Aage Krogh, IUNO Denmark
The Norwegian Court of Appeal ruled that a ship owner was liable for damages to a sea cable due to gross negligence. However, the court eased the amount of damages from € 140,457 to € 54,022 due to the ship owner’s poor financial situation. In 2009, a network company was granted permission to place a fiber-optic sea cable for transmission of high-speed broadband. The cable was to be placed in Norway between Nesna and Mo in Rana. The location of the sea cable had been presented to the prawn boats in the surrounding area and had been selected in consultation with the fishermen.
During the authorization process, 12 conditions were set down for the placement of the cable. One condition stated that the contractor should give notice to “Statens Kartverk Sjø” (The Norwegian Mapping Authority) with the accurate position of the cable and send a copy of this to “Kystverket Nordland” (The Norwegian Coastal Administration). The conditions stated that the cable could not be put into use before such notice was given.
Another term stated that the contractor – regardless of fault – was obligated to compensate possible damages due to fishing gear being too close to the cable. Compensation could however be omitted if the damages were caused by gross negligence of the injured party.
A Prawn Boat’s Net Got Caught in The Sea Cable
On 22 November 2012, a prawn boat was at sea shrimping when the boat’s net accidently got caught in the fiber-optic sea cable. In order to disentangle from the sea cable the fisherman onboard the prawn boat cut through the cable. Immediately after the cut the network company registered that the connection was cut off.
Consequently, the network company took legal action against the fisherman claiming full compensation for damages. The fisherman counterclaimed and demanded compensation for the ruined net and the following intermission.
Gross Negligence or an Act of Self-defence
The fisherman stated that laying cables and pipelines in the sea pose an extraordinary risk for the fishermen and creates a risk of damages on both fishing gear and cables concerned.
In the fisherman’s opinion he had not acted grossly negligent when the net accidently got tangled and caught in the cable since there was no fishing ban on the stretch. Furthermore, the fisherman stated that some parts of the cable must have been placed on top of the sea bed – otherwise it would not have been possible for the net to get caught underneath the cable.
The fisherman stated that he had to cut through the cable in an act of self-defence due to the dangerous situation where it had been almost impossible to get the cable disentangled from the net and to sink both the net and cable back into the sea. Thus, the fisherman did not find that there was ground for compensation.
In contrast, the network company was of the opinion that it was a willful act and not out of self-defence since the prawn boat was in no distress at sea and no crew members had been in fear of their lives.
The network company emphasized that the fisherman had had more options – e.g. he could have called the coastguard or others for help and advice. Furthermore, he could have cut through the net instead of the sea cable or chosen to shrimp in a different area since the cable was marked on the nautical chart. The network company claimed that they had observed the terms for announcing the placement of the sea cable to all fishermen in the surrounding area.
The District Court: The Fisherman was Entitled to Receive Full Compensation
The District Court did not find that the fisherman had acted grossly negligent when the net got tangled with the fiber-optic sea cable. Thus, the court awarded full compensation to the fisherman.
As far as cutting through the cable with a hacksaw the court stated that it was an intentional act and not self-defence. Subsequently, the fisherman should pay full compensation for the damages upon the cable.
The fisherman appealed this judgment of the District Court and the network.
The Norwegian Court of Appeal: Claim for Damages Against the Fisherman was Maintained but Eased
The Court of Appeal noted that it was impossible to establish how the fishing net was able to get caught by the sea cable. The vital element was that the prawn boat had been shrimping in an area where it should not, and this was the main cause for the accident.
By shrimping above the sea cable – which was not prescribed to be submerged – the fisherman had accepted the risk of getting hooked by the sea cable. Thus, the Court of Appeal stated that the hooking of the net to the cable had to be characterized as gross negligence. The fisherman could not be compensated for operating interruptions.
Following this, the court ruled that the damage on the sea cable was the result of the willful act of cutting the cable with a hacksaw. The court found that there were no elements of self-defence. Thus, the fisherman was liable for the damages inflicted on the cable.
During the proceedings, the fisherman had submitted information regarding his economic situation which was considered to be very poor. In the light of this fact, the insurance company of the fisherman had rejected any liability on the grounds that the incident was willful. For that reason, the court ruled that the compensation had to be reduced from € 140,457 to € 54,022 since full liability would have been too burdening and leave the fisherman empty-handed.
Since the network company was covered by insurance the court stated that the company was able to tolerate the significant reduction of the compensation. Thus, the liability to pay damages was reduced in spite of the negligence.
IUNO’s opinion
The judgment illustrates that even if all the required terms in order to obtain compensation are fulfilled one cannot be certain to achieve full compensation – this even if liability is due to a gross negligent act. In this case the compensation was reduced since the liable part economically was disadvantaged compared to the network company which was fully covered by insurance.
Ref: Norges Hålogaland Lagmannsrett’s judgment of 3 July 2015, case LH-2015-25686
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