In brief: carriage of goods by sea in Norway

Carriage of goods by sea and bills of lading

Are the Hague Rules, Hague-Visby Rules, Hamburg Rules or some variation in force and have they been ratified or implemented without ratification? Has your state ratified, accepted, approved or acceded to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea? When does carriage at sea begin and end for the purpose of application of such rules?

Norway is a signatory to the Hague-Visby Rules, which are incorporated into the Maritime Code, with certain modifications.

The Hamburg Rules were signed but not ratified by Norway. Instead, the Maritime Code has been given certain elements from the Hamburg Rules that are considered compatible with Norway’s obligations under the Hague-Visby Rules.

From the outset Norway varied the rules so that the rights were more favourable for the cargo owner than the Hague-Visby rules stipulated, unless expressly waived by the cargo owner. This continues to relate particularly to the following two categories:

• the tackle-to-tackle principle of the Hague-Visby Rules was replaced with a general rule that the owner shall be responsible for the goods from such time and place as he or she is placed in charge of the goods; and
• livestock and deck cargo are made subject to special liability provisions that cannot be contracted out of.

Norway is a signatory to the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (widely known as the Rotterdam Rules), but has not yet ratified the convention so as to make it applicable. The Norwegian Maritime Law Commission recommends that ratification should take place when the United States or the larger EU states ratify the Convention.

Are there Conventions or domestic laws in force in respect of road, rail or air transport that apply to stages of the transport other than by sea under a combined transport or multimodal bill of lading?

Norway is a party to the Convention on the Contract for the International Carriage of Goods by Road 1956 (the Convention concerning International Carriage by Rail 1980 (as amended by a protocol of 1999)) and the Convention for the Unification of Certain Rules for International Carriage by Air 1999, all of which are incorporated into national legislation by special acts on each of these areas.

Who has title to sue on a bill of lading?

The Norwegian Disputes Act provides any person with a legal claim based in law, contract or tort, with access to sue a person with an adequate relation to the dispute, provided a resolution by the courts is deemed to be reasonably required. The lawful holder of the bill of lading will normally be entitled to bring a claim against the owner. This may be the shipper, the consignee or the endorsee depending on the circumstances of the case.

To what extent can the terms in a charter party be incorporated into the bill of lading? Is a jurisdiction or arbitration clause in a charter party, the terms of which are incorporated in the bill, binding on a third-party holder or endorsee of the bill?

The charter party may be incorporated into the bill of lading by reference. Such a provision will generally be applicable with regard to a shipper who is also the charterer. If the bill of lading is issued or transferred to a third party, the legislation becomes prescriptive so that the rights of the lawful holder of the bill of lading under the Maritime Code may not be waived by contract.

The Maritime Code severely restricts the enforceability of jurisdiction clauses in the bill of lading. Section 310 stipulates that any provision on jurisdiction shall be void to the extent that it limits the cargo owner’s right to bring a claim in either of the following jurisdictions:

• the principal place of business or dwelling of the party being sued;
• the place where the transport agreement is entered into insofar as the party being sued has a place of business or an agent through whom the agreement has been reached;
• the agreed place of loading; or
• the agreed place of discharge, or the actual place of discharge.

The above restrictions do not apply if neither the agreed place of delivery nor the agreed or actual place of loading is in Norway, Denmark, Finland or Sweden or if something else follows from the Lugano Convention of 2007.

Arbitration provisions will similarly only be applicable to the extent that they do not limit the cargo owner’s right to bring a claim in any of the aforementioned places.

Is the ‘demise’ clause or identity of carrier clause recognised and binding?

The starting point in the Maritime Code is that the carrier and subcontractor are jointly and severally liable. If, however, it is made clear that a part of the transport will be executed by a named carrier then the first carrier has the right to limit his or her liability for the carriage executed by the named carrier. In the event that there subsequently is a dispute over which carrier was responsible for the loss or damage or delay, then the principal carrier shall have the burden of proof.

Are shipowners liable for cargo damage where they are not the contractual carrier and what defences can they raise against such liability? In particular, can they rely on the terms of the bill of lading even though they are not contractual carriers?

Under Norwegian law the shipowner and named carrier are jointly and severally liable towards the cargo owner for loss or damage or delay caused during the carriage of the goods. There is very limited possibility to vary these principles, as described above.

Both parties may rely on the defences in the Maritime Code, or incorporated into the bill of lading, unless the bill of lading terms reduce the rights of the cargo owner.

What is the effect of deviation from a vessel’s route on contractual defences?

The Maritime Code has intentionally softened the provisions relating to deviation. Previously, the provision was negatively constructed; deviations could only be made in order to save lives or salvage vessels or goods or other reasonable grounds. All other deviations were unlawful. The new provisions now expressly state that deviations to save lives or to salvage vessels or goods are lawful deviations.

While the change at first glance may appear to be minor, it confirms more affirmatively that the shipowner will not be liable for loss or damage or delay caused by the deviation.

What liens can be exercised?

Pursuant to the Maritime Code, the carrier has the right to retain the goods as security for:

• freight due;
• the cargo owner’s contribution to general average and salvage claim;
• any costs incurred to protect the goods where this is founded in legislation; and
• any other claims for which it is agreed that the carrier may detain the cargo as security.

What liability do carriers incur for delivery of cargo without production of the bill of lading and can they limit such liability?

Where the carrier delivers the goods without the presentation of the bill of lading, and there subsequently comes forward a lawful holder of the bill of lading, the carrier will be liable to the holder of the bill of lading. Under Norwegian law there will in such circumstances be no defences available to the carrier.

In the event that the carrier secured a letter of indemnity from the party that received the goods, the carrier will be able to bring a claim for indemnity under the letter of indemnity.

What are the responsibilities and liabilities of the shipper?

The Maritime Code contains several provisions describing the liability of the shipper. First, the shipper is responsible for delivering the goods to the carrier within the time period agreed with the carrier, and the goods need to then be delivered in a state and in such a manner as to allow for safe and easy loading, stowage, transport and discharge. The shipper also has a responsibility to ensure that the goods are adequately packed, and cannot cause damage to other goods. The general provision stipulates that it is the responsibility of the shipper to ensure no dangerous goods are shipped.

In the event that the shipper cancels the shipment prior to loading, he or she shall be liable for freight loss and other losses. If the transport agreement is cancelled after loading and delivery is to be made at a place other than the agreed discharge port, the shipper shall similarly be liable for freight loss and other losses.

And, naturally, unless something else is agreed, the shipper will be liable to pay freight, which falls due upon delivery of the goods.