstances that the occurrence of an insured event was more likely than not, though according to NJA 1936 p. 3 deficient technical evidence may fall to the insurer’s detriment. As according to a statement from the boatyard P had been seen at the yard during the time he stated having been absent, the Adjuster declined compensation. On appeal to the DC, the DC found no reason to change the Adjuster’s finding. – Non-appealable.

11. Courts and Procedure 11.1. Procedural error SC 20 Oct. 2005 matter Ö 83-05 In judgement NJA 2004 p. 764, the SC by a majority of 2–3 affirmed a Svea AC conditional sentence against Erik L for causation of bodily harm and manslaughter as well as marine intoxication as a result of collision in the 300-metre wide strait at Blockhusudden entrance to Stockholm harbour. Two persons in L’s boat were killed while L and a friend were seriously injured. The collision had occurred in the dusk of early morning with V’s port navigation light out of order. V had made a sudden veer to port close to L’s boat causing L to run into V’s starboard side. L applied for the judgment to be vacated according to the Procedural Code 59:1 on account of gross procedural errors, as follows. (1) The Court had reevaluated the testimonies without rehearing the witnesses. While the lower courts had found V’s boat to have been crossing L’s course from port, the SC majority assumed they had approached each other on reciprocal courses, V turning port at a late stage where collision was already unavoidable. The SC responded that it had merely “drawn a different conclusion from the total evidence”. (2) The Court had based its appreciation of the lightness situation on a statement by L which was incorrectly rendered in the judgement and that could not be substantiated in any verbatim reports. The SC responded that the statement was not alone decisive for its negligence evaluation, and even if the statement was incorrectly rendered in the judgement that was not a sufficient reason for a rehearing. (3) The judgement was not correctly based on the prosecutor’s allegations. This allegation was that L “had been inattentive to his boat’s course and position in relation to other sea traffic and that L’s “speed had been two high in view of the circumstances, all with the consequence that he did not observe Vs boat in time”, which two separate Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

25

allegations the SC rolled into one, described as ”sufficient lookout in relation to the speed he kept” which is en entirely different notion. The SC dismissed the objection by stating that “lack of lookout in relation to “L’s speed” was covered by the allegation. A general objection that the decision was for several reasons unserviceable as a precedent was dismissed as irrelevant. Comments: The SC’s dismissal of the objections are extensively discussed by Hugo Tiberg in Festskrift till Peter Seipel, in course of printing 2006. Briefly, a new evaluation of the evidence in the SC judgement is impossible to foresee an counter by the party affected; a citation of the accused’s statements as support for a circumstance must be substantiated if relied upon; exact compliance with the prosecutor’s allegations requires a thorough analysis and must not be brushed off by a simple statement; and in the absence of a statement whether the place of collision was a narrow channel under the COLREG rules or not it is not possible to determine the rule applied by the SC majority, and the decision is not based on a any collision rules at all but on the Court majority’s free evaluation. 11.2. Arrest and default judgement Kalmar DC 20 Aug. 2003 matter T 925-03, reopening Kalmar 18 March 2004 matter T 151303 (Fortuna Australis) See under mortgage above. 11.3. Procedure costs Average Adjuster PA no. 3053, 15 October 2002, Gothenburg DC 1 Dec. 2003 matter T 11542-02, AC W Sweden 19 Nov. 2004 matter Ö 1081-04, SC 19 April 2005 matter Ö 517804 (Vanessa) On the case, with final decision from 2006, see above under Yacht insurance.

12. Other transport law 12.1. Road transport, scope of domestic rules Linköping DC 3 Oct. 2002 matter T 960-00, Göta AC 18 Nov. 2004 matter 4299-02, SC 20 Dec. 2005 matter T 5130-04 (Rogalin) LOAB delivered oil to ferry Rogalin, using Vikingstad as performing carrier and also for mixing the oil. Failure to follow mixing instructions resulted in damage to the ship’s machinery. LOAB compensated the shipowner, whose insurer If, having covered the damage, reclaimed from Vikingstad, who alleged time-bar. – DC found the claim to be time-barred under the Swedish Domestic Road Transport Act (VTL, 1974:610). While VTL does not cover consequential damage, its section 37 provides that any claim for compensation against the carrier even if not based on the contract of carriage is determined by the Act. This would cover also claims for consequential damage based on general contractual principles. Under VTL section 41 the claim is time-barred. – AC rejected If’s allegation of the oil mixing as a separate undertaking beside the transport and therefore subject to the general Swedish ten-year limitation; the mixing was rather a special instruction concerning delivery under VTL. As receiver under LOAB's contract the shipowner was regarded as equivalent to a party to the contract of carriage. If Insurance has further alleged that the damage resulted from Vikingstad’s delivery of defective oil, for which Vikingstad is liable in tort (product liability) irrespective of direct contract with the shipowner. As LOAB was liable as purveyor of the oil, the AC found it clear that LOAB had a right of recourse against Vikingstad. Further, the VTL preparatory works indicated that the Act was not intended as a domestic replica of CMR and that the timebar rules were not clearly intended to be included under the provision excluding claims on grounds other than the VTL. The shipowner´s claim was also made not as a party to the contract of carriage but in tort for product liability. The time-bar did not apply. – SC has given leave to appeal. Comment. Even if LOAB was bound to compensate the shipowner, it is hard to see that the AC has proposed any convincing reasons why this should prolong the performing carrier’s Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

26

liability beyond that normally applicable to a transport. Once the AC had determined that Vikingstad's liability was for carriage and not for a special service, it would seem to be normal that the contract performance should in all respects be subject to VTL. 12.2. Road transport, gross negligence Helsingborg DC 20 Oct 2004 matter T 4128-02, Skåne/Blekinge AC 15 Febr. 2005 matter T 2823-03 Clarion Sweden AB had bought expensive radio equipment from Germany. For carriage, Clarion agreed with Lagerdistribution AB who in turn engaged GeoLogistics AB . After transport to the latters’ Helsingborg terminal, the trailer was detached from the tractor vehicle and placed on the terminal yard on the 6 October 2001. At some time during the 6th or 7th October another tractor vehicle was stolen in the town, was driven to the terminal whose gate was opened by use of a code known to the drivers of all users, whereupon the trailer was stolen from the yard. The cargo owner claimed full damages for gross negligence, which was denied by the DC. – On appeal, the AC affirmed. The court established that for unlimited recovery the cargo owner must first show such loss that the carrier or a servant of his has caused intentionally or by gross negligence. The carrier may still avoid unlimited recovery by clarifying that its organisation was satisfactory for the avoidance of the loss. If the carrier can do so, the cargo owner may still show that even under those circumstances it is clearly more likely than not that the loss was caused intentionally or through gross negligence. – Nonappealable.

III Bibliography 1. Official publications 1.1. Government bills, ministry memoranda etc Prop. 2005/06:51 Transport av farligt gods (Government’s bill on Transport of Dangerous Cargo), Parliamentary print Ds 2005:43 Genomförande av direktivet och rambeslut om åtgärder mot förorening från fartyg, (Implementation of Directive and Frame Decision on Measures against Pollution from Vessels), Fritzes publishers Prop. 2005/06:12 Haveriutredningen vid mindre allvarliga luftfartsolyckor, (Government bill on Investigation of less serious air traffic accidents), Parliamentary print Prop. 2005/05:156 Åtgärder inom sjöfartsskyddet m.m. (Government bill on Measures within the area of Maritime Security etc.), Parliamentary print ADR-S: Statens räddningsverks föreskrifter om transport av farligt gods på väg och i terräng (Swedish Rescue Serices Agency’s provisions on transport of dangerous cargo on roads and off roads), Statens räddningsverk, Karlstad 2005 1.2. Maritime Law Institute’s and Law Faculty’s opinions to Government inquiries Yttrande över direktivet om ökat hamnskydd (Ds 2005:49) (Opinion on the Directive on Increased Harbour Protection), Institute’s web site www.juridicum.su.se/transport Yttrande över genomförande av direktivet och rambeslutet om åtgärder mot förorening från fartyg (Ds 2005:43) (Opinion on implementation of the Directive and Frame Decision on Measures against Pollution from Vessels), Institute’s web site Yttrande om borttagande av krav på svenskt medborgarskap för befälhavare (N2005/6923 /TP) (Opinion on the Removal of requirement of Swedish citizenship for masters of vessles), Institute’s web site Yttrande över Sjöfartsinspektionens intern- och externremiss 010202-054-15078 med förtydligande av föreskrifter (2004:16) om säkerhets-, och miljökrav (Opinion on the Maritime Inspection’s internal and external inquiry 010202-054-15078 with clarification of provi-

Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006

06-04-18

Swedish Maritime Law 2005

27

sions concerning safety and environmental requirements for recreational craft) Institute’s web site. Yttrande over Sjömansserviceutredningens betänkande Välfärdsverksamhet för sjömän. SOU 2005:11 (Opinion on the Seaman Service Investigation’s Report Welfare Measures for Seamen). Institute’s web site.

2. Books Heidbrink, Jacob, Logistikavtalet: allmän kontraktsrätt i en transporträttslig miljö (The Logistics Contract: General Contract law in a Transport Law Environment) , Uppsala, Iustus 2005 Ramberg, Jan, The Law of Transport Operators in International Trade, Stockholm, Norstedts Juridik 2005 Schelin, Johan and Tiberg, Hugo, Swedish Law of Transport, Kluwer 2005

3. Articles and essays Dahlborg, Ida, Internationella köp av fritidsfartyg (International purchases of recreational craft), Examination thesis Uppsala 2005, Institute’s web site www.juridicum.su.se/transport . Egerström, Oscar, Securing maritime claims – the ship arrest regimes in Sweden and England, Examination thesis Lund 2005, Institute’s web site www.juridicum.su.se/transport . Strindlund, Sara, Ansvar vid genomgångstransport respective ren undertransport (Liability in through transport and pure sub-transport), Examination thesis Stockholm 2005, Institute´s web site www.juridicum.su.se/transport Tiberg, Hugo, Developments in the Swedish Maritime Law 2004, Maritime Law Institute 2005, Institute’s web site www.juridicum.su.se/transport . Tiberg, Hugo, Fraud and sinking ships in marine insurance, Institute’s web site 2005 Tiberg, Hugo, Crippling fines for Turkish Oil Pollution (Anatolian Star), Institute’s web site 2005.

Hugo Tiberg Institute of Maritime and Transport Law Stockholm University 2006