The Swedish Maritime Code and the Implementation of International Treaties
By Måns Jacobsson, Former Director, International Oil Pollution Compensation Funds
Swedish legislation in the field of maritime law has since the late 1900s been developed in close co-operation with the other Nordic countries. As a result, there is a considerable degree of uniformity between the Maritime Codes of Sweden, Denmark, Finland and Norway. The parts of the Codes that govern the carriage of goods and chartering of vessels are actually practically identical.
As a result of the similarity of maritime legislation between the Nordic countries, judgements rendered by the courts in one of these countries are normally taken into account by the courts in the other countries. Important judgements are reported in an annual publication, Nordic judgements in maritime matters (Nordiske Dommer i sjöfartsanliggender).
The present Swedish legislation in this field is contained in the Maritime Code of 1994, as amended (sjölagen). This Code, which is divided into 23 chapters and contains some 400 sections, does not only comprise provisions of a civil or commercial law character, but also provisions in the field of administrative, procedural, criminal and public international law. The Code deals inter alia with registry of ships, ship mortgages, arrest of vessels, responsibility and competence of ship masters, civil liability in general and limitation of liability, collision liability, liability for oil pollution, carriage of goods and passengers, salvage, general average and maritime courts as well as criminal liability for negligence in sea traffic and for navigation of vessels under the influence of alcoholic beverages. Some areas are, however, dealt with in separate acts, for example, legislation concerning the crew, maritime safety and marine insurance.
Maritime law is of an international character and, as is the case for many other countries, in most areas, Swedish legislation is based on international treaties developed within the United Nations system, mainly under the auspices of the International Maritime Organization (IMO) and the United Nations Commission on International Trade Law (UNCITRAL). In recent years legislative acts adopted by the European Community/European Union have also had an impact on Swedish maritime law.
Contrary to what is the case in most countries in continental Europe, Swedish ratification of an international treaty does not result in the treaty becoming part of Swedish domestic law, but it must be incorporated into national law by a legislative act to have effect domestically. Those parts of a treaty which affect individuals, legal persons or Swedish authorities are then in most cases rewritten in a Swedish statute using the technique in respect of systematics and language normally used in Swedish domestic legislation. This is also the case as regards treaties in the field of maritime law to which Sweden is a party. Examples of how certain maritime treaties have been implemented in Sweden are given below.
The 1976 Convention on Limitation of Liability for Maritime Claims, as amended by the 1996 Protocol thereto, has been implemented through Chapters 9 and 12 and the 1989 Convention on Salvage through Chapter 16. Chapter 4 on Arrest of Vessels in International Legal Relations is implementing the 1952 Convention for the unification of certain rules relating to arrest of sea-going ships.
The International Convention on Civil Liability for Oil Pollution Damage, 1992 (1992 Civil Liability Convention) and the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers Convention) have been implemented by the insertion of substantive provisions corresponding to those in the respective Convention in Chapters 10 and 10a of the Maritime Code.
An important part of the Maritime Code is Chapter 13 on Carriage of General Cargo. Sweden is a party to the International Convention for the Unification of Certain Rules relating to Bills of Lading as amended by the 1968 Protocol thereto (the Hague-Visby Rules), and previous Swedish legislation was based on these Rules. In the Bill relating to the new (1994) Maritime Code, the Government proposed that Sweden should ratify the United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules), but that the ratification should not take place until the Hamburg Rules had received a relatively wide ratification of Sweden’s main trading partners. The Government was authorised by the Swedish parliament to decide when ratification should take place. The content of Chapter 13 was brought in line with the Hamburg Rules to the extent possible without bringing the legislation in conflict with the Hague-Visby Rules. Since the condition of ratification of the Hamburg Rules by Sweden’s main trading partners has not been fulfilled, Sweden has not ratified the Hamburg Rules, and Sweden remains a party to the Hague-Visby Rules.
It should be noted that Sweden can no longer become a party to the Hamburg Rules, since they contain provisions relating to jurisdiction and enforcement of judgements, and such matters fall within the exclusive competence of the European Union after the adoption of Regulation No 44/2001/EC on jurisdiction and enforcement of judgements in civil and commercial matters.
As regards the carriage of passengers and their luggage, Sweden is not a party to the 1974 Athens Convention on the subject, or to the Convention as amended by the Protocols of 1990 or 2002 thereto. However, Chapter 15 of the Maritime Code is to a large extent based on the 1974 Athens Convention, and the limitation of liability of the carrier is under the Chapter set at the amounts laid down in the 1990 Protocol. It should be noted that the 1990 Protocol is not in force and that the 2002 Protocol will enter into force on 23 April 2014.
Although Sweden has not ratified the 1974 Athens Convention as amended by the 2002 Protocol (2002 Athens Convention), the 2002 Convention has de facto largely become part of the Swedish legal system through EU Regulation No 392/2009 on the liability of carriers of passengers by sea in the event of accidents, which applies from 31 December 2012. This Regulation implements the 2002 Athens Convention and the (non-binding) Reservations and Guidelines for the Implementation of the Athens Convention adopted by the IMO Legal Committee on 19 October 2006 (cf. IMO Assembly Resolution A.24/Res.988). The Regulation differs from Chapter 15 of the Maritime Code mainly by imposing a more onerous liability on the carrier and providing for higher limitation amounts. Where Chapter 15 is at variance with the Regulation, the Regulation will prevail.
The Swedish Government is considering a proposal that Sweden should ratify the 2002 Athens Convention and is in that context examining the amendments to Chapter 15 required in the light of the 2009 Regulation and the Convention.
Directive 2009/20/EC on insurance of shipowners for maritime claims was implemented into Swedish domestic law by provisions in Chapter 7 of the Maritime Code which contains general provisions on liability and on compulsory insurance.
Two treaties adopted under the auspices of IMO have been implemented in a different manner outside the Maritime Code, namely the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (1992 Fund Convention) and the 2003 Protocol thereto establishing a Supplementary Fund. In a separate act, the Act on Compensation from the International Oil Pollution Compensation Funds, it is provided that the substantive articles of these treaties apply directly in Sweden, and the relevant articles are annexed to the Act.
A special concept in maritime law is that of general average, which in simple terms is a form of mutual insurance whereby all those who have a financial risk in a maritime adventure contribute proportionally to the loss sustained by one or more of the interested parties in the event that a sacrifice is made or an expenditure is incurred in order to safeguard the maritime adventure for the remaining participants. The distribution of the losses are dealt with in the York-Antwerp Rules, a set of provisions adopted by the Comité Maritime International (CMI), an international non-governmental organisation. Chapter 17 of the Maritime Code implements the 1994 version of the York-Antwerp Rules by a provision to the effect that the significance and importance of general average is governed by those Rules unless otherwise agreed
The future development of the Swedish maritime legislation will to a large extent depend on external factors. It is possible that the present high degree of similarity between the legislation in the Nordic countries will gradually diminish for several reasons. It appears that Nordic co-operation in the field of maritime law is not nowadays given the same political importance as previously. The European Union has in recent years become more active in that field of law, and the fact that three of the Nordic countries are members of the Union whereas the forth is not may play a role in this regard. It should also be recognised that today the maritime policy interests of the Nordic countries may not always coincide.
Måns Jacobsson is Former Director of the International Oil Pollution Compensation Funds, Visiting Professor at the World Maritime University in Malmö (Sweden) and at the Maritime Universities in Dalian and Shanghai (People’s Republic of China), Honorary Professor at Nottingham University (United Kingdom, Member of the Executive Council of the Comité Maritime International (CMI), Doctor of Laws honoris causa