SWEDISH MARITIME LAW. I. Legislation. by Hugo Tiberg Professor of Maritime Law at the Stockholm University

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1 SWEDISH MARITIME LAW by Hugo Tiberg Professor of Maritime Law at the Stockholm University DEVELOPMENTS 2004 [cite as (2004) SwMarLaw 3 rd Ed.] Abbreviations: AD (Labour Court Reports, Stockholm), JT Juridisk Tidskrift vid Stockholms Universitet (Law Journal at Stockholm University, Stockholm), ND Nordiske Domme i Sjöfartsanliggender (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 explanatory 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: , 2003: , 2003:569) Act (2004:468) amending the Vessel Safety Act, containing provisions authorising injuncttions concerning warning notices, implementing the EC Directive 2001/95/EC on Product Safety 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 incorporates additional rules accepting inspections by EC Commission inspectors 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-conforming 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 requirements for recreational craft and also incorporating personal watercraft into the Directive 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 waterscooters, 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 amended 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 Commission 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 commercial 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 preliminary 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 Act (1983:293) on the Establishment, Enlarging and Abolition of Public Fairways Amendment (2004:601) introducing a requirement of an environmental consequence investigation 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 matter B On the character of a Jet-ski waterscooter, see 6.1. Right of using water areas Registry Stockholm 20 Oct default judgement in the matter T , Stockholm 3 March 2004 matter Ä , Svea AC 31 March 2004 matter Ö , SC 27 April 2004 matter Ö (Marina av Stockholm). United Broker & Law AB in bankruptcy (United) sued Sanscero AB for SEK as unpaid purchase money for the restaurant ship Marina av Stockholm. As Sanscero did not respond 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 Ä , 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 nonpayment 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 , Stockholm 5 March 2004 matter A , Svea AC 11 May 2004 matter ÖÄ , SC 2 July 2004 matter Ö (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 declaration 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 inscription could justify such a revision. Affirmed by all instances Sale Binding agreement Stockholm 31 May 2001 matter T , Svea AC 2 Oct matter T (Pantera) The case, reported in last year s issue, is now published in ND 2003 p Payment Stockholm 22 Dec matter T , SveaAC 18 June 2004 matter T (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, Fredrik 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 sentenced 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 Good faith purchase and handling stolen goods South Roslag DC 15 Nov matter T , Svea AC 13 Nov matter T 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 matter B , Svea AC 16 Nov matter B 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 indicted for handling stolen goods. The DC found that the buyers had not had reason to believe 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 being sluggish without inquiring for the reason, and they had not lifted the boat to check the bottom and propeller. They had not asked or received any information about the boat s antecedents, 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 insurance 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 It does not appear whether the insurance company had reclaimed the boat on that basis or merely raised their claim through the prosecutor Defects Karlstad DC 20 Febr matter FT , West Sweden AC 31 Aug matter FT 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 The engine 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 requested 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, 5 th 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 29 th 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 Under the contract, equipment was to be as per attached inventory. No such inventory was presented, but plaintiffs submitted a number of 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) headsails, 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 (F) The outboard engine described as Mercury 4 hp 2001 was very old, perhaps from (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 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 - 5 -

6 The parties had agreed that the dispute should be solved on the basis of the contract provisions 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 determined 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 broker 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 discrepancies 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 items 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 1 st January

7 Another list of future costs, scrutinized in the same manner, was reduced to 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 ,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 1 st January 2005, the arbitrator declared himself ready to consider this issue separately. Västervik 10 Nov matter T , Göta AC 22 Dec matter T , SC 16 Feb matter T 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 depending 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 disproved 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 presale 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 primarily 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 Broker commission Sollentuna DC 7 Dec matter T (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 parties hadd reserved the right of cancelling upon notice. T contacted S to whom J later sold the ship for SEK T sued for his commission. J alleged negligence in T s failing to convey 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 after T s notifying S as buyer. According to practice this is sufficient for earning commission if - 7 -

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 admitted. Svea AC denied leave to appeal Damage from bunkers Linköping 3 Oct matter T , Göta AC 18 Nov matter (Rogalin) LOAB delivered oil to ferry Rogalin, using Vikingstad as performing carrier and also for mixing 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 undertaking 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 carriage. 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 indicated 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 other than the VTL. The shipowner s claim was also made not as a party to the contract of carriage 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 Vikingstad'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 Vessel safety Gothenburg 24 September 2004 matter B (Silverland) Fisherman CH had been serving as master on ship-sized fishing vessel without having the formal competency of class VII required for this. He alleged not having known of the requirement, 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 forfeiture of the value of the catch. Non-appealable. Maritime Inspection decision 3 Nov matter Owners of vessels used for fishing charter had applied for extension of their Master VI competency needed for conducting their boats to the fishing fields. The Inspection refused prolongation, 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 Shipping partnership Svea AC 8 June 2004 matter Ö 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, Boat club Linköping DC 2 September 2004 matter FT , Göta AC 31 March 2005 matter FT Oded S, member of the Kinda Boat Club, asks for a declaration that he is not obliged to perform 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 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 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, observing 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 requirements were not fulfilled, the application could not be granted. Non-appealable Shipmaster s liability Nacka 24 March 2004 matter B 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 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 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 continued activity of lookout and directing the vessel s course (see below). Non-appealable. Kalmar MC 17 May 2004 matter B (trawler LBB 1124) Libility in damages of master sentenced for criminal conduct, see under Gross marine intoxication. Traffic Pilot s liability Malmö DC (Maritime Court) 30/ matter B , AC Skåne/Blekinge 18 Sept matter B 30-01, new trial ordered SC 12 June 2002 matter Ö , retrial Skåne/Blekinge AC 30 Jan DB 1016 matter B (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 - 9 -

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 exceeding 1.5 knots, the tugs had been towing starboard and port respectively and the vessel reversing 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 ). 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 Freight claim Malmö 27 Oct matter FT 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 seller 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 matter T , West Sweden AC 12 March 2004 matter T Nordic Trading Co (NTC) ordered carriage of chemicals from Felixstowe in England to Amsterdam 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 consignment 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. Nonappealable Freight payment Gothenburg 17 June 2004 matters T and T , West Sweden AC 4 March 2005 matter T 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 Chartering Loading damage Gothenburg 12 January 2004 matter T and T , West Sweden AC 4 March 2005 matter T (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 (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 lifting, 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 matter T M/S Björg was registered as a passenger motorship with Carina C as owner till the end of In the winter of the vessel was moored at the wharf of former Karlstad Shipyard, where she sank in early May After admonitions by the municipality to remove the vessel, Carina C s ex-husband Lennart finally raised her in April 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 The municipality then raised the vessel, for which it debited Carina C the amount spent for the raising plus moving costs from the summer Since the turn of the year 2003/03 Lennart C is registered owner of the vessel, which sank again in March 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 liable. (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 disposition, 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 Water pollution Water Pollution Charge Stockholm DC IV 31 July 2002 matter B , Svea AC V 24 Sept matter Ö , SC 27 May 2003 matter Ö , SC 11 May 2004 matter Ö (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 detention 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 Coastguards. 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 operator of vessels for not inconsiderable oil discharges in Sweden s EEZ. The competent authorities 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 going 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 progress 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 international 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 specifically provided in WPA chapter 1 section 5. The present question is internationally contentious (citing authorities). The right of prohibiting oil discharges in the EEZ follows from UNCLOS art. 56 and 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 , 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 navigating 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 , Svea AC (V) 24 Sept matter Ö (Alambra), SC 11 May 2004 matter Ö 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 authorities. UNCLOS art 220 (6) indicates under what conditions a coastal state may institute legal action against a vessel for discharge in the EEZ, i.e. (1) that the discharge has caused considerable damage or risk of such damage, (2) that there is clear objective evidence of the discharge 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 foreign 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 regulation 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 , Göta AC 22 Nov 2002 matter Ö , SC 11 May 2004 matter Ö Wind Spirit DC imposed pollution charge, affirmed by AC. Appeal in both instances dismissed according 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 vessel 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 bucket overflowed spilling about one litre onto the deck and into the water. Coastguards debited the Navy 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 matter B , Göta AC 17 Febr matter B (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 behind 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 matter B Albakor In Malmö 3 June 2002 matter B (2002) SwMarLaw 13, the second mate of Russian Albakor was sentenced to two months prison for running the vessel onto a shoal in an intoxicated 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 Criminal sanction for pollution None Criminal liability for environment blockade Norrköping DC 27 June 2002 matter B (Fagervik), Göta AC 18 Nov matter B 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 damages 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 unauthorised 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 interfered 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 matter B Fredrik A had been caught in August 2003 conducting a jet-ski (semi-submersible waterscooter) 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 effect from the 15 th July 2004 to permit the use of any waterscooter in public fairways and certain other areas. The place of driving is part of a public fairway the public fairway. The County Administration has not according to section 3 of the Ordinance restricted the use of waterscooters 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 principle of legality as expressed in section 5 of the promulgation Act to the Penal Code, be convicted for an act that was not criminalised at the time of judgement. An exception for temporary 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 Negligence in Sea Traffic Grounding and collision Luleå DC 17 Jan 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 Nordtrader. 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 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 manslaughter, 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 manslaughter. 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 behind her, she is considered 2/3 at fault, and the damages were set down to 1/3. Appealed to Svea AC as matter B Judgement pending 21 April Mora DC 25 March 2003 matter B , Svea AC 22 June 2004 matter B 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 considerable 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 , West Sweden AC 121 Aug matter B 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 denied. Non-appealable. Further under Traffic separation Malmö DC (Maritime Court) 30 Nov matter B , AC Skåne/Blekinge 18 Sept matter B 30-01, new trial ordered SC 12 June 2002 matter Ö , retrial Skåne/Blekinge AC 30 Jan DB 1016 matter B (Hyphestos) See under 3.6 Pilot s liability. SC 16 Dec matter B affirming Svea AC 12 Dec matter B , affirming Stockholm DC XII 16 Oct matter B In morning dusk, L in his runabout with three passengers had been entering Stockholm harbour 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 proper side of the channel and had not been charged with failure of anything other than diminishing speed, which he tried to do. V alone should therefore be liable for negligence at sea, causation of death and damages therefor, while both were liable for marine intoxication. SC maj

17 ority (3-2). It was possible to see 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, manslaughter and causing bodily harm. L has applied for reopening for procedural errors in SC. Luleå MC 26 Nov matter A (Casino Express) Maritime declaration concerning a ferry grounding in hard weather outside Umeå Speeding Nacka 24 March 2004 matter B Overtaking at close quarters at 51 knots, see under Grounding and collision Nacka 2 Sept matter B 5-03, Svea AC 9 Dec matter B , and Nacka 16 Sept matter B , see below under Gross marine intoxication Stockholm 13 Oct matter B , Svea AC 9 Dec matter B , SC 2 March 2005 matter Ö , below under 6,2.3. Gross maine intoxication Traffic separation Gothenburg 15 April 2004 matter B , West Sweden AC 12 Aug matter B (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 negligently omits to follow the provisions on traffic separation shall be sentenced to fines. Robert Q was so sentenced. Leave to appeal denied. Non-appealable Other negligence in sea traffic Stockholm 16 April 2004 matter B (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 matter B , Svea AC 9 Dec matter B , SC 18 Febr matter Ö 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 matter B , Nacka 2 Sept matter B 5-03, Nacka 16 Sept matter B and Nacka 27 Aug matter B See under Gross marine intoxication Nacka 3 Nov matter B 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 Sailing prohibition Sundsvall 1 Nov matter B Fredrik A had been caught in August 2003 conducting a jet-ski (semi-submersible waterscooter) 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 waterscooter 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 15 th 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, restricted the use of waterscooters in public fairways. 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 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 exception for temporary criminalisation due to special conditions is not applicable. Acquitted. Non-appealable 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 exhalation air (0.5 mg/l) Acquittals Malmö 18 March 2004 matter B matter B (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 vessel 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 , Svea AC 4 Jan matter B , SC 8 April 2005 matter B 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 matter B Returning to the archipelago after a trip to Stockholm, Mikko L and his wife had been drinking 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 Ordinary marine intoxication Nacka 25 Febr matter B 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) sentenced him to rather high fines for ordinary marine intoxication. Non-appealable. Nacka 13 April 2004 matter B 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 alcohol he was found to have an exhalation alcohol content of 0.40 mg/litre (0.8 /oo blood alcohol). 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 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 coastguard boat had driven out there. Tested for alcohol he showed an alcohol exhalation concentration 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 , Svea AC4 Jan matter B , SC 8 April 2005 matter B 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 officer 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 difficult 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 deserves 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 matter B , Svea AC 9 Dec matter B , SC 2 March 2005 matter Ö 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 particularly 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 Effect on liability for contributory fault, see Grounding and collision Gross marine intoxication (presumed at above 1 /00 blood alcohol) Stockholm 9 Jan matter B , Svea AC 26 March 2004 matter B 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 alcohol). 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 , found no likelihood for the coastguards both having been mistaken and sentenced J to one month s prison for gross marine intoxication. Appealed to SC, matter B , recalled. Falun DC 28 Jan matter B , Svea AC 4 Jan matter B , SC 22 March 2005 matter B 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 matter B , Svea AC 30 April 2004, matter B 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 intoxication was gross (which normally requires 1 /oo) the DC cited the preparatory works indicating 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