This proceeding arose out of a collision between the Norwegian naval frigate KNM Helge Ingstad and the MT Sola TS on 8 November 2018 in Hjeltefjorden outside Bergen. The Norwegian State through the Ministry of Defence (the State) on 13 November 2018 filed a lawsuit against, among others, Twitt Navigation Ltd (Twitt), the registered owner of MT Sola TS. The State argued that:

1. Twitt, Tsakos Energy Navigation Ltd, Tsakos Columbia Shipmanagement SA, Tsakos Group of Companies, and Tsakos Shipping (London) Ltd were jointly and severally liable for the State's losses resulting from the collision, up to the limits of liability set out in the Maritime Code, Chs 9 and 10, which give domestic effect to the LLMC 1996 in Norway.
2. The State was not responsible for the losses of the aforementioned parties resulting from the collision.
3. The aforementioned parties did not have the right to invoke limitation of liability under the laws of other countries or as determined by the courts of other countries.

Twitt argued that the State was responsible for Twitt's losses resulting from the collision.

Following a request from Twitt, the Bergen District Court, now the Hordaland District Court, ruled on 25 January 2019 on the constitution of a limitation fund: see ss 172 and 177 of the Maritime Code. The limitation fund was constituted by an undertaking from the Sola TS's P&I Club, Britannia Steamship Insurance Association Ltd (Britannia). The limitation fund was announced in Norsk Lysingsblad, where a deadline was set for 1 July 2019 to report claims. By the deadline, the State reported claims of up to NOK 14 billion for property damage. The State also reported claims for approximately NOK 765 million for wreck raising, removal, and clean-up, provided that these claims were covered by the fund.

The claims in the lawsuit have been amended several times. On 6 November 2020, the State added Brittania as a defendant. Britannia demanded in principle that the action be dismissed due to lack of judicial authority, and in the alternative that Britannia should be excused from the proceedings. On 26 April 2021, the State amended the claim to include interest for deprivation of funds and delay in payment. The amendment to the claim was commented on in the writ of summons on 21 May 2021, which on the front page named both Twitt and Britannia as defendants, but in which only reference was made to Twitt. Twitt stated that the State's claim for compensation should be processed by the limitation fund, possibly via a limitation lawsuit, and argued that separate actions regarding the quantum of the claims reported to the fund cannot be raised after the fund has been constituted. To this, the State stated in a pleading of 2 June 2021 that changing the claim to an enforcement action is not a new action in relation to s 177 of the Maritime Code. Section 177 provides:

If a lawsuit is filed in this realm or an arrest or other coercive action is requested in connection with claims which by their nature are subject to limitation, a limitation fund may be constituted in the relevant court.

The fund is considered to have been constituted with effect for all who can invoke the same limit of liability, and to cover only the claims to which this applies.

After the fund has been constituted, only the person who created it, its liability insurer, and anyone who has claims that may be required to be covered by the fund can file a lawsuit to have questions resolved about liability for the individual claims, the right to limitation of liability, and the amount and distribution of the limitation of the fund (limitation lawsuit). A separate action on these issues cannot be raised in this realm once the fund has been constituted.

The Hordaland District Court found in favour of the State and referred the case to the Court of Appeal.

Twitt and Britannia argued on appeal that, as a limitation fund had been constituted, the issue of quantification of claims belonged to the fund. Section 177 para 3 of the Maritime Code precludes the possibility of bringing a separate action for the assessment of claims reported to the fund after the fund has been constituted. The provision also prohibits the State from changing the determination action to an enforcement action after the fund has been constituted. Section 178 of the Maritime Code prohibits 'arrest or other coercive action in respect of ships or other property belonging to someone on whose behalf the limitation fund has been constituted' regarding claims covered by the limitation fund. Care must be taken to allow enforcement actions if enforcement is prohibited by law.

By submitting an enforcement action for consideration in competition with a limitation action in the fund, a number of procedural difficulties arise. The State has reported the claim for which an enforcement judgment is now required to the fund, and the scope of the claim is therefore being determined during the fund process. If the issue of assessment is dealt with outside the fund process, it will mean that the issue of assessment and the right to limitation of liability are dealt with in various cases, even if these are inextricably linked. The issue of limitation of liability is already being considered by the fund. There will be a number of ambiguities and adverse effects in advancing the enforcement action.

It is not relevant that Twitt and Britannia will have the opportunity to deal with the quantification issue in a counterclaim. The State has not constituted a limitation fund, and the rules of the Maritime Code do not apply to claims that are not subject to fund processing.

The lawsuit against Britannia was initiated after the fund was constituted. The lawsuit must be regarded as a new, separate action pursuant to s 177 of the Maritime Code, and must therefore be rejected. There is a need for a special decision on the issue of rejection in relation to Britannia.

The Court of Appeal has the right to hear Britannia's claim for rejection in the appeal case. The essential part of the parties' argument, both before the District Court and the Court of Appeal, has been linked to the significance of the extension from a determination action to an enforcement action against Twitt. However, the matter related to Britannia was also put before the District Court, and is covered by the appeal. Twitt emphasised that the allegations apply correspondingly to the insurers, 'where no determination action or enforcement action has been brought prior to the creation of the fund'. The Court of Appeal must therefore be able to deal with the matter in substance and reject the lawsuit against Britannia as well.

On the other side, the State agreed with the District Court's assessments and conclusions. Section 177 para 3 of the Maritime Code only precludes the filing of new lawsuits or claims after the fund has been constituted. The decisive factor is whether the change in the claim represents a new 'separate action'. Here, the State's claim for enforcement is the same action and the same claim as the action for determination of the merits.

If Britannia's submission is to be understood as meaning that the lawsuit as such is required to be rejected, and the Court of Appeal concludes that it has the right to deal with the issue as a Court of first instance, it is argued that the lawsuit is not lis pendens in any case. The reason is that s 177 para 3 of the Maritime Code only applies to claims that are subject to limitation. In this case, a limitation fund has been constituted pursuant to s 172 of the Maritime Code only. The State has also notified wreck raising, removal, and clean-up claims that fall outside the fund, and which in this case must be separately limited pursuant to s 172a of the Maritime Code. Twitt and Britannia have argued that all of the State's claims must be covered by the fund pursuant to s 172 of the Maritime Code, and this argument has been upheld in a judgment handed down by the Hordaland District Court on 16 November 2021: see CMI1726. This decision is not final, and the State does not agree with it.

Held: Judgment for the State. Twitt's and Brittania's appeals are dismissed.

The Maritime Code contains several procedural rules that deviate from the general rules of civil procedure. The rules of the Maritime Code are given priority where they conflict with rules in the Disputes Act; otherwise, the rules in the Disputes Act apply: see s 231 para 2 of the Maritime Code. In the event of a compensation settlement after an accident, the responsible tortfeasor may, on further terms, apply for the establishment of a limitation fund to limit the losses that it has caused to a certain amount: see s 177 of the Maritime Code. The limitation fund is constituted by payment of, or security of, an amount corresponding to the sum of the liability limits: see NOU 1980: 55 p 29.

Several of the rules of the Maritime Code mean that the actual fund creation has legal effects. One of these legal effects is national lis pendens for further separate actions: see s 177 para 3 of the Maritime Code. If a lawsuit has been filed prior to the creation of the fund, so that the dispute is dealt with in a separate action, the judgment must be enforced against the fund: see ss 178.2 and 178.3 of the Maritime Code:

2. After a limitation fund has been constituted in this country or in Denmark, Finland, or Sweden, arrest or other coercive action concerning ships or other property belonging to someone on whose behalf the fund has been constituted and which has the right to limitation of liability may not be made for claims that can is required to be covered by the fund ... . If a coercive action has already been taken, it must be revoked. Security provided to prevent or have the coercive action revoked shall be released.

3. If the fund is constituted in another Contracting State, the court may reject an application for arrest or other coercive action, cancel an action that has been brought, or release a security that has been provided. The court shall reject the application, cancel business that has been carried out after the fund has been constituted, and release security that has been provided after this time if the fund has been constituted in

a. the port where the liability incident occurred, or, if it did not occur in a port, the first port the ship calls at after the incident, or

b. the port of landing, insofar as the claim concerns personal injury caused to someone on board the ship, or

c. the port of unloading, insofar as the claim concerns damage to the ship's cargo.

When the fund is distributed among the injured parties, they receive a proportionate share of the limitation amount, corresponding to their losses.

The Court of Appeal must assess whether, pursuant to s 29-4 para 2 of the Disputes Act, there is a basis for taking a position on the question of whether the cumulation of Britannia is to be regarded as a 'separate action' (see s 177 para 3 of the Maritime Code) against Britannia. This issue was not determined by the District Court. Section 29-4 of the Disputes Act provides:

(1) An appeal may apply to claims that have been decided by the decision that is appealed.

(2) When the claim can be processed in accordance with essentially the same case processing rules, an appeal may, in addition to claims under the first paragraph, include

a) claims which are related to claims pursuant to the first paragraph, and which cannot be advanced in a separate case,

b) claims that are related to claims under the first paragraph when the change is related to circumstances that occurred so late, or became known so late, that the claim could not have been withdrawn in the case earlier,

c) claims that are related to claims under the first paragraph when the other party does not oppose the extension and the court does not find that significant considerations militate against the extension,

d) claims other that are related to claims under the first paragraph when the court finds that the new claim can be processed properly in the appeal case, and weighty considerations indicate that it should be allowed to be processed,

e) new claims that are presented as a set-off objection when the objection could not have been submitted earlier, or the other party agrees.

In the opinion of this Court, it is s 29-4.2.c that may allow for such processing. The conditions are that the claims can be 'processed according to essentially the same case processing rules', that they 'are related to claims under the first paragraph', that 'the other party does not oppose the extension' and that the court does not find that 'significant considerations' militate against the extension. As this Court sees it, the 'significant considerations' factor is crucial. The question of cumulation in such a case must be considered first. Only if the extension of the lawsuit to include Britannia in the cumulation that took place after the limitation fund was constituted does not represent a 'separate action' pursuant to s 177 para 3 of the Maritime Code, can the question of whether the State has the opportunity to amend the claim against Britannia be decided. If the Court of Appeal is to rule on the question related to cumulation, this could mean that the claim is only processed in one instance. In the opinion of this Court, that will be unfortunate in this lawsuit, especially with regard to the values that are disputed. There is also no justifiable basis for a decision, given that Twitt's and Britannia's submissions are unclear. On the basis of the above, the Court is of the opinion that 'significant considerations' argue against extending the case before the Court of Appeal. Brittania's appeal is therefore rejected.

As far as Twitt is concerned, the preparatory work for the Maritime Code does not contain statements that indicate that the phrase 'separate action' should be interpreted differently than in lis pendens assessments elsewhere in civil procedure rules. The Dispute Act in s 18-1 stipulates that if 'a new case is filed between the same parties regarding a claim that is already the subject of the dispute, the court shall reject it'. The question then is whether the enforcement action is the same case as the determination action, or whether it represents another claim, or a 'separate action' under the Maritime Code. The overall assessment is how much the action on the amended claim, according to its content, and factual and legal basis, differs from the action on the original claim. As a starting point, it can be said that if it is to be regarded as a new claim, it must differ so much from the action on the original claim that it is not reasonable to claim that it was asserted earlier.

The claimant in this case is the State. It is the collision between the vessels in Hjeltefjorden that constitutes the actual circumstances. This is true even after the State's amendment to its claim. The decisions will also be based on the same legal basis. The only difference is that in the enforcement action, a decision must also be made regarding the quantification of the claim.

On the basis of the above, this Court agrees with the District Court that the State has the opportunity to amend its claim against Twitt, so that the claim for damages is changed from a determination action to an enforcement action. Twitt's appeal is therefore rejected.