This case involved a collision between the frigate KNM Helge Ingstad and the tanker MT Sola TS on 8 November 2018 in Hjeltefjorden outside Bergen. On 13 November 2018, the State, through the Ministry of Defence, filed a claim for determination of liability against Twitt Navigation Ltd (Twitt) in the Bergen District Court, claiming that Twitt was responsible for the State's losses as a result of the collision. Twitt filed for an acquittal of liability and also filed a counterclaim. On 25 January 2019, the Bergen District Court constituted a limitation fund to cover claims in connection with the collision in accordance with the rules in the Maritime Code, Ch 12.

Twitt asserted three grounds of claim for its acquittal:

1. The State's negligent and incorrect navigation prior to the collision;
2. The State's negligent grounding after the collision;
3. The State's negligent use of the frigate when it had technical deficiencies relating to its watertight integrity/damage stability, which caused the sinking.

The parties disagreed on what should be dealt with in the liability determination action. Twitt argued that the Court must decide on the entire basis of the claim invoked for its acquittal, regardless of whether this was related to the collision itself. It contended that other negligent errors that caused or contributed to the frigate's sinking were also relevant to the apportionment of liabilities. Twitt argued that an apportionment of liability must be determined that covers the entire damage or loss, including physical damage and other financial losses. The State argued that the Court must decide on the course of events up to and including the collision between the ships, whether there is fault on one or both sides, and whether there is a causal connection between the damage and the basis of liability. An apportionment of liability must also be determined.

The Bergen District Court ruled that its task was to determine liability based on what happened up to and including the collision between the ships. The Court was to decide whether one of the parties was to blame for the collision alone, or whether there was fault on both sides, and in that case, to apportion liability. The Court emphasised that, while Twitt's first claim put forward was relevant, its second and third claims would not be dealt with during this part of the proceedings, nor could they be stated as grounds for acquittal for liability for the collision in later proceedings assessing the quantum of damages. The Court pointed out that the question of liability for the collision would then have been decided. The Court stated that the second and third claims might mean that in later proceedings on assessment of damages, Twitt would not be held liable for the loss of the frigate and its wreck removal costs, because these losses were not a consequence of the collision.

Twitt appealed to the Court of Appeal.

Held: Appeal dismissed.

The main lawsuit concerns an application for a ruling that Twitt is liable for the State's losses as a result of the collision. In the counterclaim, Twitt has claimed that the State is responsible for Twitt's loss as a result of the collision. It is not disputed that both parties have brought an action for determination of liability, and that the Court in this part of the proceedings will only decide whether the conditions for liability are met. The primary legal basis for the allegations of liability is the shipowner's liability in the Maritime Code § 161, read with § 151. Section 161 of the Maritime Code provides for liability for collisions between ships as a result of fault on one or both sides. The rules are based on the Collision Convention 1910, which has been ratified by a number of maritime nations. The first and second paragraphs of the provision read as follows:

When damage is caused to ships, goods, or persons as a result of a collision between ships and the fault is all on one side, that side shall cover the damage.

If there is fault on both sides, they shall both cover the damage in proportion to the faults committed on each side. If the circumstances give no grounds for an apportionment in any definite proportion, the damage is apportioned equally.

Pursuant to § 151(1) of the Maritime Code, the shipowner is liable to compensate damage caused in the service by the fault or neglect of the master, crew, pilot, tug or others performing work in the service of the ship.

The Court of Appeal cannot see that the District Court has based its decision on an incorrect legal interpretation of § 161 of the Maritime Code, including what is to be dealt with in the liability determination action based on the parties' claims.

With regard to specific liability under the Maritime Code § 161, it has been stated in the legal literature that because the rules on ship collisions preclude the use of statutory strict liability, and otherwise have peculiarities in relation to what would follow from ordinary Norwegian compensation rules, it is important to clarify their scope. Section 161 of the Maritime Code applies to 'collisions between ships', ie where there is physical contact between two ships, with the modification that § 163 extends the concept of collision to a certain extent. The District Court has correctly assumed that the assessment of fault according to the Maritime Code § 161 is based on the general tort law norm. If there is fault on both sides, the proportionate degrees of fault are determined at the Court's discretion.

In an assessment of liability pursuant to § 161 of the Maritime Code, it must be examined 'whether the acts or omissions which are in time before the collision, and which are in causal connection with it, can be regarded as justifiable on the basis of what can reasonably be expected' see Falkanger and Bull, Introduction to Maritime Law, 5th ed (1999) p 196. This makes it clear that the central issue in a liability determination action pursuant to § 161 of the Maritime Code is to obtain clarity regarding fault up to and including the collision between the ships. The course of events after the collision will in principle not be part of the fault assessment, but will be important in the assessment of damages, as the District Court has assumed. This does not prevent Twitt from claiming that other circumstances have had a bearing on the collision, if there is a basis for this.

Accordingly, the Court of Appeal shares the District Court's understanding that in an action for determination of liability, a decision shall only be made on the circumstances at the time of the damage, ie up to and including the collision. If the injured party has contributed to the damage occurring, liability can be apportioned according to the rules on division of liability, which in the present case will primarily follow from the Maritime Code § 161, and possibly the Damages Act § 5-1. If, on the other hand, the injured party has contributed to the consequences of the damage, that will not be relevant to apportionment of responsibility, but to reduce the claim for compensation in the assessment of damages as a result of a breach of the obligation to mitigate loss.

Twitt alleged that the District Court exceeded its competence as a result of ruling on damage in the form of loss of the frigate and wreck removal costs. The District Court's decision is not based on this premise. The District Court emphasised that 'what it is now to decide upon is not liability for loss of the frigate, as Twitt assumes ... It is thus the fault of the collision that the court will now decide upon, not the extent of the damage/loss, including whether it was a consequence of the collision that the ship sank and was lost.' The District Court thus excluded grounds for claims that have not been asserted as the cause of the collision. The Court of Appeal cannot see that Twitt argued that the grounds for claims 2 and 3 were significant for the collision to occur. The District Court should determine an apportionment of liability that becomes the starting point for the distribution of the loss, but the fraction will not necessarily be decisive for the final distribution. The District Court explicitly specified this by stating that the grounds for claims 2 and 3, if upheld, might have the consequence that Twitt would not be held responsible for the loss of the frigate and the wreck removal costs. This meant that Twitt would have the opportunity to assert the grounds for the claim as a basis for acquittal from the State's claim for compensation.

The Court of Appeal further held that the District Court's decision was not 'manifestly unjustifiable or unreasonable'.

[For the successful appeal to the Supreme Court, see Twitt Navigation v The State/Ministry of Defence HR-2021-159-U.]