Abstract
The chapter examines liability issues with regard to the certification carried out by vessel classification societies exercising both private and public functions. It describes how the application of private law faces different challenges in these two different situations but also how the line drawn between the private and public functions of classification societies is becoming increasingly blurred.
The chapter is a contribution to the project ‘Certification Bodies – Trust, Accountability, Liability’, funded by the Deutsche Forschungsgemeinschaft, and to the project on Private/Public Enterprise Liability, funded by the Danish Research Council for independent research.
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Notes
- 1.
For literature on the liability of classification societies in general, see inter alia De Bruyne (2014), p. 181; De Bruyne (2015); De Bruyne and Vanleenhove (2014), p. 103; Basedow and Wurmnest (2005), Lagoni (2007), Antapassis (2007), Pulido Begines (2005), p. 487. For a law and policy perspective, see Furger (1997), p. 445.
- 2.
For brief, informative introductions to the concept of classification and the history thereof, see e.g., Boisson (1994), p. 363; Lagoni (2007), part 1 (including the historical development of CSs in part 1. A. II.), and Basedow and Wurmnest (2005), part 1. General information on classification societies can be found in Goebel (2018). Interesting information can also be found on the website of the International Association of Classification Societies, www.iacs.org.uk.
- 3.
See e.g. Basedow and Wurmnest (2005), p. 8 f.
- 4.
International Convention for the Safety of Life at Sea, 1974, as amended. For an overview of its content and history, see http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/International-Convention-for-the-Safety-of-Life-at-Sea-%28SOLAS%29%2c-1974.aspx.
- 5.
The method for achieving this differs in the conventions. The two main methods are that the convention obligates (ratifying) flag states to ensure that ships flying their flag obtain the proper certificates and that the convention requires ratifying states to deny ships not in possession of certificates under the convention in question access to its ports or to detain ships calling at their ports. SOLAS is ratified by 163 states representing over 99% of the World’s tonnage, cf. http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents/Status%20of%20Treaties.pdf.
- 6.
The implications of the difficulties in drawing the line between private and public certification will be further explored below in Sect. 4.
- 7.
As an example, the case of the Sundancer could be mentioned (799 F Supp 363, 1992 AMC 2946 (SDNY 1992), and for an analysis of the exemption clause in the case, see e.g. Honka (1994), pp. 1, 15.
- 8.
In German law this follows from §§ 823 ff BGB, limiting the liability for pure economic loss to certain specific situations. In English law, as a general rule, the doctrine of pure economic loss bars recovery for this type of loss.
- 9.
Reino de Espana v The American Bureau of Shipping, 729 F Supp 2d 63d5 8 SDNY 2010.
- 10.
In some legal systems, this problem has been solved by construing third party rights to rely on the contract, see e.g. on the concept of the ‘contract with protective effects towards third parties’, Basedow and Wurmnest (2005), p. 45 ff. In German law this has been accepted in principle, but did not lead to liability in the concrete case, see OLG Hamburg, 14/6/1990 – 6 U 34/90 (1991) Versicherungsrecht 476.
- 11.
More recent cases where this has been attempted include the English cases The Nicholas H [1996] 1 AC 211, [1995] 2 Lloyd’s Rep. 299 (HL) (cargo claim), The Morning watch [1990] 1 Lloyd’s Rep. 547 (pure economic loss). See further e.g. De Bruyne (2015), pp. 221, 223 ff.
- 12.
Resolution MSC.349(92) of 21 June 2013.
- 13.
For the purposes of this chapter, it is only relevant to look at CSs that have in fact been “recognized” and are thus also ROs as otherwise they cannot be authorized to perform flag state obligations. Throughout the chapter, however, the term CS will be preferred, but this should thus not be seen as an indication that the CS is not recognized as an RO.
- 14.
In accordance with Reg (EU) No 391/2009 on common rules and standards for ship inspection and survey organisations, [2009] OJ L 131/11.
- 15.
However, a Member State may ‘in principle’ not deny to authorize an RO, but ‘may restrict the number of organisations they authorise in accordance with their needs provided there are transparent and objective grounds for so doing’, Art 4(1) of Dir 2009/15/EC. Of course, the Member State may also decide not to delegate its responsibilities at all, Art 3(2) e.c.
- 16.
Art 5 of Dir 2009/15/EC. The Danish RO Agreement can be found at www.dma.dk/SynRegistrering/Syn/Klassifikationsselskaber/Documents/Annex%20to%20Danish%20RO%20Agreement%202015.pdf.
- 17.
- 18.
If the potential liability stems from oil pollution from a tanker vessel, the CS may be able to claim that no claim can be made against it on the basis of the International Convention on Civil Liability for Oil Pollution Damage, 1992. That will depend on an interpretation of whether the CS is covered by the channeling provision in Art. III, r 4. This is a separate question from the question of whether the CS may be protected by the general principles of procedural and substantial immunity and will therefore not be dealt with in this chapter.
- 19.
[2009] OJ L 131/47.
- 20.
Art 5(2).
- 21.
In the Al-Salam Boccaccio 98 case, see below n 65, the Italian court held that the recital had no binding force under Italian law because the Italian legislation implementing the directive had not transformed its content into a positive law provision, see Siccardi (2013), pp. 41, 66 available at www.shippinglbc.com/content/uploads/members_documents/Webfile_-_Classification_Societies.pdf.
- 22.
See UN Convention on Jurisdictional Immunities of states and Their Property, 2005.
- 23.
See Shaw (2008), p. 699.
- 24.
The case of the Erika, Tribunal de Grande Instance Paris, January 16, 2008, no 9934895010, p 1-358, The case of the Erika, Cour d’Appel Paris, March 30, 2010, no RG 08/02278-A, p 1-487, The case of the Erika, Cour de Casssation, September 25, 2012, no H 10-82.938.
- 25.
The case of the Erika, Tribunal de Grande Instance Paris, January 16, 2008, no 9934895010, 276.
- 26.
The case of the Erika, Cour d’Appel Paris, March 30, 2010, nr. RG 08/02278-A, 232.
- 27.
- 28.
[2012] OJ L 351/1.
- 29.
Recital (16) of Directive 2009/15/EC would suggest that the EU Commission would take the stance that these two situations are not to be treated as equal. See above, Sect. 3.2.
- 30.
A deeper analysis of this issue falls outside the scope of the present chapter.
- 31.
In tort cases, the tortfeasor may also be sued in the courts of the place where the harmful event occurred, art 7(2). For present purposes this will only be the case if the accident by chance occurs in the territory of the flag state. In respect of persons not domiciled in a Member State, jurisdiction is to be determined on the basis of the national law of each Member State.
- 32.
Dir 2009/15/EC, Art. 5(3) allows for this type of provision. As an example, see the Danish RO Agreement, n 16, cl 5.2.
- 33.
- 34.
Yearsley v W.A. Ross Construction Co 309 US 18 at 20–21 (US 1940).
- 35.
28 U.S.C. § 2674.
- 36.
46 U.S.C. App. § 742.
- 37.
Lagoni (2007), p. 244.
- 38.
Ibid., 245.
- 39.
28 U.S.C. § 2680 (a).
- 40.
Lagoni (2007), p. 247.
- 41.
Ibid, 247, fn 953.
- 42.
Ibid, 248.
- 43.
Another example of CS liability immunity created via governmental immunity is represented by Bahamian law. Thus, according to the Bahamian Merchant Shipping Act, 1976 (with later amendments), § 275 any government appointee is immune from liability for issuing certificates in good faith. In Sundancer, above n 5, it was a held that a CS was included in the sphere of immunity. Consequently, under Bahamian law, the extent to which a CS can be held liable is limited in the same way as the liability of the public authority, Honka (1994), p. 18.
- 44.
The elimination of the liability of the ‘official’, also when the official is a private party exercising public functions, was recently confirmed in BGH, 9/10/2014 – III ZR 68/14 (2014) Neue Juristische Wochenschrift 3580.
- 45.
See e.g. BGH, 30/11/1967 – VII ZR 34/65 (1968) Versicherungsrecht 200; BGH, 25/3/1993 – III ZR 34/92 (1994) Versicherungsrecht 216.
- 46.
See Peets et al. (2016), SeeArbG § 135 margin notes 1 f.
- 47.
Lagoni (2007), p. 252.
- 48.
The dictum is in the case The Nicholas H [1996] 1 AC 211, [1995] 2 Lloyd’s Rep 299 (HL) (n 6). See also Lagoni (2007), p. 237.
- 49.
Lagoni (2007), p. 237.
- 50.
Krüger (1991), pp. 273, 279, 280, 286.
- 51.
Ibid., 277 with reference to Norwegian preparatory works.
- 52.
Ibid., 286. See also Honka (1994), p. 30 ff, making reference to Krüger, but finding that reliance and control become the real issue.
- 53.
In line with this, the Danish Safety at Sea Act even has a provision which explicitly states that the Danish Maritime Authority is not vicariously liable for a CS that it has authorized.
- 54.
Reg II-1/3-1.
- 55.
Resolution MSC.349(92) of 21 June 2013.
- 56.
Part 1, reg 1.
- 57.
Appendix 3 sets out elements to be included in an agreement between the flag state and the RO. Item 8.4 simply states ‘Liability’. However, the footnote indicates that this mainly refers to the potential recourse of the state against the RO in case the state is held liable for loss or damage caused by any negligent act or omission of the RO.
- 58.
e.g. Part 1, regs 2.1.1 and 2.2.2.
- 59.
De Bruyne (2015), p. 237.
- 60.
See also ibid.
- 61.
Above text to n 13 ff and Sect. 3.2.
- 62.
[2014] OJ L 366/83.
- 63.
See n 24.
- 64.
De Bruyne (2015), p. 228.
- 65.
- 66.
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Ulfbeck, V., Møllmann, A. (2019). Public Function Liability of Classification Societies. In: Rott, P. (eds) Certification – Trust, Accountability, Liability. Studies in European Economic Law and Regulation, vol 16. Springer, Cham. https://doi.org/10.1007/978-3-030-02499-4_10
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