- 1 -

SWEDISH MARITIME LAW by Hugo Tiberg Professor of Maritime Law at the Stockholm University DEVELOPMENTS 2004 [cite as (2004) SwMarLaw 3rd Ed.] Abbreviations: AD (Labour Court Reports, Stockholm), JT Juridisk Tidskrift vid Stockholms Universitet (Law Journal at Stockholm University, Stockholm), ND Nordiske Domme i Sjö-fartsanliggender (Scandinavian Judgements in Maritime Cases, Oslo), NJA Nytt Juridiskt Arkiv (Swedish Supreme Court Cases, Stockholm), PX På Kryss (Journal of the Swedish Cruising Club, Stockholm), Prop. Proposition (Government Bill), ParlCom Parliamentary Committee Reports, RfH Rättsfall från Hovrätterna (Cases on Appeal, Stockholm), SOU (Sweden’s Official Investigations), Stockkholm, SvJT Svensk Juristtidning (Swedish Law Journal, Stockholm). District Court is abbreviated DC, Appeal Court AC and the Supreme Court of Sweden SC. The terminology follows that of Swedish Law, Juristförlaget Stockholm 1994, and ex-planatory notes in the Swedish Maritime Code (Sjö och transporträtt no 22, Stockholm 2001). Cases not reported in recognised journals are cited by court name, date and case number, and reported cases are referred to by recognised report name. “Fines“ indicates so-called day fines adjusted to a convicted person’s income; “fine“ in the singular indicates a monetary fine. I. Legislation 1. The Maritime Code (MC 1994:1009) and consequential amendments 1.1. Limitation of liability Amendment (2004:651) of chapter 9 sections 5, 8, 10 and 11 implementing the 1996 protocol amending the 1976 Convention mainly raising the limitation amounts. 2. Vessel safety and environment 2.1. Vessel Safety Act (2003:364) and Ordinance (2003:438) etc. Act (2004:416) amending the Vessel Safety Act, containing provisions on notification and measures in hard weather, implementing the EC Surveillance Directive 2002/59/EC. See further on safety legislation (2003:364–373, 2003:438–458, 2003:569) Act (2004:468) amending the Vessel Safety Act, containing provisions authorising injunct-tions concerning warning notices, implementing the EC Directive 2001/95/EC on Product Safety. 2.2. Act (2004:487) on Maritime Security with Amendment Act (2004:487) The Act implements the EC Parliament’s and Council’s Regulation 725/2004 on enhancing ship and port facility security and aims primarily at protection against terrorism and incorp-orates additional rules accepting inspections by EC Commission inspectors. 2.3. Act (1996:18) on certain safety and environmental requirements on recreational craft (Recreational Craft Act) etc Act (2004:646) amending the Recreational Craft Act introducing a duty for importers and sellers of such craft to check their conformity to EC norms and CE marking, in accordance with the EC Recreational Craft Directive. In implementing provisions (SJÖFS 2004:16), the Maritime Administration has added a similar duty for physical persons putting a recreational craft into use, which would exclude the possibility for private persons of bringing non-con-forming and unmarked boats into the Union (see Institute’s opinion below under III.1.2).

- 2 -

Act (2004:475) amending the Recreational Craft Act by implementing amendments 2003/44 /EC of the Recreational Craft Directive 94/25/EC to raise safety and environmental require-ments for recreational craft and also incorporating personal watercraft into the Directive. 2.4. Waterscooter Ordinance (1993:1053) Amendment (2004:607) of the Ordinance including new title “Ordinance on the use of water–scooters”. The ordinance concerns personal watercraft (PWC), in Sweden called waterscoot-ers, including semi-submersible “jet-ski” and floating PWC, the use of which was prohibited except in local arenas to be declared by the County Administrations. The Ordinance was am-ended in 1996 to permit general use of waterscooters that may be described as boats, which the courts interpreted as referring to floating waterscooters (PWC). When this became clear, the Government sought to redefine waterscooters to conform with the EC Recreational Craft Diretive, which would extend the general prohibition to all waterscooters, but the EU Com-mission resisted this. Without notifying the Commission, the Swedish Government then passed the new amendment, which permits waterscooter use only in so-called public fairways (i.e. about 300 channels designated by the Administration primarily for purposes of commer-cial traffic) and areas to be designated by the County Administrations. In two cases during 2005 first instance courts have dismissed prosecutions for breach of the amended text as contrary to EC rules and in two others have referred the matter to the EC court for a pre-liminary ruling on the legality of the text. One of the dismissed cases is awaiting trial in the Svea AC. 3. Waters and waterways 3.1. Act (1980:424) on Measures against Pollution from Vessels (Water Pollution Act) Act (2004:412) amending the Water Pollution Act incorporates provisions of the Directive 2002/59/EC containing a surveillance and information system for maritime transport and involves an addition of certain rules reporting duties and measures in unsuitable weather conditions. 3.2. Act (1983:293) on the Establishment, Enlarging and Abolition of Public Fairways Amendment (2004:601) introducing a requirement of an environmental consequence in-vestigation as a precondition of establishing or enlarging a public fairway. 4. Insurance Act (1980:1097) on the Swedish Ship Mortgage Bank In connection with the new Insurance Contract Act (2005:101, next year’s issue) the Act is amended (2004:428) to include a duty for the Board of checking that insurers have undertaken direct liability and that applicable Insurance Contract Acts provisions will be incorporated. II. Judicial Decisions 1. Vessels 1.1. Character of vessel Sundsvall 1 Nov. 2004 matter B 2584-03 On the character of a Jet-ski “waterscooter”, see 6.1. Right of using water areas. 1.1. Registry Stockholm 20 Oct. 2003 default judgement in the matter T 2992-03, Stockholm 3 March 2004 matter Ä 21149-03, Svea AC 31 March 2004 matter Ö 2504-04, SC 27 April 2004 matter Ö 1808-04 (Marina av Stockholm). United Broker & Law AB in bankruptcy (United) sued Sanscero AB for SEK 1.140.000 as unpaid purchase money for the restaurant ship Marina av Stockholm. As Sanscero did not re-spond or appear, United was awarded the amount in default judgement plus costs and interest.

- 3 -

The vessel and three mortgage deeds having been distrained on 17 and 25 Nov. 2003, on United’s application, Northern Atlantic Shipping AB (Northern) appealed to Stockholm DC, alleging to be present registered owner of the vessel, having bought it, paid the full price and taken possession of the vessel and alleging further that Sanscero had also paid in full. In its decision 3 March 2004 matter Ä21149-03, the DC denied the appeal, for the ship because Northern had not sought inscription of its title at the time of distraint, and for the mortgage deeds because their pledging before Northern’s application was not valid. Sanscero’s non-payment had been established by the default judgement and could not now be challenged. – Affirmed by Svea AC. – Appeal to SC denied. Maritime Administration 21 Jan. 2004, matters 153–154, Stockholm 5 March 2004 matter A 2232-04, Svea AC 11 May 2004 matter ÖÄ 2566-04, SC 2 July 2004 matter Ö 2389-04 (Torsbyfärd) A local ferry had two brothers M inscribed in the ship register as part owners. The brothers were agreed that the owner should rightly be the family Trading Partnership and signed a dec-laration to that effect. All parties concerned applied jointly to the Register for a rectification of the inscription without obligation to pay the stamp duty prescribed for ownership transfer . The Register decided that only a judgement establishing the incorrectness of the present in-scription could justify such a revision. – Affirmed by all instances. 1.2. Sale 1.2.1. Binding agreement Stockholm 31 May 2001 matter T 8632-99, Svea AC 2 Oct. 2003 matter T 5201-01 (Pantera) The case, reported in last year’s issue, is now published in ND 2003 p. 35. 1.2.2. Payment Stockholm 22 Dec. 2003 matter T 16676-02, SveaAC 18 June 2004 matter T 381-04 (Aquamarina) Rolf H from London, with summer house on Tjörn, Sweden, announced his Storö 38, 1976, for sale for SEK 1.4 mill. Fredrik L responded and came to see Rolf H. They had lunch and spent several hours together. In the presence of Rolf H’s wife Signe H the parties agreed on the announced price. Fredrik L provided a standard contact which Rolf H, whose eyesight is impaired, first signed in the place intended for the buyer, then struck over his signature and signed in the proper place for the seller. Fredrik L then signed as buyer and thereafter asked Rolf H to sign again on another dotted line. This dotted line was for receipt of the purchase money. The parties then signed a photocopy of the contract, here in the proper places. The following day Fredrik L faxed the boatyard stating that he was now the owner and had insured the boat, and Rolf H called ordering the boat to be launched for L’s account. However, Fred-rik L equivocated about the payment, alleging a foot injury and other obstacles, and finally said that his money had been stolen out of his car. When Rolf H realised that he had been duped, he reported to the police, but investigation was discontinued for lack of fraud proof; Rolf H instead had the boat attached by the bailiff. It turned out that Fredrik L had been sen-tenced for several acts of fraud and theft and various fraudulent transactions. Rolf H sued Fredrik L for a declaration of ownership. – DC. Fredrik L alleges having paid as receipted by Rolf H, after fetching the money from his car, the money being cash that he had been saving in his father’s apartment. Rolf H alleges not having received any payment. Fredrik L’s story of having left 1.4 mill. crowns in an unguarded car for several hours is not credible, nor does it accord with Signe H’s account of the parties’ encounter. Similarly, Fredrik L’s explanation how he had come by the money is not credible. Rolf H’s account is consistent with facts and is corroborated by Signe H. The boat is declared to be Rolf H’s property. – Appeal recalled.

- 4 -

1.2.3. Good faith purchase and handling stolen goods South Roslag DC 15 Nov. 2002 matter T 3359-00, Svea AC 13 Nov. 2003 matter T 10301-02 Mirabelle This appeal decision, where a non-possessor boat buyer was denied the right to redeem the boat from a later executive sale buyer at purchase price, remains pending at the SC. Tierp7 Febr. 2002 matter B 163-02, Svea AC 16 Nov. 2004 matter B 6093-02 Fredrik L and Martin P had bought a motorboat then lying in Norrtälje boat harbour. They paid the price of 145,000 SEK for the boat and a trailer. They tested the boat at sea, checked the seller’s on their receipt against an identity card and also were shown a written paper which the seller described as his receipt when he bought the boat. They did not check, as they might have, whether the trailer had been stolen. The boat was in fact stolen, and the buyers were in-dicted for handling stolen goods. – The DC found that the buyers had not had reason to be-lieve the boat to be stolen and could therefore not be sentenced. A distraint declared on the boat was lifted, and the boat was delivered to the buyers. – On appeal, the AC stressed the following circumstances. The boat had been sold through a notice on an advertisement board for a price which, though high enough to invite caution, may have appeared low for the boat. The buyers’ only contact with the seller was through a mobile telephone number. The buyers had paid cash, which is not common for a transaction of this order. The buyers had received starting keys and a main switch key but no documents. They had reacted against the boat be-ing sluggish without inquiring for the reason, and they had not lifted the boat to check the bot-tom and propeller. They had not asked or received any information about the boat’s antece-dents, nor checked the engine or z-drive number. They had made no check at all of the trailer. They had not insured the boat. The buyers were sentenced for receiving stolen goods and, as they had sold the boat in the meantime, were ordered to pay its value as damages to the in-surance company. Dissents. – Non-appealable. Comment: The mere fact that the buyers were not condemned in the DC does not suffice to establish a good-faith purchase under the rules applicable before 2003. It does not appear whether the insurance company had reclaimed the boat on that basis or merely raised their claim through the prosecutor. 1.2.4. Defects Karlstad DC 20 Febr. 2004 matter FT 1881-03, West Sweden AC 31 Aug. 2004 matter FT 1918-04 Per J bought a mahogany double-ender from Teddy L. The boat was stated to be built in 1933 and was said to have an Albin 0-11 engine, a type that began to be produced in 1949. The en-gine turned out to be an Albin O-1, converted, but not into an O-11. The hull condition was such that Per’s father could press his finger through at a spot after removal of putty. Per J re-quested cancellation, as the engine should be as per description and a boat should be fit for use, which is not the case with a hull through which you can press a finger. The court held that though the inaccuracy of the engine designation was a breach, it was not an essential one and that for a hull from 1933 the buyer ought to have made a thorough inspection, which he had not done. The claim was dismissed. – AC denied appeal. Non-appealable. Swedish Cruising Club Arbitration no. 9, 5th May 2004 (Zoom) By undated contract allegedly signed in early March 2003 defendant Z sold to first plaintiff his M/S yacht Zoom, an Oyster Lightwave 395, lying at Las Palmas Gran Canaria. The sale was confirmed by seller’s Bill of Sale dated 10 March 2003 naming both plaintiffs X and Y as buyers. Under Disputes, Clause 9 of the contract, the contract ticked off arbitration according to the Swedish Cruising Club arbitration procedure. These procedure rules were appended to the award. On 29th August 2003, plaintiffs submitted a complaint concerning the contract. They asked for cancellation of the purchase and for sellers to be ordered repayment of the purchase mon-

- 5 -

ey, including cover of repair costs and extras to which buyers had been put. Alternatively, if the Arbitrator should not find sufficient reason for cancellation, they asked for price reduction to the price of a boat in the condition contracted for. In either case, they requested damages covering loss and expenses caused by the transaction. Defendants denied any liability except for a non-serviced liferaft. The contracted price was £ sterling 53,000, payable 10 March 2003. Under the contract, equipment was to be ”as per attached inventory”. No such inventory was presented, but plaintiffs submitted a number of e-mail documents from the seller’s broker and the seller containing representations concerning the boat and its equipment. These are listed in the award. Of these documents, some are general marketing sales information, while one contains specific information given in the course of negotiations. According to plaintiffs, the following discrepancies occurred between the documents and the true facts. (A) The engine was stated to have had a ”major overhaul” in April 2002, which was inconsistent with its condition, being dirty and dusty, the engine number not visible under a dust layer, producing much smoke, the fuel system leaking, the cooling system being partly blocked and the thermostat missing. (B) The gearbox, flexible coupling, stern gland and propeller were stated to be replaced, which though seemingly true was non-expertly done causing damage and repairs. (C) A hydraulic backstay adjuster stated to be in place was broken. (D) Sails stated to be ”complete wardrobe including” dacron main and several (used) head-sails, kevlar/mylar main and several headsails (some new unused), spinnakers two, one (used) one new (unused); of all these the dacron wardrobe contained one torn genoa 3, one genoa 4 and no mainsail, while the used kevlar/mylar headsails were torn and useless (others being later offered to be sold separately), and the purported ”some new unused” kevlar sails were missing as well as the new spinnaker. (E) The liferaft stated to have ”latest certificate” was not accordingly serviced, last service date being 1989. (F) The outboard engine described as Mercury 4 hp 2001 was very old, perhaps from 1981. (G) Antifouling stated to be properly done to last the whole current year had not stopped barnacles and slime over large underwater areas, particularly the keel. (H) Z’s own low purchase price stated in the correspondence to be due to tax reasons was in fact due to osmosis infection, which shows he was aware of that infection. (I) Of the promised new anchors, only one was provided, and replacement for the other had to be bought from the seller separately. For repair or replacement of these and some other deficiencies and for costs incurred the plaintiffs submitted a list adding up to €14,107,78. Future repair and replacement costs needed to bring the boat to standard were estimated at €28,090. Having been offered osmosis repair, the plaintiffs temporarily withdrew a repair claim of €13.000. Thus, the remaining claims added up to a total of € 29,197,78. In further support of the claims, plaintiffs submitted a survey report. The purchase was negotiated by X on behalf of both plaintiffs. On the faith of the available representations concerning the boat, and his trust in the seller, X did not order a survey or test sail the vessel, though his wife and Y saw it prior to the purchase. Defendants denied all claims except for the inspection of the life raft and also procured a written undertaking from a firm responsible for osmosis treatment to rectify damage should previous treatment by them be shown to be defective in workmanship. Parties’ grounds

- 6 -

The parties had agreed that the dispute should be solved on the basis of the contract provi-sions rather than the Swedish law of Sale of Goods. Plaintiffs alleged that irrespective of the contract’s disclaimer of warranties, the seller was responsible for his and his broker’s actual representations in connection with the sale and that on such ground buyers were entitled to cancel the contract or claim price reduction, and in either case to damages for unnecessary expenditure. In support of cancellation, they alleged that Z knowingly concealed the boat’s uselessness for its intended purpose and particularly its being affected by osmosis. Sellers were understood to allege that in the absence of warranties of quality, performance and conditions they were not under the contract liable for possible defects and also that the Bill of Sale relieved them of “all responsibilities”. The arbitrator said that according to the parties’ submissions, the dispute must be deter-mined on the basis of the contract alone. Thus the seller’s allegation that the contract did not indicate the applicability of Swedish law was immaterial to his decision. ”The sellers’ allegation that the contract’s disclaimer of warranties of quality, performance and conditions relieves them of any liability might be accepted if the whole agreement were found in the contract. It is not. First, the contract specifies only the boat, though it is common ground and indeed indicated by the contract’s reference to an inventory, that the agreement includes matters not mentioned in the contract. Supplementation is found in Z’s and the brok-er’s various statements as submitted. It is a matter of course that the seller is responsible for the correctness of his representations, as well as for those of his broker according to a general principle of agency. Moreover, the contract’s warranty disclaimer is expressly subject to the seller’s good faith, and the seller is thus responsible for defects he knew of. As for the Bill of Sale, the passing of responsibilities refers not to defects but to future events. Representations binding the sellers must be reasonably specific. To the extent they are, the buyers should be entitled to trust them and need not investigate or survey the object unless called upon by the seller to do so. The sellers have not contested the correctness of the submitted representations, nor the stated non-conformance of these with the vessel’s actual condition. The mentioned discrep-ancies are therefore the basis of my determination of the seller’s liability.” The Arbitrator considered the various items before coming to the issue of cancellation. ”As one alternative, plaintiffs are claiming reduction of the boat price plus costs. However, since the reduction claimed is in the amount of costs paid and expected, the claim is more conveniently described in terms of compensation for these costs plus cover of unnecessary costs and losses suffered through the boat’s defective condition. The reasonable correctness of technical statements and estimates has been checked with the Club’s technical expert Lars-Olof Norlin who has somewhat adjusted some amounts. Work that appears to have been done, albeit badly, falls under the warranty disclaimer and can therefore not be charged. Where it seems impossible to separate what costs pertain to it-ems to be covered and such not to be covered, one half thereof is calculated.” There follows an extensive list of items expended or to be expended, evaluated by the Arbitrator according to the indicated principles and ending up as € 3188,60. Of necessary future repairs, the highest item, for osmosis repair, had been withdrawn. The Arbitrator stated: ”This important item was not supported by sufficient proof. It is not shown in the material submitted to arbitration that Z assured absence of osmosis, and though it seems indicated that Z’s own low purchase price was due to osmosis, there is evidence that the boat was afterwards treated for osmosis, as stated. Under those circumstances, the plaintiffs have decided to accept Marine Nacho Sport’s offer to repair the damage if due to defective workmanship, and reserve their claim if this is not performed by the 1st January 2005.”

- 7 -

Another list of future costs, scrutinized in the same manner, was reduced to € 11.150. The grand total thus added up to €14,338:60. Turning to the requested cancellation of the purchase, the Arbitrator rejected this: ”Considering the repairs that the buyers have already affected, they cannot restore the vessel to the sellers in the shape and condition received. Considering also the use the buyers have made of the vessel, and that the surveyor’s report by no means describes it as worthless, the Arbitrator does not find cause for cancellation.” On such grounds, the plaintiffs were awarded the amount of € 14.688,60 plus interest at the legal rate as from the date of serving the application, payable jointly and severally by the defendants. Costs at the Cruising Club, payable jointly and severally by the parties, were SEK 500 from each of them. In other respects, both parties must support their own costs. The € 13,000 for osmosis repair were stated not to be presently in dispute. Should Marine Nacho Sport fail to properly repair this damage at their own expense before the 1st January 2005, the arbitrator declared himself ready to consider this issue separately. Västervik 10 Nov. 2003 matter T 200-03, Göta AC 22 Dec. 2004 matter T 3102-03, SC 16 Feb. 2005 matter T 392-05. Nils L looked at an advertised boat but found it too expensive. Later, he himself advertised, and the same boat owner called, offering a lower price which L accepted. Only a receipt was made out for the sale, but the seller orally assured that the boat had not run aground or been subject to unnatural external force. Nils L fetched the boat from a trailer. After launching, he found leaks and a great many serious defects. He sued the seller for a considerable repayment or rescission of the purchase. – The DC found none of the defects to be caused by grounding or external force, while others could not be invoked, as they should have been visible on L’s previous inspection. Claims rejected. – AC, where L had set down his claims to such depend-ing on external force: Expert W has testified that badly mended damage to the boat’s bottom and wooden engine bed as well as its stern tube being loose must be due to hitting against rocks or possibly being dropped during a lift. They are thus comprised by the oral warranty. The seller’s allegation that all damage must have been caused by L after the sale are dis-proved by W’s testimony, including the fact that they were repaired, though badly, and that there were barnacles which do not occur in the waters where L had used the boat. Under the Sale of Goods Act section 19 a relevant defect includes non-conformity with the seller’s pre-sale statements concerning the goods, and under sect. 20 the buyer may not invoke defects that he ought to have noted. The indications of damage that L might have seen were not such as should have led L to the conclusion that the warranted statement could not be true. L may therefore invoke the defects. L’s pleading alteration in the AC to comprise rescission prim-arily rather than secondarily is acceptable. The defect is essential and is shown to reduce the boat value to less than one half. L is therefore entitled to rescind the contract, and the decision is reversed, with costs to L. – The SC denied leave to appeal. 1.2.5. Broker commission Sollentuna DC 7 Dec. 2004 matter T 33930-03 (Garm) In spring 2003 Mats J approached T at Djurgårdsvarvet Båt & Motor to sell J’s ship for an asking price of 740,000 crowns, with a 5 % commission. T had exclusive rights, but both par-ties hadd reserved the right of cancelling upon notice. T contacted S to whom J later sold the ship for SEK 600.000. T sued for his commission. J alleged negligence in T’s failing to con-vey bids from S to J and refusing to make a contract with a buyer of J’s choosing; in the last resort the commission must be set down. – DC. The right of commission presupposes (1) a brokerage agreement aiming at finding a contractor, (2) the broker’s activity having led to contact between the parties, and (3) a resulting sale. These requisites are fulfilled. Both parties had been given a right of immediate cancellation upon notice, and J had given such notice af-ter T’s notifying S as buyer. According to practice this is sufficient for earning commission if

- 8 -

the intended deal is thereafter closed. As for failure to convey a bid from S, T had at that time a higher bid from prospective buyer O. As the court finds it reasonable of the broker to have conveyed only the higher bid, there is no right to rescind on this ground. As for refusal to write a contract with S, T had conceived himself as bound to sign with O, and even if it is a breach of the engagement not to sign a contract as requested, it is not an essential breach entitling J to rescind the engagement. As T’s refusal to make up a contract with S has not caused any economic loss to J, there is no ground to set down the commission. Claim ad-mitted. – Svea AC denied leave to appeal. 1.3. Damage from bunkers Linköping 3 Oct. 2002 matter T 960-00, Göta AC 18 Nov. 2004 matter 4299-02 (Rogalin) LOAB delivered oil to ferry Rogalin, using Vikingstad as performing carrier and also for mix-ing the oil. Failure to follow mixing instructions resulted in damage to the ship’s machinery. LOAB compensated the shipowner, whose insurer If, having covered the damage, reclaimed from Vikingstad, who alleged time-bar. – DC found the claim to be time-barred under the Swedish Domestic Road Transport Act (VTL, 1974:610). While consequential damage is not covered under VTL its section 37 provides that any claim for compensation against the carrier even if not based on the contract of carriage is determined by the Act. This would cover also claims for consequential damage based on general contractual principles. Under VTL section 41 the claim is time-barred. – AC rejected If’s allegation of the oil mixing as a separate under-taking beside the transport and therefore subject to the general Swedish ten-year limitation; the mixing was rather a special instruction concerning delivery under VTL. As receiver under LOAB's contract the shipowner was regarded as equivalent to a party to the contract of car-riage. If Insurance has further alleged that the damage resulted from Vikingstad’s delivery of defective oil, for which Vikingstad is liable in tort (product liability) irrespective of direct contract with the shipowner. As LOAB was liable as purveyor of the oil, the AC found it clear that LOAB had a right of recourse against Vikingstad. Further, the VTL preparatory works in-dicated that the Act was not intended as a domestic replica of CMR and that the timebar rules were not clearly intended to be included under the provision excluding claims on grounds oth-er than the VTL. The shipowner´s claim was also made not as a party to the contract of car-riage but in tort for product liability. The time-bar did not apply. – Appeal to SC pending. Comment. Even if LOAB was bound to compensate the shipowner, it is hard to see that the AC has proposed any convincing reasons why this should prolong the performing carrier’s liability beyond that normally applicable to a transport. Once the AC had determined that Vi-kingstad's liability was for carriage and not for a special service, it should have been clear that the contract performance was in all respects subject to VTL. 1.4. Vessel safety Gothenburg 24 September 2004 matter B 1675-04 (Silverland) Fisherman CH had been serving as master on ship-sized fishing vessel without having the for-mal competency of class VII required for this. He alleged not having known of the require-ment, which the court declared to be irrelevant. He had also been trawling for shrimp catching more by-catch than permissible under EC rules. The DC understood this to be intentional. He had also trawled on the prohibited side of the trawling limit. Day fines for breach of the vessel safety rules, money fine according to the size of the vessel for prohibited trawling, and forfeit-ure of the value of the catch. – Non-appealable. Maritime Inspection decision 3 Nov. 2004 matter 2004-3931 Owners of vessels used for fishing charter had applied for extension of their Master VI com-petency needed for conducting their boats to the fishing fields. The Inspection refused pro-longation, stating that under the Maritime Administration’s provisions prolongation required practice on board vessels of a burthen over 20, and that no prolongation could be granted. – Appealed to the Administrative court.

- 9 -

2. Vessel Owners etc. 2.1. Shipping partnership Svea AC 8 June 2004 matter Ö 1149-04 Matter of venue for a claim concerning shipping partnership. The case began as an ordinary payment claim and was sent to the competent maritime court when its character had been realised. – Remanded to Gothenburg MC. See further Jurisdiction and venue, 11.1. 2.1. Boat club Linköping DC 2 September 2004 matter FT 1672-04, Göta AC 31 March 2005 matter FT 2562-04 Oded S, member of the Kinda Boat Club, asks for a declaration that he is not obliged to per-form any work at the club and for repayment of certain money. He alleges that he is disabled, that the club byelaws excuse disabled persons from work without compensatory payment, and that a previous Club chairman has promised him such exemption. DC. The Club’s present byelaws provide that members must either fulfil their working duty or pay. The board is not given any right to dispense from this. The previous byelaws had no corresponding provision, and the absence of a debit for non-work in Oded’s Club bills bears out his contention. Oded is therefore entitled to reclaim such money as he has been forced to pay for 2002. Claims for damages for unnecessary drives to the Club and for a Doctor’s certification are groundless. Each party must bear their own costs. – AC denied leave to appeal. 3. Personnel 3.1. Qualification of seamen Östergötland Administrtive Court 9 April 2993 matter 1761-02. Johan H had military experience as a submarine officer and demanded that this should be counted as sea time for qualification as an officer in the merchant marine. The court, ob-serving that the relevant provison (SJÖFS 2000:1) equalizes service on fishing vessels and certain others not including submarines and that the applicant certainly must be supposed to possess the necessary skill and experience for the post, concluded that since the formal re-quirements were not fulfilled, the application could not be granted. – Non-appealable. 3.2. Shipmaster’s liability Nacka 24 March 2004 matter B 1720-03 The girlfriend to whom the boatowner had left the steering and who was killed in a following collision, was regarded as sole conductor of the boat. See further under Negligence in Sea. Nacka 21 April 2004 matter B 360-04 Carl-Fredrik K drove his boat under influence of alcohol from a well-known golf & country club in the Stockholm archipelago for some 100 metres at about 20-25 knots before handing over to his girlfriend, who was killed in a following collision. K was indicted and sentenced only for the short drunken drive before handing over to the girlfriend, and not for his contin-ued activity of lookout and directing the vessel’s course (see below). – Non-appealable. Kalmar MC 17 May 2004 matter B 787-04 (trawler LBB–1124) Libility in damages of master sentenced for criminal conduct, see under 6.3.3. Gross marine intoxication. Traffic 6.1.1. 3.3. Pilot’s liability Malmö DC (Maritime Court) 30/11 2000 matter B 1462-00, AC Skåne/Blekinge 18 Sept. 2001 matter B 30-01, new trial ordered SC 12 June 2002 matter Ö 3866-01, retrial Skåne/Blekinge AC 30 Jan. 2004 DB 1016 matter B 2628-02 (Hyphestos) In its western part, the Malmö Oil Port is a square southward indentation in a West-East shoreline, with westerly berths 1001/2 at right angles to the shore and berths 1003/4 angling

- 10 -

east parallel to the shore. Tanker Hyphestos, bound for berths 1001/2 was approaching from the northwest, with tug Bohus pulling ahead and tug Dunker following aft to check the ship’s headway. Once in the basin, the ship was turned some 120° to starboard facing berth 1001, her port side to berths 1003/4; Bohus now pulled starboard and Dunker was aft on the ship’s port side. At this stage, the tanker about stationary, pilot A in agreement with the master or–dered a forward “kick” of her engine to approach berths 1001/1002, intended to be followed by a reversal, whereupon the ship would be pushed into position at the berth. However, the reversing was delayed, and the ship went into the pier at one or two knots, damaging a crane for some 20 mill. SEK. A was indicted for negligent navigation. The DC sentenced A to fines for negligent navigation. A should have been aware of the slow reaction with orders given through the master to the engine room and should have used the tugs to continue turning the vessel. The AC denied leave to appeal, which the SC reversed after new evidence including data simulation test. AC. It is now clarified that the vessel made a round turn ending up almost stationary with her bow about 45° to the intended landing quay and about 200 metres from the quay. The data simulations show that the ”kick” ordered at that stage would not have resulted in a collision if at the end of the manoeuvre the bow had been 45 metres from the quay at a speed not exceed-ing 1.5 knots, the tugs had been towing starboard and port respectively and the vessel revers-ing with full force. At that point the speed seems in reality to have been about two knots and the angle to the quay too large. The reason for the higher speed is unclear, but the engine log notes ”slow ahead” instead of ”dead slow ahead” as A is accepted to have ordered. It is also possible that tug Bohus towed the vessel too much ahead. It is admittedly difficult to note a difference between 1 and 2 knots from the bridge of a vessel of Hyphestos’ size, and A cannot be blamed for failure to note the too high speed earlier than at 45 metres from the quay. The prosecutor has therefore not shown negligence, and A is acquitted. – Non-appealable. Comment: In an older Pilotage Ordinance, the pilot’s duty comprised only directions concerning navigation and manoeuvring needed on account of the waterway characteristics for safe conduct of the vessel (Tiberg in SvJT 1967 pp.529–538). In section 7 of the present Ordinance (1982:569 as amended (1986:301), the reference to the waterway characteristics has been removed, so the duty includes manoeuvring in the full sense, with regard also to other vessels. The present case illustrates the fullness of the pilot’s responsibility. 4. Employment of vessels 4.1. Carriage of goods 4.1.1. Freight claim Malmö 27 Oct. 2003 matter FT 7030-02 Bomag AB occasionally sent trucks with TT Line and were always required to pay cash on delivery on board. On 20 April 2002 they had a new wheel loader sent from Trawemünde to Trelleborg and alleged having orally agreed with TT Line’s freight broker Thomas A to pay at destination. Refusing on the vehicle’s arrival to pay freight, which they said was for the sel-ler’s account, they were sued by the Line. Thomas A testified that the ferry had already left Trawemünde when Bomag called, so there was no choice but to have costs paid on discharge. DC observed that the wheel loader’s invoice price was quoted per Trawemümde so that the buyer must pay for the further transport. Through the telephone call with Thomas A, Bomag made a freight agreement and became bound to pay the sea transport. – Non-appealable. Varberg 11 Aug. 2003 matter T 22882-02, West Sweden AC 12 March 2004 matter T 3755-03 Nordic Trading Co (NTC) ordered carriage of chemicals from Felixstowe in England to Am-sterdam with Huktra NV carriers. On Huktra’s claim for freight, NTC responded that the transport had been so delayed that Huktra were not entitled to freight. To Huktra’s allegation that any right of freight reduction had been lost for late notification, NTC replied that Dutch

- 11 -

law applied and not CMR, since the carriage was wholly by sea and not by road and no con-signment note had been made out; also, notice had been given orally by consignees on arrival. – DC: Under CMR art. 2, the convention applies as long as the cargo is not unloaded from the land vehicle, and under art. 4, it applies irrespective of consignment note. Under CMR art. 30 (3) written notice must be sent to the carrier within 21 days of the goods being placed at the consignee’s disposal, failing which a claim for delay compensation cannot be maintained. NTC had thus lost the right of claiming freight reduction for delay. – AC denied appeal. Non-appealable. 4.1.2. Freight payment Gothenburg 17 June 2004 matters T 11701-03 and T 11969-03, West Sweden AC 4 March 2005 matter T 3355-04 Nordic Trading Co (NTC) orally ordered from Inchape Shipping carriage of one container from Tilbury to Karachi, then from CMA Scandinavia another transport from Antwerp to Jebel Ali in Dubai, all parties having their seats in Sweden. NTC delayed payment under various pretexts, finally stating that they had agreed to being billed in dollars and that with the invoices in SEK they risked being billed twice for the same debt. – DC, remarking that NTC had not shown any agreement to pay in any particular currency and that moreover the bills all stated a rate of exchange if NTC wished to pay in dollars, declared NTC bound to pay the SEK amounts as debited. – AC affirmed. 4.2. Chartering 4.2.1. Loading damage Gothenburg 12 January 2004 matter T 19715-98 and T 7197-00, West Sweden AC 4 March 2005 matter T 1395-04 (Clipper Cheyenne) BMH produces heavy bulk dischargers for cargo ships. They sold two such dischargers on CIF conditions to US buyers. They made a Liner Booking Note with van Ommeren Shipping Agency for loading and shipment on a vessel bareboat chartered to French Phenix, to whom Ommeren had entrusted performance. Lifting the dischargers under Phenix’s directions failed twice, causing damage to the goods and ship and delay under the sale contract. BMH jointly with its insurer sued Phenix as performing carrier. Gothenburg 13 June 2001 matter T 1971-98 (reported in (2000) SwMarLaw) had accepted jurisdiction to entertain the claim. – AC, affirming DC, concluded that the lifting arrangement had probably been unstable, that there was no proof of the mishap being due to movements of the bulkloader’s parts during the lift-ing, and that the carriers had not been able to show that neither fault or neglect on their part had contributed to the accident. The carriers were ordered to compensate the damage. 5. Navigable waters 5.1. Harbours Karlstad DC 18 March 2004 matter T 277-0, W Sweden AC 28 Feb. 2005 matter T 2260-04. M/S Björg was registered as a passenger motorship with Carina C as owner till the end of 2002. In the winter of 2000–2001 the vessel was moored at the wharf of former Karlstad Shipyard, where she sank in early May 2001. After admonitions by the municipality to re-move the vessel, Carina C’s ex-husband Lennart finally raised her in April 2002. In June 2002 the municipality moved the vessel according to the Act (1986:371) on Removal of Vessels in Public Ports, whereupon she sank again in October 2002. The municipality then raised the vessel, for which it debited Carina C the amount spent for the raising plus moving costs from the summer 2002. Since the turn of the year 2003/03 Lennart C is registered owner of the ves-sel, which sank again in March 2003. The municipality sued Carina C for 161,917 crowns for salvage expenditure and 20,716 for removal costs. – DC, upon Carina C’s objections. (1) The person responsible for removal costs under the above Act is the registered owner, even if the real owner was Lennart C. (2) Concerning the salvage cost, there is no provision making the

- 12 -

registered owner liable, and the real owner being shown to be Lennart C, Carina C is not li-able. (3) Regarding moving costs, Carina C has alleged that although Karlstad harbour is a public port, the vessel lay in private area where the municipality does not have a right of dis-position, as is supported by the Act’s preparatory works. The municipality has not shown its right of disposition to the area and has therefore not shown its right to move the vessel. The claim is dismissed, with (modified) costs. – Appeal withdrawn after settlement. 5.2. Water pollution 5.2.1. Water Pollution Charge Stockholm DC IV 31 July 2002 matter B 3326-01, Svea AC V 24 Sept. 2002 matter Ö 7872-02, SC 27 May 2003 matter Ö 4173-02, SC 11 May 2004 matter Ö 4173-02 (White Star) Monaco-owned M/T White Star was reported to have discharged oil in the Swedish Economic Zone (EEZ), for which Coastguards debited a water pollution charge. Appealing to Stockholm DC, its owners alleged, as far as of interest, that Sweden lacked jurisdiction. The discharge had been ascertained by observation from a reconnaissance plane without inspection or deten-tion of the vessel. Owners alleged that a physical inspection according to the Water Pollution Act (WPA) 6:2a revealing the existence of the requisites in the Act’s 8:6 and the Law of the Sea Convention (UNCLOS) were needed. The prosecutor: Coastguards’ authority follows from WPA. The Act’s 8:6 grants compulsive rights but does not require compulsion to have been exercised. Under UNCLOS art. 230 (1) only monetary penalties may be imposed on foreign vessels violating national pollution provisions in passage beyond the territorial sea. The Water Pollution Charge is such a monetary sanction, which is thus available to Coast-guards. – DC: The power to impose a water pollution charge is regulated in WPA. Its 2:2 provides a general prohibition against pollution through oil discharge from vessels within, inter alia, the Swedish EEZ. According to 8:1 a water pollution charge shall be exacted for “not inconsiderable” breach of duties stated in 2:2. For foreign vessels 6:2a sets out certain limits to inspections while 8:6(2) regulates under what conditions prohibitions or injunctions for securing evidence may be imposed on foreign vessels in Sweden’s EEZ. – AC. WPA 8:1&2 and 2:2 clarify that an administrative charge shall be exacted from the owner or opera-tor of vessels for not inconsiderable oil discharges in Sweden’s EEZ. The competent author-ities are Coastguards, and the right to appeal to the Courts does not make the charge a penal sanction. While Sweden has ratified UNCLOS, the Convention has not been incorporated as Swedish law. Neither the WPA nor general principles of international law exclude the right to impose a water pollution charge. Since, also, the provisions on inspection and other action against foreign vessels only imply limitations of investigation measures the AC, without go-ing into the conformity of the Swedish rules with the Convention, dismissed the appeal. – Appealed to SC. Shipowners have stated that a coastguard plane had called on the ship informing it that an oil hue was seen in its wake. Hosing down of the deck had been in pro-gress but was stopped, the master realising there might be traces of hydraulic oil on the deck. The hue behind the ship then disappeared. More than eight months afterwards, coastguards contacted the shipowners in Monaco, starting this action. SC, having granted leave to appeal. While the WPA has no express court jurisdiction rules for the water pollution charge, it is clear that the limitations in chapter 2 of the Penal Code do not apply and the WPA is intended to apply fully to vessels passing through the EEZ. The provisions on inspection and securing evidence concern only the right of such actions. In in-ternational law, Sweden’s dualistic application does not as a rule allow the court to directly apply an international convention, national rules having precedence, but Swedish law should still be interpreted in the light of the country’s international undertakings, and this is specif-ically provided in WPA chapter 1 section 5. The present question is internationally contenti-ous (citing authorities). The right of prohibiting oil discharges in the EEZ follows from UNCLOS art. 56 and 211.5. Art. 220 gives the coastal State the right of inspecting foreign

- 13 -

vessels and instituting proceedings, including retention, according to its laws. For measures in the EEZ, the discharge must have caused or been likely to cause considerable environmental damage (art. 220.5, 6). The “institution of proceedings” must be assumed to give the coastal State the right of forced measures in spite of restraints otherwise prescribed for vessels navig-ating in the territorial sea or EEZ. The provisions clearly apply to the right to take measures to secure evidence, and the taking of such measures cannot be understood as a prerequisite for taking other action. Nor can art. 228 on the flag State’s duty be read as excluding the coastal State’s jurisdiction. An application of the WPA’s environmental charge provisions is there–fore not contrary to international law even though measures were not taken against the vessels at the time of passage. Sweden has thus jurisdiction, and the appeal must fail. Stockholm DC VI 31 July 2002 matter B 3469-01, Svea AC (V) 24 Sept. 2002 matter Ö 7759-02 (Alambra), SC 11 May 2004 matter Ö 41548-02 Coastguards imposed a charge on Greek owners for oil spill in EEZ. – Owners: The charge was imposed after the ship had left the Swedish zone, which was ultra vires for Swedish auth-orities. UNCLOS art 220 (6) indicates under what conditions a coastal state may institute le-gal action against a vessel for discharge in the EEZ, i.e. (1) that the discharge has caused con-siderable damage or risk of such damage, (2) that there is clear objective evidence of the dis-charge from the vessel and (3) that the legal measures are taken while the vessel is proceeding through the coastal state’s economic zone or territorial sea. As these requirements have not been met, Coastguards lacked power to impose the charge. – Prosecutor: Coastguards are competent under the WPA. The Act’s 8:6 gives them compulsive power but does not require them to use it. Under UNCLOS art 230 (1) only economic sanctions may be imposed on a for-eign vessel for violation of national provisions outside the territorial sea. The water pollution charge is an economic sanction. – DC. Imposition of a water pollution charge is regulated in the WPA, whose 2:2 imposes a general prohibition while 8:6 (2) grants the power to impose a water pollution charge. For foreign vessels WPA 6:2a sets limits to inspection rights and 8:6 (2) to the right of taking action to secure evidence. Owners allege that there must have arisen considerable damage or risk of such damage and that there must be clear objective proof of discharge from a certain vessel. As observed, a water pollution charge shall be imposed when a not inconsiderable oil discharge has occurred in the EEZ. Insofar there is no special regu-lation for foreign vessels. The special rules for these concern the possibilities of taking action against the vessel, which in the Court’s view is in accordance with the provisions in UNCLOS art. 220 as they outline the situations in which inspection or action for securing evidence may be taken against a foreign vessel in the EEZ. They do not impose a requirement of action against a particular vessel as a condition for imposing a charge on the vessel’s owner. Nor is there ground for the allegation that the charge must be imposed while the ship is passing through the EEZ. Complaint denied. – AC affirmed on similar grounds to the White Star case above. – SC dismissed the appeal according to the White Star reasoning (above). Kalmar 27 May 2002 matter B 2244-01, Göta AC 22 Nov 2002 matter Ö 3086-02, SC 11 May 2004 matter Ö 542-03 Wind Spirit DC imposed pollution charge, affirmed by AC. – Appeal in both instances dismissed accord-ing to the White Star reasoning above. Comment to the three cases. The Supreme Court reasoning seems questionable in that it does not evaluate the chances of the passing vessel to appreciate the situation. Particularly in the White Star case, the owner was apprised as late as eight months after the incident of the charge imposed upon the ship, at which stage it must have been virtually hopeless for the ves-sel to disprove the Swedish coastguard's statements. Gothenburg DC 24 June 2004 Tanking diesel oil into a naval vessel was supervised by two persons, the electronic breaking device being out of order. Owing to disturbance by disembarking personnel and consequent

- 14 -

insufficient contact with the person at the filling tap, the flow was stopped too late and some oil came out through an air pipe filling up a bucket that was placed there for safety. The buck-et overflowed spilling about one litre onto the deck and into the water. Coastguards debited the Navy 19.300 SEK as water pollution charge. The Navy appealed to the DC, alleging (a) the discharge was accidental and immediately amended, (b) it was in any case inconsiderable and (c) the circumstances justified a complete remission. – The DC did not find the discharge accidental, as the damage to the overfilling breaker was not unknown, and since the liaison between the two persons managing the filling was deficient. While for such non-accidental pollution the State has the burden of showing that the quantity is inconsiderable in the sense of the Water Pollution Act (1980:424) one litre is undoubtedly so insignificant that it will not appreciably affect the environment. The repayment claim was admitted. – Non-appealable. Kalmar 27 Nov. 2003 matter B 578-03, Göta AC 17 Febr. 2005 matter B 3207-03 (Coral Isis) While proceeding in the Baltic Sea, the vessel’s crew pumped oil from one tank into another. Mistakenly, pumping was not stopped when the reception tank was full, and some oil ran out on deck but was later removed into a tank, although the master assumed some 50 litres might have escaped into the sea, which he reported to coastguards, No oil was however localised be-hind the vessel. A water pollution charge was imposed, and owners appealed to the DC. – DC found the suggested discharge of 100 litres was a mere guess, and the quantity, if any, was in–significant. Moreover, the officers had loyally reported the matter to coastguards who had all possibilities of verifying an oilspill. Imposing a charge under such conditions invites omission of notification. The charge was cancelled according to WPA 8:4. – The AC, stressing that no one on board had seen any oil in the water, affirmed. Kalmar 23 Dec. 2004 matter B 1956-02 Albakor In Malmö 3 June 2002 matter B 704-04 (2002) SwMarLaw 13, the second mate of Russian Albakor was sentenced to two months’ prison for running the vessel onto a shoal in an intox-icated condition. The vessel remained on the shoal for 1 ½ months leaking oil, estimated by coastguards and prosecutor to be between 49 and 69 metric tons, for which coastguards billed the owners an oil pollution charge of 421,448 SEK. Appealing to DC, owners claimed on the basis of coastguard photos that the spill could not exceed 18 litres. Furthermore, since the spill resulted from an accident, owners alleged they could not be liable at all. At the time of the trial, owners’ legal counsel withdrew, as he had lost contact with the owners. Based on available information the DC estimated the proven discharge to be not less than 17 tons, chargable under the list at 172,824 SEK, for which the owners were liable because of the aggravated circumstances of the grounding. – Non-appealable. 5.4.2. Criminal sanction for pollution None 5.4.3. Criminal liability for environment blockade Norrköping DC 27 June 2002 matter B 1521-02 (Fagervik), Göta AC 18 Nov. 2003 matter B 3522-02 Greenpeace launched a blockade on M/T Fagervik, ex Figaros, for an oil discharge for which the master and owners of the vessel had been acquitted by the DC. From their vessel Rainbow Warrior, they boarded Fagervik per rubber boats, clambering on board and spraying slogans along the ship’s side. Four youths of different nationalities were indicted for gross trespass, having entered the ship and chained themselves in her mast, and vessel owners claimed dam-ages for detention. Appealing against the DC sentence, but abstaining from the defence of justified emergency action, they alleged that their action had been neither concerted, nor un-authorised since they had not been hindered, and one of the accused argued that the police had actually dragged her on board. – AC noted that the action was planned, with use of several rubber boats, special equipment and communication, that the accused had boarded the vessel without invitation, and that the dragging on board of one of them was necessitated by her

- 15 -

hanging perilously from the ship’s rail. All had thus been trespassing. As the action had in-terfered with the vessel’s business for three days, the offence was gross, and damages were due. DC’s conditional sentence and awarded damages affirmed. – Appeal to SC pending. 6. Maritime Traffic 6.1. Right of using Water Areas Sundsvall 1 Nov. 2004 matter B 2584-03 Fredrik A had been caught in August 2003 conducting a ”jet-ski” (semi-submersible water-scooter) in a public fairway outside Sundsvall that was not at the time assigned for using such craft. He was aware that the area was not assigned for the purpose but considered the nearest such area to be unreasonably far away and that his driving did not cause any disturbance. – DC. Both at present and at the time of driving Fredrik A’s craft was a waterscooter covered by the Waterscooter Ordinance. At the time of driving the use of his waterscooter at the place in question prohibited by the Ordinance. However, the Ordinance has been amended with ef-fect from the 15th July 2004 to permit the use of any waterscooter in public fairways and cer-tain other areas. The place of driving is part of a public fairway the public fairway. The Coun-ty Administration has not according to section 3 of the Ordinance restricted the use of water-scooters in public fairways in the area. Although Fredrik A’s craft was a waterscooter that at the time might not be conducted in a public fairway, the accused may not, under to the prin-ciple of legality as expressed in section 5 of the promulgation Act to the Penal Code, be con-victed for an act that was not criminalised at the time of judgement. An exception for tempo-rary criminalisation due to special conditions is not applicable. Acquitted. – Non-appealable. Comment: Under the Public Fairways and Public Ports Act (1983:293) a public fairway is one established by decision of the Maritime Administration and entered into its list (SJÖFS 1988:5) of such fairways. The place of A’s driving is not specifically designated but is within the port fairway designated for the Public Port of Sundsvall. It seems questionable whether the decision is supportable on the cited ground. 6.2. Negligence in Sea Traffic 6.2.1. Grounding and collision Luleå DC 17 Jan. 2003 ND 2003 p. 6 (Laponia–Nordtrader) Passenger vessel Laponia av Seskarö on evening cruise from Luleå was proceeding inwards in fog, keeping its port side of the channel. Outward from Luleå came iron-loaded M/V Nord-trader. Seeing a meeting vessel on his radar screen, Nordtrader’s master gave five blasts on his whistle, which was heard on Laponia. Seeing Nordtrader 20° to starboard, Laponia veered port out of the channel; Nordtrader saw Laponia straight ahead and veered first starboard, then port, after seeing Laponias’s port turn. The vessels nearly collided. – DC. At the moment of collision risk, Laponia must have been proceeding in the channel. The port turn was then a fault, which very nearly caused a collision. The master had insufficient lookout and was not observant of his position in the channel. Sentenced to substantial fines. – Non-appealable. Nacka 24 March 2004 matter B 1720-03 Hampus F let his girlfriend Sofia W drive his runabout motorboat from a golf & country club in the archipelago. Two friends came in a RIB-boat some distance behind to starboard. Gustav H running at over 50 knots overtook the RIB on its port side and prepared to overtake F and W on their starboard side, when suddenly Sofia W upon a sign by Hampus F turned starboard across Gustav H’s way. Their boat was run over, Sofia W being killed and Hampus F injured. It was shown that Sofia W had a blood alcohol content of over 2°/oo, Hampus F had 1.4 °/oo , and Gustav H had 0.16 °/oo . Gustav H was indicted for negligence in sea traffic and man-slaughter, and Sofia Ws parents claimed damages. – DC. Gustav H has caused the accident

- 16 -

by overtaking at too high speed and must be sentenced for negligence in sea traffic and man-slaughter. His blood alcohol content has been too low to affect his ability to drive his boat, and his negligence was not gross. Conditional sentence with 100 hours’ community service. As Sofia W was considerably intoxicated and turned starboard without checking what was be-hind her, she is considered 2/3 at fault, and the damages were set down to 1/3. – Appealed to Svea AC as matter B 3397-04. Judgement pending 21 April 2005. Mora DC 25 March 2003 matter B 1384-04, Svea AC 22 June 2004 matter B 3224-03 Mats P had been conducting his inboarder cabin boat near Nusnäs on the lake of Siljan at a speed of 22 knots and having at the time a blood alcohol concentration of at least 2.32 °/oo . He hit a rowboat in which Lennart E was killed by head injuries and drowning. Indicted for gross marine intoxication, gross negligence in sea traffic and manslaughter Mats P admitted the facts but left the decision of the gravity to the court’s decision. He had drunk a consider-able amount of alcohol but did not feel intoxicated. He had misnavigated and was looking at a chart, when he suddenly saw the rowboat in front of him. He tried to steer off, but too late. He backed up to the other boat and saw a man lying lifeless in it. He was shocked, and neither he nor his friends went into the smaller boat to check the condition of the man on board. Another boater soon came out and informed them that the man in the rowboat was dead; he also called the police who arrived soon after. – The DC found that Mats P’s blood alcohol concentration alone made the offence gross. In addition, the size, weight and engine capacity of Mats P’s boat and his duty as its driver made intoxication a tangible safety danger. Mats P has shown bad seamanship in driving the boat at high speed in an intoxicated state and without proper observation of the water in front of him, all of which renders his negligence gross. The same applies to his intoxication and to the charge of manslaughter. The DC determined the sanction as one year’s prison. On appeal, Mats P demanded a conditional sentence. – The AC, while recognising that a prison sentence would hinder Mats P in his business, affirmed the sentence. – Non-appealable. Gothenburg 15 April 2004 B 12538-03, West Sweden AC 121 Aug. 2004 matter B 2586-04 Chemical tanker sailed in inshore zone instead of traffic separation zone. The skipper objected that he had been negotiating with the authorities. Sentenced to fines. – Leave to appeal de-nied. Non-appealable. Further under Traffic separation 6.1.3. Malmö DC (Maritime Court) 30 Nov. 2000 matter B 1462-00, AC Skåne/Blekinge 18 Sept. 2001 matter B 30-01, new trial ordered SC 12 June 2002 matter Ö 3866-01, retrial Skåne/Blekinge AC 30 Jan. 2004 DB 1016 matter B 2628-02 (Hyphestos) See under 3.6 Pilot’s liability. SC 16 Dec. 2004 matter B 264-04 affirming Svea AC 12 Dec. 2003 matter B 9881-02, affirming Stockholm DC XII 16 Oct. 2002 matter B 5027-00 In morning dusk, L in his runabout with three passengers had been entering Stockholm har-bour from the east while V with one passenger in his heavy Croupier had been exiting. Just outside the speed limited area, V had turned to port across L’s way, which had caused L to run into the crossing boat, two of L’s passengers being killed and another passenger and L himself getting injured. The AC majority, noting that both had high speed, V was on the wrong side of mid-channel or crossing the channel, while L had a blood alcohol concentration of 0.82 °/oo and failed to note V until the last seconds, found both liable for negligence at sea, manslaughter, causation of bodily harm and marine intoxication and jointly and severally li–able for damages to the deceaseds’ estates. The court’s marine expert dissented. V’s port light had been extinguished, and his white light might easily be mistaken for a land light or could have seemed to move in a direction not indicating collision risk, while L had been on his pro-per side of the channel and had not been charged with failure of anything other than diminish-ing speed, which he tried to do. V alone should therefore be liable for negligence at sea, caus-ation of death and damages therefor, while both were liable for marine intoxication. – SC maj-

- 17 -

ority (3-2). It was possible to see 100-150 metres without lights. V turned to port only when collision was inevitable, so the sudden turn could not surprise L, who drove too fast to be able to stop his boat or turn to avoid the collision. L has therefore broken against COLREG rule 5 of lookout in relation to his speed. The judgement is affirmed. Minority: V was crossing L’s course on L’s proper side of the channel, and the turn may have been so sudden that L cannot be blamed for failure to avoid the collision. Acquitted for negligence in sea traffic, man-slaughter and causing bodily harm. – L has applied for reopening for procedural errors in SC. Luleå MC 26 Nov. 2004 matter A 2711-04 (Casino Express) Maritime declaration concerning a ferry grounding in hard weather outside Umeå. 6.2.2. Speeding Nacka 24 March 2004 matter B 1720-03 Overtaking at close quarters at 51 knots, see under 6.1.1. Grounding and collision Nacka 2 Sept. 2003 matter B 5-03, Svea AC 9 Dec. 2003 matter B 2433-02, and Nacka 16 Sept. 2003 matter B 2433-02, see below under 6.2.3. Gross marine intoxication Stockholm 13 Oct. 2004 matter B 2734-04, Svea AC 9 Dec. 2004 matter B 8760-04, SC 2 March 2005 matter Ö 456-05, below under 6,2.3. Gross maine intoxication 6.2.3. Traffic separation Gothenburg 15 April 2004 matter B 12538-03, West Sweden AC 12 Aug. 2004 matter B 2586-04 (Margita) While Robert Q was conducting a chemical tanker eastwards between the islands of Guernsey and Alderney in the English Channel he asked the French traffic surveillance at Jobourg whether he might proceed through Alderney Race, which is in the inshore traffic zone out of the traffic separation zone. He understood the answer as permissive and reported back when he had reached a prescribed reporting area. He was then informed that he might not conduct the vessel through the inshore traffic zone and engaged in a conversation of over an hour, ending with an instruction that he must turn the vessel round to pass outside the inshore traffic zone. After replying that it was too late, as he had already passed most of the inshore traffic zone, he continued. – The DC pointed out that under COLREG rule 10 d a vessel may not use the inshore traffic zone if it can safely use an adjoining traffic separation zone. According to Chapt. 5 sect 1 of the Sea Traffic Ordinance (1986:300) a master who intentionally or negli-gently omits to follow the provisions on traffic separation shall be sentenced to fines. Robert Q was so sentenced. – Leave to appeal denied. Non-appealable. 6.2.4. Other negligence in sea traffic Stockholm 16 April 2004 matter B 9397-03 (Singö) G conducted passenger M/V Singö into Stockholm obliquely to the landing pier, a springline from the bow to a ring on the pier and the propeller pressing the vessel towards the pier, using no gangway for the passengers. Waves at the landing place caused Ingrid P to lose her balance and get her ankle joint crushed between the boat and the pier. Indicted for negligence in sea traffic and causation of bodily harm, G objected, supported by witnesses, that the manner of landing was normal, that a gangway was never used or considered necessary and that a crew member had been appointed to assist the passengers. – Aquitted. – Non-appealable. Nacka 1 Oct. 2003 matter B 1115-03, Svea AC 9 Dec. 2003 matter B 7913-03, SC 18 Febr. 2004 matter Ö 104-04 Coming from a well-known golf & country club in the archipelago, Renato M was seen speeding through Kolström passage, overtaking other boats. Coastguards took up pursuit, clocking the boat’s speed to 38 knots in the 8-knot area. M said he had been overtaken by another boat and had not exceeded the limit except possibly at the very end of the limited area. The DC remarked that the incident occurred in a narrow channel and, even accepting M’s speed as only 30 knots, this was too fast for safety and justified a sentence of negligence in sea traffic. – Leave to appeal denied by AC and SC.

- 18 -

Comment. While breach of speed limits and the Maritime Traffic Ordinance are punishable by monetary fine (“fine”), speeding amounting to dangerous negligence under MC 20:2 is punishable by day fines (“fines”). Nacka 27 Aug. 2003 matter B 1048-03, Nacka 2 Sept. 2003 matter B 5-03, Nacka 16 Sept. 2003 matter B 2433-02 and Nacka 27 Aug. 2003 matter B 1048-03 See under 6.2.3. Gross marine intoxication Nacka 3 Nov. 2004 matter B 2157-04 Patrik C, punished for several acts of violence, had been with two girls T and O at Sandhamn inn. Leaving for C’s summer house in C’s motorboat, they had agreed that T should drive C’s boat as C was obviously drunk. As T kept the speed limit, C told her to drive faster and then, forcibly taking over the steering, gave full throttle making straight for the rocks of a nearby island. T managed to grip the wheel and steer the boat off from the rock, but C continued driving until the girls got hold of the keys and could stop the boat. C then pressed T against the railing until she fell into the water with bruises. O jumped after her, and both girls swam ashore. – DC, finding the girls’ testimonies to be trustworthy, sentenced Patrik C for assault, negligence in sea traffic and marine intoxication to one month’s prison. – Non-appelable. 6.2.5. Sailing prohibition Sundsvall 1 Nov. 2004 matter B 2584-03 Fredrik A had been caught in August 2003 conducting a ”jet-ski” (semi-submersible water-scooter) in a public fairway outside Sundsvall that was not assigned for using such craft. He was aware that the area was not assigned for such use but considered the nearest such area to be unreasonably far away and that his driving did not cause any disturbance. – DC. Both at present and at the time of driving Fredrik A’s craft was a waterscooter according to the wa-terscooter Ordinance. At the period the use of a waterscooter at the place in question was covered by the prohibition in the Ordinance. However, the Ordinance has been amended with effect from the 15th July 2004 to permit waterscooter use in public fairways and certain other areas. The County Administration has not, as possible according to section 3 of the Act, re-stricted the use of waterscooters in public fairways. Although Fredrik A’s craft was a water-scooter that at the time might not be conducted in a public fairway, the accused may not, un-der to the principle of legality as expressed in section 5 of the promulgation Act to the Penal Code, be convicted for an action that was not criminalised at the time of judgement. An ex-ception for temporary criminalisation due to special conditions is not applicable. Acquitted. – Non-appealable. 6.3. Marine intoxication NB. Ordinary marine intoxication according to MC 20:4, not causing tangible danger of concrete damage, is normally punished by fines. Gross marine intoxication, rendering in principle an obligatory prison sentence, is presumed at a measured blood alcohol content of 1 per thousand (1 °/oo, one promille), corresponding to 1/2 milligram measured per litre exhal-ation air (0.5 mg/l). 6.3.1. Acquittals Malmö 18 March 2004 matter B 3458-03 matter B 3458-03(Ankobia) Bo S was indicted for gross marine intoxication, having left Helsingborg in his ship-size motor yacht (more than 12 metres length and more than 4 metres breadth) which he was the only person on board formally qualified to conduct, and having left over command of the ves-sel to his formally unqualified friend Ove B, whereupon coastguards found the vessel to be clumsily conducted and checked Bo S for a blood alcohol concentration found to be 1.62 °/oo. In court Bo S stated having known Ove B to be thoroughly experienced and expected him to have the formal qualification to conduct the boat, and the court accepted Ove B’s testimony of having those qualifications. – Accepting Ove B’s testimony, the DC concluded that having duly delivered command to Ove B, Bo S was acquitted.

- 19 -

Comment. In ND 1991 p. 54, the SC accepted a boat owner’s handing over command of his boat – for which no formal qualification was prescribed – after instructing the other how to handle it. It seems dubious of the court to allow a ship owner’s mere belief in the other’s qualification to relieve the owner from his responsibility as master. Nacka 18 June 2003 matter B 602-03, Svea AC 4 Jan. 2005 matter B 5709-03, SC 8 April 2005 matter B 569-05 Robert K’s allegation of “after drinking” to explain his 1.12 °/oo blood alcohol was accepted by the DC but partly rejected by the AC, see under Ordinary marine intoxication below. – SC denied leave to appeal. Nacka 10 Nov. 2004 matter B 354-04 Returning to the archipelago after a trip to Stockholm, Mikko L and his wife had been drink-ing beer and wine. Stopping the boat to urinate he fell into the water and had to be helped on board by passing boaters, who prevented him from driving on, secured his boat keys and towed his boat to Grinda. Heard by the police he first said he had conducted the boat all the way. In court he changed his story, now saying that his wife had conducted the boat after he had begun to feel affected. He said the different version to the police was to protect his wife. Mikko L was found to have an alcohol blood concentration of 2.34 °/oo. The court found that since no witness had seen Mikko L drive his boat and his statement that his wife had taken over had not been disproved, he must be acquitted. – Non-appealable. 6.3.2. Ordinary marine intoxication Nacka 25 Febr. 2002 matter B 2425-03 Daniel J had been drinking with friends in his Pettersson wooden motorboat and, knowing himself to be drunk, had been forced to move the boat because of a change of wind. He was found drifting in the middle of the nearby channel and on being accosted by coastguards had them land the boat. He was found to have 0.56 °/oo blood alcohol. – The DC, remarking that the borderline to gross marine intoxication is at 0.5 °/oo (must be miswriting for 1°/oo) sen-tenced him to rather high fines for ordinary marine intoxication. – Non-appealable. Nacka 13 April 2004 matter B 424-04 Coming from a well-known golf & country club in the Stockholm archipelago, Niclas B was caught for driving his Sea-Ray motorboat at 32 knots in a 5-knot passage. Checked for alco-hol he was found to have an exhalation alcohol content of 0.40 mg/litre (0.8 °/oo blood alco-hol). He pleaded that he was freshly in love and on his way to see his girlfriend. – Paying no heed to his explanation, the DC sentenced him to rather high fines. – Non-appealable. Nacka 13 April matter B 530-04 Peter B had been visiting friends and had drunk some alcohol. On the way home he landed at a pier. He alleges having drunk alcohol on the pier and seeing himself called upon by a coast-guard boat had driven out there. Tested for alcohol he showed an alcohol exhalation concent-ration of 0.49 mg/litre (0.98 °/oo blood alcohol). The coastguards found him to be drunk and unsure of his position and also said that the weather conditions required sobriety. The DC sentenced him to rather high fines. – Non-appealable. Nacka 18 June 2003 matter B 602-03, Svea AC4 Jan. 2005 matter B 5709-03, SC 8 April 2005 matter B 569-05 Having left a well-known golf & country club late in the morning Robert K was caught in a police control where he had been found to steer unsteadily. Coming on board, the police offi-cer noted that Robert K was drunk and could not speak clearly and walk steadily. While the policeman took the boat ashore, K and his friend entered the cabin, where K claims to have drunk gin from a bottle. K was found to have 0.66 mg/litre exhalation air (1.12 °/oo blood alcohol). He was indicted for ordinary marine intoxication. The court held that K’s allegation of having drunk alcohol after his driving had not been disproved and must be accepted. K’s manner of conducting the boat did not sufficiently show inability to perform his functions

- 20 -

safely. Charge dismissed. – AC. There was no reason to doubt the police officer’s testimony of K’s signs of intoxication on being apprehended, and as according to K the boat was diffi-cult to steer at low speed and was steered through a very narrow channel, K’s conducting the boat under such influence was unsafe. On the other hand K’s allegation of “after drinking” de-serves credence to the extent that he may have had under 1°/oo when driving the boat, so the conviction is to fines for ordinary marine intoxication. Two judges dissented, affirming the DC acquittal. – SC denied leave to appeal. Stockholm 13 Oct. 2004 matter B 2734-04, Svea AC 9 Dec. 2004 matter B 8760-04, SC 2 March 2005 matter Ö 456-05 Michael L conducted a RIB-boat from Vaxholm into Stockholm harbour and was clocked by coastguards in the harbour at 40 knots where the speed limit is 7 knots. On the quay he was tested to have an exhalation alcohol content of 0.47 mg/litre air (0.94 °/oo blood alcohol). He said his companion had been conducting the boat, but the coastguards testified having particu-larly observed that the driver never changed his place in the boat. Sentenced to high fines for marine intoxication and speeding. – Appeal denied by AC and SC. Nacka 24 March 2004 matter B 1720-03 Effect on liability for contributory fault, see 6.1.1. Grounding and collision. 6.3.3. Gross marine intoxication (presumed at above 1 °/00 blood alcohol) Stockholm 9 Jan. 2004 matter B 7429-02, Svea AC 26 March 2004 matter B 981-03. Coastguards had noted a motorboat being conducted clearly too fast and sheering irregularly in a Stockholm canal. When they decided to stop the boat they saw the two on board changing at the wheel and the previous driver throwing himself into the cabin. This turned out to be J, and he was found to have a breath alcohol concentration of 0.73 mg/litre (1.46 °/oo blood alco-hol). The two motorboaters testified having been in the same place all the time and having had similar clothing. In spite of the coastguards’ unanimous testimony the DC found there was room for a mistake and acquitted J. – On appeal by the prosecutor the coastguards added to their testimony that the boat had been conducted at 14 knots through the canal and that they had both seen the two men changing places in the light of their searchlight. – Svea AC, 26 March 2004 matter B 981-03, found no likelihood for the coastguards both having been mis-taken and sentenced J to one month’s prison for gross marine intoxication. – Appealed to SC, matter B 1857-04, recalled. Falun DC 28 Jan. 2004 matter B 2661-03, Svea AC 4 Jan. 2005 matter B 1647-04, SC 22 March 2005 matter B 553-05 K had been driving his 22-foot motorboat into a marina in the lake of Runn at a speed that raised wake in the marina and caused a woman to fall out of her berth. K was shown to have a blood alcohol concentration of 2.16 °/oo but stated that this must be from wine and spirits which he drank afterwards. In view of other testimony and the high alcohol blood value the DC rejected the assertion of “after-drinking” and sentenced K to conditional sentence plus 50 hours’ community service. – Affirmed by AC, leave to SC denied. Västmanland 7 Febr. 2003 matter B 4549-02, Svea AC 30 April 2004, matter B 1865-03 Boje A had decided to go to a boat club on an island to apply for membership. In the club he drank a bottle and a half of homemade wine. When it was clarified that he was not welcome as a member he decided to leave, but his propeller stuck in some buoy lines, whereupon his boat veered sharp starboard and nearly collided with another with children on board. He was shown to have a blood alcohol concentration of at least 0.5 °/oo. Considering whether his in-toxication was gross (which normally requires 1 °/oo) the DC cited the preparatory works in-dicating that culpable affection includes consumption before conducting the boat leading to punishable alcohol concentration during the trip and also that Boje A’s handling of his boat involved tangible danger to safety at sea. Conditional sentence plus fines. – Appeal recalled.

- 21 -

Nacka 18 Febr. 2004 matter B 2653-03 Rikard H had been eating and drinking at a well-known golf & country club in the Stockholm archipelago. He was caught speeding at 20 knots in a 5-knot area, failed to see the coast-guards’ bluelight and stop signs and had difficulty boarding the coastguard boat, nearly falling overboard in the process. He was shown to have an alcohol concentration of 0.69 mg/litre ex-halation air (1.38 °/oo blood alcohol) and was given a conditional sentence combined with 50 hours' community service. – Non-appelable. Nacka 16 March 2004 matter B 2559-03 Peter L had been participating in a fishing contest, drinking some beer awhile. On the way back he stopped at Sandhamn for lunch with beer and coffee with a whiskey or cognac. He was caught doing around 40 knots and had difficulty boarding the coastguard boat. He was found to have a blood alcohol concentration of 2.26 °/oo. – DC. Conditional sentence and high fines. – Non-appealable. Nacka 16 March 2004 matter B 55-04 Lukas F had been caught in a speed control conducting his motorboat at 20 knots in the 5-knot passage into Sandhamn harbour. He was found to be drunk, unsteady, smelled of alcohol and had an exhalation air content of 0.71 mg/litre (1.42 °/oo blood alcohol). He was sentenced to fifty hours’ community service. – Non-appealable. Stockholm 18 March 2003 matter B 8045-02, Svea AC 14 April 2004 matter B 2990-03 Bo W, professing to be an experienced boat driver, was seen conducting his 260 hp Chris-Craft motorboat erratically through Stockholm harbour on the 700-year celebration day of Stockholm City, with much traffic around. He was clocked at 17 knots in a 7-knot speed limit area, and he was shown to have an exhalation alcohol concentration of at least 1.03 mg/litre (over 2 °/oo blood alcohol). The DC pointed out that for marine intoxication court practice must be adjusted to varying conditions but that the circumstances of the present case involved tangible danger to marine safety and that the sanction could only be unconditional prison, here one month. – The AC affirmed. – Non-appealable. Nacka 31 March 2004 matter B 352-04 Joakim R had been conducting his motorboat from a well-known golf & country club in the Stockholm archipelago and was caught speeding at 19 knots through the narrow 5-knot limit-ed Skuru strait. He did not notice the coastguard’s blue flashlight until hailed at close quarters and needed help to board it and seemed obviously drunk. He was shown to have an exhalation alcohol concentration of 0.88 mg/litre (1.76 °/oo blood alcohol) and was indicted for gross ma-rine intoxication. – He was sentenced to 50 hours’ community service. – Non-appealable. Mora DC 25 March 2003 matter B 1384-04, Svea AC 22 June 2004 matter B 3224-03 See under 6.1.1. Grounding and collision Tierp DC 20 April 2004 matter B 160-04, Svea AC6 July 2004 Lennart T, after drinking wine and strong beer, left with his Nauticat 38 motorsailer from Grisslehamn towards Gävle with his two small children on board. Other boaters noted the boat’s unsteady course and called the police. Lennart T was found to have an exhalation alcohol content of 1.28 mg/litre air (about 2.56 °/oo blood alcohol) and, considering the high alcohol concentration, the boat’s size and weight and the two children on board and the un-steady conduct of the boat, he was sentenced to 1 months’ unconditional prison. – Appeal recalled. Nacka 21 April 2004 matter B 360-04 Carl-Fredrik K drove his boat from a well-known golf & country club in the Stockholm ar-chipelago at a speed of some 20-25 knots and after about 100 metres handed over the wheel to his girlfriend, who was killed when being run over by an overtaking boat (Nacka 24 March 2004 matter B 1720-03). Having shown an alcohol blood concentration of 1.13 °/oo he was

- 22 -

indicted for the short drive before handing over and given a conditional sentence and rather high fines. – Non-appealable. Nacka 4 May 2004 matter B 353-04 Driving from a well-known golf & country club, Fredrik A was stopped for exceeding the speed limit in a strait. He was shown to have an exhalation alcohol content of 0.71 mg/litre (1.42 °/oo) but could handle the boat. Sentenced to 50 hours’ community service.- Non-ap-pealable. Nacka 5 May 2004 matter B 197-04 Coming from a well-known golf & country club, Jörgen H was stopped in a police control having clearly exceeded the speed limit and having obvious difficulty landing his boat. Hav-ing measured 1.02 °/oo blood alcohol he was given a conditional sentence plus moderate fines. – Non-appealable. Kalmar 17 May 2004 matter B 787-04 LBB–1124 Conducting a Lithuanian trawler in Saltö fishing harbour in south-east Sweden Jonas M failed to dock his ship an to a sister ship, whereupon his vessel drifted on to three pleasure boats and then rammed a fourth. After getting his vessel moored, Jonas M claims to have drunk 50 cen-tilitres of alcohol to steady his nerves – which he later changed into 16 centilitres – but was later measured to have an alcohol breath concentration of 1.01 mg/litre exhalation air (2.02°/oo

blood alcohol). The DC, remarking that Jonas M had repeatedly changed his statements on alcohol intake, found his statements to have been untrustworthy and considered the statement of “after drinking” to be unlikely. M was sentenced to two months’ prison. To compensation claims by owners and insurers of the damaged pleasure boats Jonas M alleged that only his employer would be responsible, but the DC remarked that the MC operator liability did not prevent personal liability for damage caused by a criminal act. – Non-appealable. Nacka 25 May 2004 matter B 351-04 Driving a boat at 25 knots in an 8-knot limited area with an alcohol exhalation content of 0.6 mg/litre rendered a conditional sentence plus moderate fines. – Non-appealable. Nacka 16 June 2004 matter B 186-04 Tommy L had been eating and drinking and started for home with a friend in his father’s boat. According to his own statement he did not feel drunk, conducting his boat slowly through the narrow Lökholmen passage and then speeding up at the narrow west strait. On his friend alert-ing him that a police boat was trying to stop them, he shut down his engine immediately. He had been conducting the boat without difficulty but became nervous when the police asked for identification papers. The friend testified having noted that Tommy was somewhat affected by alcohol, that he was impatient and had to be told to keep his speed down, and that he behaved irrationally on being interrogated. According to the police Tommy had failed to see their blue flashlight until the friend had tapped his shoulder several times, had been unable to produce his identity card and had been clearly drunk. He was found to have 0.77 mg/litre exhalation alcohol (1.44 °/oo blood alcohol). – DC. T has confessed to speeding but denied gross marine intoxication, as he considered himself to have conducted the boat without failure apart from the speed. – DC. Tommy L’s high alcohol concentration and his uncontrolled behaviour be-fore the police shows such intoxication that he could not duly fulfil his duties. Considering the high alcohol readings the offense is gross. Conditional sentence and 50 hours’ community ser-vice. – Non-appealable. Nacka 1 Sept. 2004 matter B 33-04 Conducting a boat at 24 knots in an 8-knot speed limited area with an alcohol exhalation concentration of 0.76 mg/litre (1.52°/oo) rendered conditional sentence and 50 hours’ com-munity service. – Non-appealable.

- 23 -

Nacka 2 Sept. 2003 matter B 5-03, Svea AC 9 Dec. 2003 matter B 2433-02 Returning from a well-known golf- & country club in the archipelago, Peter N had overtaken other boats at 30 knots where the speed limit was 8 knots. Tested for alcohol he showed an air concentration of 0.54 mg/litre (1.8 °/oo). Although no incident had occurred, the DC found N had shown lack of judgement, indicating unsafe driving. Conditional sentence plus fines for gross marine intoxication. – Appeal recalled. Nacka 8 Sept. 2004 matter B 952-04 Fredrik H was caught by coastguards in the Skuru strait speeding at 20 knots where the limit is 5 knots. He had difficulty manoeuvring his boat to the coastguard boat. H claims having been asleep in his boat until, on being woken up by the sudden noise he came out and took the helm. A coastguard testified having kept looking at H through her binoculars and seeing that no one had changed at the helm. – Being found to have 0.79 mg/litre exhalation alcohol con-centration (1.58 °/oo), H was sentenced to 50 hours’ community service for gross marine in-toxication, the court remarking that the scope for consideration of personal circumstances is greater for boating than for car driving. – Non-appealable. Nacka 16 Sept. 2003 matter B 2433-02, Svea AC 21 Dec. 2004 matter 7426-03, SC 22 Feb. 2005 matter B 434-05. Returning at night from a well-known golf & country club, Matti K had driven his 900 hp motorboat through the narrow passage of Kolström at a laser measured speed of 41 knots, had failed to stop at a clearly marked and lit coastguard boat and had then proceeded on the wrong side of a sea mark into a wider channel at a speed much exceeding the coastguard boat’s 52 knots. When K could finally be stopped he was found to have an exhalation alcohol concent-ration of 0.6 mg/litre (1.2 °/oo blood alcohol). DC, remarking that K’s driving was manifestly dangerous and indefensible, sentenced K for gross marine intoxication to one month’s uncon-ditional prison. – Affirmed by AC. – SC denied leave to appeal. Nacka 13 Oct. 2004 matter B 1544-04 Kennet O was found in his Targa 37 in darkness in the narrow passage from Sandhamn, un-steadily trying to steer the boat with its bow thrusters. The police boarded the boat and found Kennet O to be clearly drunk and wine glasses standing around. Kennet O was found to have an exhalation air alcohol content of 0.78 mg/litre (1.56 °/oo blood alcohol) – DC found Kennet O guilty of gross marine intoxication, but considering the low speed, sparse traffic and the ac-cused’s not being previously punished, gave a conditional sentence combined with rather high fines. – Non-appealable. Nacka 3 Nov. 2004 matter B 215-04 Jailbird Patrik C had been with two girls, T and O, at Sandhamn inn. Leaving for C’s summer house in C’s motorboat, T was driving as agreed, since C was obviously drunk. As T kept the speed limit, C told her to drive faster and then, forcibly taking over the steering, gave full throttle straight towards a nearby rock. T managed to grip the wheel and steer the boat off, and the girls finally got hold of the keys and could stop the boat. C then pressed T against the railing until she fell into the water with bruises. O jumped into the water, and both girls swam ashore. – The DC, finding the girls’ testimonies trustworthy, sentenced Patrik C for assault, negligence in sea traffic and marine intoxication to one month’s prison. – Non-appealable. South Roslag 29 Oct 2003 matter B 3128-03, Svea AC 4 Jan. 2005 matter B 8721-03, SC 22 March 2005 matter B 552-05 Distracted by a call in his mobile phone, S passed on the wrong side of a marker and ground-ed. Heartbroken by seeing the propeller and drive destroyed, he drank beer and whisky. After some time a boat towed him off but he let go of the towrope intending to paddle ashore. Not finding a paddle he resumed drinking. Coastguards and police finally found him drifting and measured 0.87 mg/ litre exhalation air (1.74 °/oo blood alcohol). The DC remarked that a skip-per’s responsibility for conducting the boat does not cease when he runs aground but remains

- 24 -

on the shoal as well as while being towed and drifting. S was condemned to a conditional sentence plus 50 hours’ community service, corresponding to 1 month’s prison. – AC af-firmed, remarking that nothing indicated that S had delivered full responsibility for the con-duct of his boat to the towing boat. – SC denied leave to appeal. Stockholm 3 Nov. 2003 matter B 5390-03, Svea AC 20 Jan. 2004 matter B 89118-03 Johan B had conducted a wooden motorboat in a Stockholm channel with a blood alcohol concentration of 0.81 mg/litre (1.62 °/oo), indicating inability to conduct the boat safely and being a tangible risk to marine safety. He alleged that some unnamed friends on board had taken turns at steering the boat and had hit a seamark, whereupon he himself had taken the boat ashore and gone to sleep after half a bottle of rum. A witness testified having been nearly hit by the boat, which had only the driver on board. Rejecting the accused’s stories of other drivers and after-drinking, DC imposed a conditional sentence and fines. – Appeal withdrawn. Nacka 17 Nov. 2004 matter B 778-04 Fredrik T had been driving a waterscooter (PWC) at high speed in the Sandhamn harbour, ov–ertaking other boats and zigzagging across the strait, all with an alcohol blood concentration of 1.90°/oo. Being also indicted for drunken car driving, he was sentenced to probation with special treatment for alcohol problem. – Non-appealable. Malmö 22 Dec. 2004 matter B 8501-04 Johan L, 21, had wrongfully borrowed another’s fishing boat and had conducted it in a state of at least 1.93 °/oo blood alcohol. When landing had hit and damaged another boat. He was sentenced to probation with special treatment for alcohol problem. Gothenburg 19 December 2003 matter B 7526-03, W Sweden AC 20 April 2004 matter B 1205-04, SC 17 June 2004 matter 2198-04 (Rondane) The master of a Gibraltar registered bulkloader had landed his vessel at Slite on Gotland in such clumsy manner that the bow was deformed. He said the rudder and engine did not re-spond properly when he was manoeuvring to the quay. A workman from the port noted five minutes after the landing that the master smelled of alcohol. On being tested, the master was found to have 3.24 °/oo blood alcohol. The DC held that even if his allegation of defective gear was accepted and if – as also alleged – he had drunk two export beers after landing, the alco-hol concentration was such that he must have been affected. The master had had alcohol prob-lems for a number of years and was sentenced to two months’ prison and two years’ loss of his right to command vessels. – Affirmed by West Sweden AC. – Leave to SC denied. 7. Salvage and rescue 7.2. Marine finds and wrecks Hässleholm DC 17 March 2003 matter FT 1706-02, Skåne & Blekinge AC 20 Nov 2003 DFT 3277 matter FT 859-03, SC 27 Jan. 2004, matter T 5041-03 Under the Lost Property Act (1938:121) objects found must be reported to the police and after three months fall to the finder without any advertisement procedure if unclaimed by an owner. Under the Sea Finds Act (1918:163) finds salvaged at sea or in navigable waters must be re-ported to police, coastguards or customs, advertised in Notices to Mariners and only then fall to the salvor, normally after 90 days without being claimed by the owner. N found a small outboarder drifting in Finja Lake by Hässleholm and reported the find to the police, who after three months without advertisement delivered it back to the finder. B, the original boat owner, sued N claiming delivery of the boat or its value. – The DC held that ”navigable waters” were such as were navigable for merchant vessels. The Lost Property Act therefore applied, and N was awarded the boat. – AC found that the Finja Lake was large enough to be navigable both to pleasure craft and commercial craft. The Sea Finds Act should therefore have been applied, and the boat was restored to B. – The SC denied leave to appeal.

- 25 -

Comment; In Tiberg Båtjuridik (Boating Law) it is recommended that the question should be determined by the accessibility of the water from the sea for the vessel in question. No ratio-nale can be seen for AC’s judgement, and the matter must be regarded as still unsettled. Gävle 7 November 2003 matter T 897-99 Jönköping Swedish two-mast schooner Jönköping loaded with champagne and cognac was sunk by a German submarine off Finland in 1916. By research, Peter L localised the vessel and in part-nership with Claes B chartered a vessel and set off to salvage ship or cargo. Certain antago-nism with the vessel’s owners was settled by the partners agreeing to pay an amount to them. A dispute arose concerning the validity and construction of the agreement. The case was re-ferred to Gävle DC, after a dispute on the court’s jurisdiction since some issues were subject to the Maritime courts (see further 11.1. below). At trial, the court found that the partners were not unduly pressed by the presence of another ship threatening to take over, and that the economical pressure of a high daily rent was no reason for modifying the contract. The court also found that there had been a valid oral side agreement of extra payment in addition to the contract. Neither the Contracts Act section 36 nor MC 16:3 paragraph 3 justified modifica-tion. – Appeal pending. 8. General and Particular Average 8.1. Costs of particular average Average Adjuster 25 Oct 2004, PA 3072 , Gothenburg 26 Jan. 2005 matter T 11867-04 An assured having appealed against a DC reference of his claim to the Adjuster, then been referred again by the AC to the adjuster, the AC left it to the Adjuster to determine costs at the DC and AC. The Adjuster pointed out that Adjustment costs, except in special cases, are paid by the insurer even if he wins, and that the same should apply to the pre-adjustment procedure costs at the DC and AC. – Non-appealable. 8.2. Other particular average matters See cases below under 10. Marine Insurance. 9. Limitation of Liability 9.1. Limitation Fund Stockholm 25 Feb 2003 matter Ä 3065-03, Svea AC 16 and 26 June 2003 matter ÖÄ 2155-03 (ASSI Eurolink) The case, reported in last year’s issue, is now published in ND 2003 p. 40 10. Marine Insurance 10.1 Hull Insurance Average Adjuster’s Particular Average Opinion 8 Dec. 2004 no. 3074 (Stena Lynx III) A high-speed catamaran ferry’s two outer engines developed damage due to loosened bolts securing the crankcase to the bedplate. The damage had developed during a period of time during which the vessel had been insured with various underwriters and first on the Swedish Hull Conditions of 1987 as amended 1994, then on the 2000 Conditions, and the question was division of the liabilities among the insurers. The Adjuster decided that the damage should be prorated during the period that it must have developed. Average Adjuster’s Arbitration according to PA procedure 7 Jan. 2004 no. 3067 A small service company operated a catamaran with a 50 hp outboard engine for small trans-ports in the archipelago. On one such transport the engine failed and had to be replaced. The company owner later found that it was all rusty inside, which in his submission could only depend on entry of salt water, which in turn must come from the engine having been drenched during the transport. The Adjuster noted that the insurance was an all risks insurance except for machinery, for which it only covered stranding, collision, capsizing, sinking or fire, ex-

- 26 -

plosion and thunder. The assured has the burden of showing an assured loss. Even accepting that seawater had come into the engine through splashing over, this does not fall under any of the enumerated events and is not covered. No recovery. – Non-appealable. NB. Due to the Supreme Court’s decision 3 Jan. 2000, this site 2000, ND 2000 p. 1, the MC provision for obligatory Particular Adjustment cannot be upheld against EU litigants and has therefore been replaced, in the 2000 Hull Conditions, by a reference to the Adjuster as Arbi-trator. The procedure remains the same, and appeal continues to lie to the courts. 10.2. Cargo Insurance ND 2002, 15 and ND 2003 p. 41,Gothenburg 28 March 2002 matter T 20686-98, W Sw AC 30 June 2003 matter Ö 2368-02, SC 16 June 2004 matter Ö 2844-03 (Yahroma) An insured cargo of redwood sent from north Russia to Egypt by river barge sank in the Kara Sea by Novaja Semlja. The facts, decisions and reasons of the DC and AC are given in last year’s account. The DC and AC denied recovery. SC denied leave to appeal. Average Adjuster’s Statement of Particular Average 12 July 2004 no. 3070, Gothenburg 11 Nov. 2004 matter T 7969-04 (Sayinur Yardimci), A production line for packing of beverages was damaged by rust after sea transport from Europe to Paramaribo, Suriname, South America. The assured claimed compensation from the insurance. The goods were packed in aluminium foil bags, which in turn were stowed in wooden crates. The cargo policy excepted damage through insufficient and unsuitable pack-ing. – The Adjuster found that the damage was probably due to salt water, that the packing itself may have been suitable, but the bags were perforated by being nailed to the crate floors, which was improper and a risk the insurer had not undertaken; however, the proximate cause of the damage was not the packing but the ingress of water, which was covered. Further, the assured did not inspect the cargo on receipt but left it stored for a whole year until the plant was ready to use the machinery. Although under the sales contract this was the seller’s duty, the failure to do it cannot affect the insurer. However, the insurer is liable for that part of the damage that must be taken to have been inevitable upon receipt of the cargo, which the Ad-juster took to be 2/3 of the total claim. – Settled with modification before the DC. Comment. It is hard to see how the exception for insufficient package could be invalidated because the proximate cause of the damage was seawater. 10.3 Boat and Yacht Insurance NB. PA below stands for Particular Average Statement. Gothenburg S Roslag DC 14 May 2004 matter T 2263-02 (Lättja) Ola B’s Pantænius Insurance covered i.a. engine and stranding damage. Sailing across the Gulf of Biscay B in thunder, B started his engine as an act of preparedness, stopping it again upon rattling from the engine. The engine had to be repaired at La Coruna for SEK 18,507. Later, on trying to land at the lock at Brunnsbüttel, the boat was first denied entry and had to motor out against heavy waves, which caused overheating. In connection with the propeller getting tangled, the engine stopped, and the boat drifted towards a pier and suffered certain hull damage. Pantænius’ agent inspected the damage in Sweden. Ola B demanded 86,507 SEK for the damage on the two occasions. Pantænius allowed DKK 5,000 in respect of the Brunnsbüttel hull damage. – DC. Ola B is entitled to the protection of a consumer insurance, where the assured must show the damage by simple preponderance of evidence, whereupon the insurer can show by ordinary burden of proof that an exception is applicable. Ola B re-ported the Biscay damage over six months afterwards, in connection with the Brunnsbüttel damage. As under the insurance conditions damage must be notified forthwith, Ola B is not entitled to cover for this damage. It makes no difference that Pantænius did not for a long time oppose this claim. The Brunnsbüttel grounding damage is admitted. According to Ola B the Brunnsbüttel engine damage was caused by his having to increase the engine revolutions

- 27 -

above recommendation against the heavy waves. Pantænius claim that the oil pressure sank, as a sign of insufficient maintenance. The DC accepted and refused coverage for this. – Appealed. Gothenburg 22 mars 2004, matter T 4188-02, W Sweden AC 28 Febr. 2005 T 2304-04, from Average Adjuster’s PA no. 3047 (Teka Elektra) At a boat mart, Sebastian S bought a motorboat whose previous owner was Jacob F. Next autumn he reported the boat stolen and claimed full insurance cover. In the same month Jacob F handed in an admittedly false report of his boat having been stolen. It appeared that the two had jointly bought a boat for twice the value of their own but had no means other than their boats to pay for this new object. The Adjuster did not find sufficient proof of theft and re-lieved the insurer (2003 issue of these reports). On appeal the insurer denied theft and in any case denied that stolen equipment should be compensated as new for old. – Neither the DC nor the AC considered it more likely than not that the boat has been stolen. Compensation denied, and the assured must cover the insurer’s costs. Gothenburg 20 Sept. 2003 matter T 2214-03 Torbjörn B’s boat was insured against sea damage arising directly and proximately through “other unforeseen and external circumstance”. The boat had a 175 hp outboarder and a 10 hp extra engine in the stern and had two unsealed cables leading through holes in the transom 15–20 cm above the water. While lying stern to the wind of maximum 10 metres/second it sank at its mooring at a floating jetty. The insurer (If) appealed against the Adjuster’s award of insurance compensation. If alleged that the sinking was not cause by a peril covered by the insurance and that in any case the sinking is due wholly to faulty sealing of over-water cable apertures, which is excepted under the insurance. – DC. As the adjuster has found it seems more likely than not that the sinking is due to an unforeseen external circumstance, so under the rule of consumer insurance and insured event has occurred. Although according to tes-timony seepage through the apertures might have been a contributing cause to the sinking, this is not proved and even less is it fully proved that the sinking was wholly caused by insufficient seeling of apertures. If has therefore not shown the exception to be applicable, and insurance compensation is due. – Non-appealable. Average Adjuster, PA no. 3053, 15 October 2002, Gothenburg DC 1 Dec. 2003 matter T 11542-02, AC W Sweden 19 Nov. 2004 matter Ö 1081-04, SC 19 April 2005 matter Ö 5178-04 (Vanessa) Spouses S owned a Marieholm 24 boat with a 170 hp inboard engine. On a trial trip in Sep-tember 1997, Bengt S noted smoke coming out of the cabin, which developed into an ex–plosive fire that burnt out the boat. Bengt jumped into the water and was brought to hospital with burns. His wife U having insured the boat with L Insurance, Bengt reported the loss to L. On L’s refusal to pay, Bengt and U sued L at the local DC, which referred the matter to the Adjuster. L alleged that the spouses had vainly tried to sell the boat; that they had bought another boat earlier the same summer; that on the morning of the damage Bengt S had called to inquire whether the insurance was in force; that a fuel line had been twisted in a way that would not have admitted sufficient fuel to run the engine, that the twist had caused a breach and fuel leakage; and that an inspection had revealed inflammable liquids on board. More-over, the insurance was signed for U and not for Bengt. – Adjuster: While the assured must show the occurrence of an insured event by preponderance of evidence, exceptions adduced by the insurer require full proof (citing cases). Thus while the assured must show fire by pre-ponderant evidence, the insurer must meet this by full proof of the fire being self-induced. Technical investigations have not given definite information how or where the fire arose. On the other hand the technical investigations have shown that the fuel line was so twisted that the engine would have insufficient fuel and that the pipe had broken through torsion, all of which indicates that the pipe had been twisted at sea after the fire. But statements by S that he

- 28 -

had trouble with the engine on the morning of the accident tend to weaken this assumption. Also, S’s inquiry of the applicability of the insurance was explained by apprehension that the insurance might have been transferred to the family’s new boat. Nor was there proof of eco-nomical motives for inducing the fire. L Insurance must therefore pay, and as both spouses owned the boat together, they were both entitled to insurance money under sect., 54 of the Insurance Contract Act. – DC. Affirmed. – AC. To substantiate that the fire was intentional, L must prove this to the standard normally required in civil cases. As the SC stated in NJA 1990 p. 93 and 1986 p. 470 this does not require a showing beyond any reasonable doubt as in a criminal case, but it requires more than preponderance as for showing the occurrence of an in-sured event, NJA 1992 p. 113. The State Technical Criminological Laboratory has not found any natural explanation for the fire. The twisting of the fuel line was such that no fuel could have reached the engine, which could not have functioned, and the only person who could have twisted the line was the owner. It is very unlikely that any one would have had cause to do this after the fire. The fuel pump construction is such that no considerable amount of fuel can be sucked out of the tank if it is tried to start the engine after the twisting of the fuel line. Such a quantity would not have caused the fierce fire that clearly occurred. The presence of diesel/petrol mixture in the petrol-driven boat is hard to explain otherwise than as used for intentional starting of a fire. Bengt S’ various explanations to why he was going out with the boat as well as his previous call to the insurer to make sure the insurance was in force and his mention of the fire risk is also suspicious. Altogether the AC finds it proved with sufficient likelihood that Bengt S arranged the fire. The Procedural Code 50:23 prohibiting change of evaluation of evidence depending on credence of witness is not directly applicable but does not affect the Court’s decision. Appeal allowed, with costs. – Appeal to SC allowed on the question of costs only. Average Adjuster 23 Oct 2000, PA 3034 , Gothenburg 21 Oct 2002 matter T 12004-00, West Sweden AC 15 Oct 2003 matter Ö 4502-02, SC 4 March 2004 matter Ö 4352-03 According to receipt 11 July 1997, Dennis O bought a Cruiser 2570 motorboat from Stefan K for SEK 230,000. Three days later he insured the boat with Moderna Försäkringar (Atlantica). On 20 August he informed Atlantica that the boat had been stolen from its marina, formally reporting the theft on the 18th September. Claimed cover of SEK 229,000 was refused, though Atlantica admitted 200,000 minus 1.000 deductible as a reasonable amount. Atlantica never paid either sum, and Dennis O brought the matter to the Adjuster. Atlantica objected – as far as considered here – that there had been no insured loss, the boat was sold in Estonia, and there was no agreement to pay SEK 199,000. – The Adjuster: An insured consumer must show the occurrence of an insured event by preponderant evidence (NJA 1984, 504 I–II and other cases). Dennis O’s communications with Atlantica and his police report declare the boat’s disappearance, as supported only by Dennis O’s statements. Atlantica has submitted a police investigation where one R reports having taken over the boat from Dennis O in Sweden and bringing it to Pirita yacht harbour in Estonia on instructions of one K. Police confronta-tions support the identification. Dennis O has not shown greater likelihood of an insured loss having occurred than not having occurred and his claim cannot be accepted. Nor does the At-lantica correspondence indicate an admission of a lower amount, and Dennis O’s claim there-fore fails entirely. But by custom the insurer must pay adjustment costs unless the claim is manifestly unfounded, which is construed restrictively. As the Adjuster has only examined adduced proof of loss and not whether Dennis O had committed fraud there is no ground for charging him adjustment costs. Nor, according to practice, were are insurer’s costs before the Adjuster recoverable. – On appeal DC agreed with the Adjuster that Dennis O had not shown greater likelihood for the occurrence of a theft than for its non-occurrence. Nor did Atlantica’s letter to Dennis O indicate a payment agreement. Appeal dismissed. On further appeal, AC confirmed the decision. – SC denied leave to appeal.

- 29 -

Average Adjuster 25 Oct 2004, PA 3072 , Gothenburg 26 Jan. 2005 matter T 11867-04 On 21 May 1997 Johan S insured a motorboat with Moderna Försäkringar (Atlantica) for 150.000 crowns. On 4 October 1998 he reported the boat to be stolen and claimed the insur-ance amount. Atlantica objected that Johan S lacked insurable interest as he did not own such a boat, and if he did, it could only be worth 90.000 crowns and could not be compensated by more. The matter was first brought in Karlstad DC, whose order to remove to the Adjuster (matter T 91-01) was in substance affirmed on appeal (West Sweden AC matter Ö 4462-01). Before the Adjuster Johan S alleged having bought the boat from one PE and moored it at a Karlstad club. It was stolen some time between the 17–22 September in 1998; Johan S lived in Oslo and could not attend to it regularly. Atlantica asked Johan S to show his right to the boat, and Johan S produced a contract dated as the time of purchase 2 May 1997. Atlantica could establish that the form used was printed no earlier than the summer of 1998, whereupon Johan S explained that the original had been written on another paper but replaced by the pre-sent document, which was more tidily filled in by typewriter. PE, who could not be enjoined to be heard before the Adjuster, had not been cooperative. As Johan S had also changed other statements when confronted with facts, the Adjuster did not find him to have proved an insur-ance loss, which requires prevailing proof according to the normal procedural standard (RH 1996:3). Compensation denied. According to firm Adjuster practice, procedure costs are pay-able by the insurer unless the claim is clearly unfounded; such costs were not awarded. The Adjuster held that the preliminary court procedures followed the same rule. – Johan S. ap-pealed to the Gothenburg DC but withdrew his appeal. N.B. In the court proceeding, the Lugano Convention’s rule of an assured’s right to have his case tried in a court was held to apply only to international disputes. This is no longer true since the Convention is replaced by Council Regulation (EC) 44/2001. Uddevalla 12 Dec. 2003 matter T 446-02, West Sweden AC 4 Jan. 2005 matter T 1145-04 (Navicula) Christer B had a Mediterranean yacht insurance, applicable to European coastal waters out to 200 nm, but not African coastal waters or the Canary Islands. Believing he had cover to the Canary Islands, he set off for that destination but encountered hard weather 60 miles off the African coast and made for the Moroccan port of Mohammedia for refuge. Close to the port his vessel capsized and was lost. Insurer Pantænius refused cover because the occurrence was outside insurance sailing limits. Christer B objected – as far as considered here – that the ap-plicable Danish law is similar to the Swedish law, and that the emergency that forced him to seek refuge occurred within insurance limits 200 miles from European coastal waters and not in African waters. – DC remarked that a consumer has reason to interpret conditions as they are written and that the emergency did occur within 200 miles from the European coast. Nor did 60 miles off the African coast come within the exception for “African coastal waters”. B was therefore covered. – AC, adding that Danish statutes extend “coastal waters” to no more than 30 miles, affirmed. – Non-appealable. 10.4. Legal aid insurance Gothenburg 10 Dec. 2004 matter T 2467-04 In (2003) SML II.1.2. there is reported the case of the Windcatcher, whose sellers first con-tested the validity of the sale contract, resulting eventually in a settlement before the court, and who later contested the buyers’ right of inscription of their ownership. The sellers claimed legal costs from their vessel insurance, which was limited to 75,000 SEK for each matter. The insurer and the Average Adjuster regarded the dispute as one with a total limit of 75,000 SEK. DC – The reasons for the limitation, which is for cocmpensations to be used efficiently with-out causing the insurance colletive inordinate costs. As long as this purpose is fulfilled, the

- 30 -

fact that the actions may be connected does not prevent cover for each of them. Claim granted as for two actions. Non-appealable. 11. Courts and Procedure 11.1. Jurisdiction and venue ND 2003 p. 54 Lower Norrland AC 20 April 2000 (Jönköping) Salvor B localised a wreck from 1916 loaded with wines, cognac and champagne. For raising he engaged contractor Ö according to a written agreement. A certain animosity having arisen between the parties, Ö sued B at Gävle DC for the agreed compensation. B objected that the matter is regulated in the MC and therefore must be determined by a maritime court. Ö re-joined that his claim and B’s objections were based wholly on the contact. – DC. The circum-stance that maritime rules may become relevant when the case is tried does not make it a mat-ter regulated by the MC (NJA 1982 p. 315). Objection overruled. – AC. The claim is based on the agreement for the raising of the two-mast schooner Jönköping and does not turn on such salvage as is governed by MC 16:1 but on general rules of contract. DC upheld. Svea AC 8 June 2004 matter Ö 1149-04 J applied to the bailiff of Stockholm for a payment injunction. On the claim being contested, the bailiff directed it to Gotland DC. J then applied to SC have the case consolidated with others at Strömstad DC, which was denied because the claim concerned two shipping part-nerships which as treated in the MC must be considered by a maritime court. Gotland DC removed the matter to Kalmar MC. After appeal against the removal, Svea AC redirected the case to Gotland DC, because the parties had already commenced communication, which was held to exclude removal. At that stage Kalmar MC had however already redirected the matter to Gothenburg MC, to be consolidated with the other matter from Strömstad DC. Gothenburg MC then decided to remove the whole matter to Gotland DC, which after appeal was affirmed by West Sweden AC. Gotland DC denied having competence, citing the SC and Svea AC de-cisions above. – On renewed appeal to Svea AC, the court stated: A removal decision requires the matter to have been brought before a higher court. According to general rules of venue the parties may agree on which MC the case shall referred to. They have agreed upon the Gothen-burg MC. That MC shall take up the two cases including the matter of costs. Non-appealable. 11.2. Arbitration clause The ticking off of Swedish Cruising Club arbitration in a signed boat sale contract was ac-cepted as a binding arbitration agreement, see above under sale 1.3.4. 11.3. Arrest and default judgement Kalmar 20 Aug. 2003 matter T 925-03, reopening Kalmar 18 March 2004 matter T 1513-03 (Fortuna Australis) Fortuna Australia Maritime Ltd, Valetta, Malta (Fortuna), had been charged by Nordbank, Hamburg, to pay capital and interest on a vessel mortgage loan. On 12 June 2003 the DC declared interim arrest of the vessel concerned, then at Oscarshamn. On the same day Fortuna was summoned and subpoenaed to reply within fourteen days on pain of a possible default judgement, but no evidence was shown that Fortuna had been notified of these communica-tions. On 19 June 2003 a new subpoena was issued, whereof the DC received acknowledge-ment of receipt but no reply. The DC then permitted the plaintiff to effect service of sum-mons, issued afresh on 9 July 2003, whereof the DC received evidence of service dated 21 July 2003. Fortuna has handed in no written defence. Since Fortuna has not replied and the claim is not manifestly without foundation, the DC pronounced a default judgement in accordance with plaintiff’s claim, including amounts claimed, default interest, definitive arrest and costs, all payable out of the vessel. – On reopening, the owners had repaid the capital, but denied the (German) bank’s claim for default interest (or interest of 5.25% for the bank’s “current interest rate on overdrafts”. The DC determined that as full payment according to the

- 31 -

default judgement had been the prerequisite for the bank ceding a planned threatening arrest of the vessel, default interest must be paid according to Swedish rules. – AC changed with regard to interest. 11.4. Costs See above under Yacht Insurance. 12. Other transport law 12.1. Road transport, scope of domestic rules Linköping 3 Oct. 2002 matter T 960-00, Göta AC 18 Nov. 2004 matter 4299-02 (Rogalin) Applicability of time bar to consequential damage claim, above 1.3. Damage from bunkers. 12.2. Road transport, gross negligence Helsingborg DC 20 Oct 2004 matter T 4128-02, Skåne/Blekinge AC 15 Febr. 2005 matter T 2823-03 Clarion Sweden AB had bought expensive radio equipment from Germany. For carriage, Clarion agreed with Lagerdistribution AB who in turn engaged GeoLogistics AB . After transport to the latters’ Helsingborg terminal, the trailer was detached from the tractor vehicle and placed on the terminal yard on the 6 October 2001. At some time during the 6th or 7th October another tractor vehicle was stolen in the town, was driven to the terminal whose gate was opened by use of a code known to the drivers of all users, whereupon the trailer was stolen from the yard. The cargo owner claimed full damages for gross negligence, which was denied by the DC. – On appeal, the AC affirmed. The court established that for unlimited recovery the cargo owner must first show such loss that the carrier or a servant of his has caused intentionally or by gross negligence. The carrier may still avoid unlimited recovery by clarifying that its organisation was satisfactory for the avoidance of the loss. If the carrier can do so, the cargo owner may still show that even under those circumstances it is clearly more likely than not that the loss was caused intentionally or through gross negligence. – Non-appealable. III Bibliography 1. Official publications 1.1. Government bills, ministry memoranda etc Prop. 2003/04:79 Höjda begränsningsbelopp för redares skadeståndsansvar (Bill 2003/04 on Increased limitation amounts for shipowners’ liability) based on the 1996 Amendment Protocol to the 1976 Limitation Convention. Prop. 2003/04:88 Övervakning av sjötrafiken (Bill2003/04 on Surveillance of Sea Traffic),- based on the EC Surveillance Directive. Prop. 2003/04:150 Försäkringsavtalslag (2005:101)(Bill 2003/04:150) on a new Insurance Contract Act). The Act concentrates primarily on consumer insurance, secondly on enterprise insurance and has few provisions bearing on marine insurance. Prop. 2003/04:167 Inspektioner inom sjöfartsskyddet (Bill 2003/04:167) on Inspections within the Ship/Harbour security system). SOU 2004:87 Ny reglering för transporter av farligt gods (New regulation for transport of dangerous cargo). Ds 2004:239 Förbättrade ersättningsmöjligheter vid oljeskador till sjöss (Improved compen-sation for oil pollution damage at sea), Memorandum with the 2002 Protocol of the 1992 Fund Convention in English and Swedish.

- 32 -

1.2. Maritime Law Institute’s opinions to Government inquiries Yttrande over Sjöfartsverkets betänkande om förutsättningar för ett fritidsbåtregister (N2003/733319/TP) (Opinion on a possible recreational craft register). The Institute observes that the previous establishment and subsequent abolition of a register speaks for caution and a need to carefully weigh advantages against costs. A thorough evaluation of those experiences should be a condition for the creation of a new register. In substance, the damage risks ad-duced in favour of a register and obligatory third party insurance seem to exist only for fast motorboats. On the other hand, the Institute takes a grave view of increasing thefts and of ac-cidents caused by gross intoxication, high speeds and incompetent persons conducting fast boats and recommends that a serious study should be initiated. Yttrande over sjöfartsinspektionens remiss 010202-054-15078 med förtydligande av före-skrifter (2004:16) om säkerhets- och miljökrav (Institute’s opinion concerning safety and environmental requirements for recreational craft). The Institute notes that the Maritime Ad-ministration has set out to clarify who is responsible for the fulfilment of the EC marking and quality requirements for boats and that the result in respect of private importers is either un-clear or downright invalid. According to the proposal, a person bringing with him a boat for his private use will be subjected to having the boat examined and CE-marked, which is supported neither by the Recreational Craft Directive nor by the Recreational Craft Act and the powers delegated therein to the Maritime Administration. Yttrande till promemoria med förslag till ändringar i lagen om sjöfartsskydd (Opinion on Memorandum proposing amendments to the Act on Maritime Security). The Institute has no objections in substance but finds the location of the proposed amendments into the Ship Se-curity Act and the division of surveillance responsibility to be confusing and unsuitable. Yttrande över höjda begränsningsbelopp för redares ansvar (Opinion on increased liability amounts for shipowners’ liability). For the substance of the proposal the Institute refers to its previous approval of the Government’s memorandum Ds 1997:64. While rules exist or are be-ing developed for intoxication and competence on fast boats, the Institute recommends that a serious study should be undertaken of the theft problem, especially in view of the previously criticised abolition of the good faith protection for buyers of stolen chattels (Institute’s opin-ion 2003). 2. Books Falkanger, Thor, Bull, Hans Jacob and Brautaset, Lasse, Scandinavian Maritime Law, Norwegian Perspective, Oslo 2004 Johansson, Svante O, Varuförsäkringsrätt – den rättsliga regleringen av försäkring av varor under transport (The law of cargo insurance), 2004, 567 pages. Scandinavian Studies in Law Volume 46, Maritime and Transport Law, Stockholm 2004, cited below under Articles as 46 Scand.Studies. Tiberg, Hugo, Maritime and Transportation Law, Study Material, Stockholm 2004 Tiberg, Hugo, Marine Insurance, Studymaterial, Stockholm 2004 Transportören, speditören, logistiken och juridiken: ett seminarium (The Carrier, the Forwarder, Logistics and Law: a Seminar), Swedish Maritime Law Association vol. 76. Wetterstein, Peter, Redarens miljöskadeansvar (Shipowner’s Environmental Liability), Åbo 2004, 564 pp. 3. Articles and essays Bull, Hans Jacob, Insurance Law and Marine Insurance Law, The Unique Twins, 46 Scand.Studies pp. 11–33. Falkanger, Credit Based upon Security in Ships, 46 Scand.Studies pp. 36–59.

- 33 -

Gorton, Lars, V olume Contracts of Affreightment – Features and Principles, 46 Scand. Studies pp. 61–91. Honka, Hannu, The Legislative Future of Carriage of Goods by Sea: Could it not be the UNCITRAL Draft? 46 Scand.Studies pp. 93–120. Johansson, Svante O, Varuförsäkringsrätt – den rättsliga regleringen av försäkring av varor under transport (The law of cargo insurance), 2004, 567 pages. Johansson, Svante O, Jurisdictional issues connected with direct actions against P&I Clubs under Scandinavian and European Law, (2004) Journal of International Maritime Law, pp 71–83. Johansson, Svante O, Settlement of disputed insurance claims, (2004) 46 Scand.Studies pp. 121–133. Ramberg, Jan, The Future Law of Transport Operators and Service Providers, 46 Scand. Studies pp. 135–151. Røsæg, Erik, News under the Athens Sun – New Principles and Lost Opportunities of the Athens Convention 2002, 46, Scand.Studies pp. 153–173. Røsæg, Erik, Sommari de legislazione e giurisprudenza: maritime cases from Scandinavia, 106 Il Diritto Marittimo. Schelin, Johan, CMR Liability in a Law & Economics Perspective, Scand.Studies pp. 175–190, www.juridicum.su.se/transport 2004. Schelin, Johan, Documents under the UNCITRAL Draft Instrument on Carriage of Goods by Sea, 46 Scand.Studies pp. 191–199. Tiberg, Hugo Crippling Fine for Turkish Oil Pollution (Anatolian Star), Maritime Law Institute Seminar 2004, www.juridicum.su.se/transport . Tiberg, Hugo, Developments in the Swedish Maritime Law 2003, Maritime Law Institute 2004, www.juridicum.su.se/transport . Tiberg, Hugo, Flyttning och försäljning av båtar (Moving and sale of abandoned boats), Maritime Law Institute 2004, www.juridicum.su.se/transport . Tiberg, Hugo, The Practice and Value of Compromise in Ocean Boundary Law: The Experience of Sweden, Caron and Scheiber, Bringing New Law to Ocean Waters, Berkeley & Boston 2004, pp. 419-425. Tiberg, Hugo, Wanton Blow against Waterscooters, PX no 8 2004 pp. 49-50, Maritime Law Institute 2004, www.juridicum.su.se/transport . Personal watercraft are recognized in the EC Recreational Craft Directive as environment-friendly vehicles that must be permitted to cir-culate freely in member States. They may not subsequently be banished to special fairways and other nominated areas. The Swedish Waterscooter Ordinance’s provisions to that effect are contrary to binding EC legislation and consequently lack legal validity. Tiberg, Hugo, Wrecks and Wreckage in Swedish Waters, 46 Scand.Studies pp. 201–218, www.juridicum.su.se/transport 2004. Wetterstein, Peter, Environmental Impairment Liability after the Erika and Prestige Accidents, 46 Scand.Studies pp. 229–246.