Sweden - International Encyclopaedia of Laws

Sweden 

by Hugo Tiberg 

Johan Schelin 

2009 

Transport Law – Suppl. 26 (February 2009) Sweden – 1

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Printed in Great Britain. 

Sweden – 2 Transport Law – Suppl. 26 (February 2009)

The Authors 

Hugo Tiberg, born in 1929, is the former professor of 

maritime and transport law at Gothenburg University 

and of private law at the Stockholm University. He has 

a long experience of maritime law, both theoretically 

and practically. 

Johan Schelin, born in 1966, works as associate professor 

in private law at the University of Uppsala and is 

also special adviser at the Ministry of Justice. He is 

also the director of the Axel Ax:son Johnson Institute 

of Maritime Law and other Transport Law at Stockholm 

University. He has also acted as arbitrator in cases 

on transport law. 


The Authors 


Table of Contents 

The Authors 3 

List of Abbreviations 13 

Preface 16 

General Introduction 17 

§1. General Background of the Country 17 

I. Geography and Demography 17 

II. Political System 17 

§2. General Introduction Relating to Transportation 18 

I. Inland Waterways and Ports 19 

II. Railroads 20 

III. Road Systems 20 

IV. Airports 20 

V. Pipelines 21 

Selected Bibliography 23 

Preparatory Works to Acts etc. 25 

Table of Cases 26 

Cases Reported in ND (NJA) 26 

Other Scandinavian Cases 27 

English Cases 27 

Other Cases 28 

Part I. Introduction 29 

Chapter 1. Maritime and Transport Law 29 



Chapter 2. History of Transport Law 31 

§1. Maritime Law 31 

I. Introduction 31 

II. Antiquity 31 

III. Emerging Lex Mercatoria 31 

IV. Maritime Triangle 32 

V. Swedish Codifications 34 

§2. Other Transport Law 36 

Chapter 3. Sources of Transport Law 37 

§1. Maritime Law 37 

§2. Other Transport Law 38 

Chapter 4. Jurisdiction and Courts 39 

§1. Maritime Cases 39 

I. General Maritime Cases 39 

II. Maritime Declarations 39 

III. Average Adjuster 40 

IV. Arrest and Attachment Forum 41 

V. Administrative Decisions 41 

§2. Other Transport Law Cases 42 

Part II. Maritime Law 43 

Chapter 1. Waterways 43 

§1. Introduction 43 

§2. Law of the Sea 43 

I. Law of the Sea Convention 43 

II. Zones Recognized under UNCLOS 44 

A. Internal Waters 44 

B. External Waters 45 

C. Straits Used for International Navigation 46 

D. Contiguous Zone 46 

E. Continental Shelf and Economic Zone 47 

F. High Seas 48 

§3. Domestic Rules 48 

I. Passage under Swedish Public Law 48 

II. Internal Waters 48 



III. Passage under Swedish Private Law 50 

IV. Traffic Rules and Passage Limitations 51 

V. Charges for the Use of Waters 53 

VI. Liability in Respect of Water Areas 54 

VII. Pollution Jurisdiction 57 

Chapter 2. Vessels 60 

§1. Nationality 60 

§2. Vessel, Ship and Boat 62 

§3. Ownership and Registry 63 

§4. Mortgages and Other Real Rights 64 

I. General 64 

II. Maritime Liens 65 

III. Legal Seizure 66 

A. General 66 

B. Arrest 67 

C. Distraint 68 

§5. Sale of Vessels 69 

I. Merchant Vessels 69 

II. Pleasure Vessels 70 

III. VAT on Vessels 71 

§6. Vessel Safety 72 

Chapter 3. Master and Seamen 74 

§1. Historical Background 74 

§2. Swedish Shipping Today 78 

§3. Legal Regulation 78 

I. Applicable Rules 78 

II. Qualifications 79 

III. Employment 79 

A. General 79 

B. Obedience and Loyalty 81 

C. Hours of Work 82 

D. Wage Advantages 83 

E. Medical Care 83 

F. Repatriation 83 

§4. Master’s Special Position 84 



§5. General Appreciation 86 

Chapter 4. Vessel Owners and Operators 88 

§1. Terminology 88 

§2. Ownership 88 

I. Individual Ownership 88 

II. Corporate Ownership or Participation 89 

III. Shipping Partnerships 89 

A. General Characteristics 89 

B. Formation, Form and Function of Shipping Partnership 90 

C. Shipping Partners’ Liability 91 

§3. Liabilities 92 

I. Vicarious Liability in Contract and Tort 92 

II. Criminal Liability 94 

Chapter 5. Limitation of Shipowner’s Liability 96 

§1. Types of Limitation 96 

§2. Short History 96 

§3. Who can Invoke Limitation? 98 

§4. What Kinds of Vessels are Subject to Limitation? 98 

§5. What Claims are Limited? 99 

§6. Limitation Amounts 100 

§7. Loss of Limitation 101 

§8. Cross or Single Liability? 101 

§9. Limitation Fund 102 

§10. General Limitation and Special Limitation Schemes 102 

Chapter 6. Maritime Transport Contracts 104 

§1. General 104 

§2. Bareboat Charters 104 

§3. Time Charters 106 



I. General 106 

II. Delivery and Redelivery 106 

III. Employment 107 

IV. Hire Payment and Time Risk 108 

V. Trip Charters 109 

§4. Voyage Charters 109 


II. Time Sharing in Voyage Chartering 110 

III. Consecutive Voyages 111 

§4. Quantity Contracts 111 

§6. Contracts of Carriage 112 

§7. Cargo Documentation 114 

I. Bill of Lading Basics 114 

II. Transfer Qualities 115 

§8. Passenger Carriage 116 

Chapter 7. Carrier’s Liability for Cargo 118 

§1. Who is Liable? 118 

§2. What is the Liability? 121 

§3. Transport Liability 121 


II. Liability Period 122 

III. Goods Covered by the Rules 123 

IV. Liability Rule 123 

V. Loss Calculation 125 

VI. Limitation of Liability 125 

VII. Liability for Cargo Statements 126 

A. General Principle 126 

B. Nordic Law 126 

VIII. Delivery Liability 127 

IX. Notice of Loss and Time-bar 128 

Chapter 8. Collisions 129 

§1. Collision Avoidance Rules 129 

I. History 129 

II. The 1972 Rules 129 

III. Applicability 131 

IV. Swedish Case Law 131 



§2. Liability Rules 132 


II. Both-to-Blame 132 

III. Cross or Single Liability 134 

A. Cross Liability 134 

B. Single Liability 134 

Chapter 9. Salvage 135 


§2. History of Salvage and Sea Finds 135 

§3. Traditional Salvage Law 136 

§4. Rescue of Ships and Other Property in Danger 138 

§5. No Cure – No Pay 140 

§6. Life Rescue 142 

§7. Legal Salvage Remuneration 143 

§8. Environmental Salvage 146 

§9. Contract Salvage 147 

§10. Securities for Salvage 148 

Short Evaluation 150 

Chapter 10. Marine Insurance 151 

§1. The Insurance Market 151 

§2. Types of Marine Insurance 151 

§3. Legislation and Other Sources 152 

§4. Hull Insurance 152 

Part III. Other Transport 155 

Chapter 1. Transport by Road 155 




§2. Carriage of Passengers 156 

§3. Carriage of Goods 157 

I. The Consignment Note: Way Bill 157 

II. Rights and Obligations 157 

A. Carrier 157 

B. Sender 159 

C. Consignee 161 

III. Liability of the Carrier 162 

A. Basis of Liability 162 

B. Exoneration of Liability 163 

C. Sharing of Liability between the Claimant and the Carrier 165 

D. Compensation 167 

IV. Time Limits for Complaint and Action 169 

A. Complaints 169 

B. Actions 169 

Chapter 2. Transportation by Rail 174 

§1. Statutory Provisions: Legislation 174 




II. The Liability of the Carrier 176 

Chapter 3. Inland Navigation 178 

Chapter 4. Air Transport 179 




§4. Claims and Actions 180 

Chapter 5. Multimodal Transportation 181 


I. The Concept 181 

II. The Multimodal Problem 181 

§2. Statutory Provisions 182 



I. General Regime 182 

II. Specific Regimes 182 

A. Carriage by Road 182 

B. Carriage of Goods by Rail 183 

C. Carriage of Goods by Air 184 

D. Carriage of Goods by Sea 184 

§3. Commercial Practices 184 

Index 187 


List of Abbreviations 

AC Appeal Court 

BIMCO Baltic International Maritime Conference 

B/L Bill of Lading 

CIM Convention on Carriage of Goods by Rail 

CLC Civil Liability Convention 1969 

CMI International Maritime Committee 

CMR Convention on International Carriage of Goods by Road 1956 

COGSA Carriage of Goods by Sea Act 

COLREG Collision Regulations 1972 

COTIF Convention on International Carriage by Rail 1980 or 1999 

C/P Charterparty 

DC District Court 

DH Supreme Court of Denmark 

EC European Community 

ETL European Transport Law 

EU European Union 

HELCOM Helsinki Commission 

HNS Hazardous and Noxious Substances Convention 1986 

HR Hague Rules, 1924 

HVR Hague-Visby Rules, 1968 

ICA Insurance Contract Act 

IMCO Intergovernmental Maritime Consultative Organization 

IMO International Maritime Organization 

ISM International Safety Management 

LMCLQ Lloyd’s Maritime and Commercial Law Quarterly 

LOF Lloyd’s Open Form 

MARPOL Convention on Maritime Pollution 1973 

MC Maritime Code 

ND Nordic Maritime Cases 

NH Supreme Court of Norway 

NJA Cases from the Supreme Court 

NSAB Nordic Standard Conditions on Freight Forwarding 

NtM Notice to Mariners 

P & I Protection and Indemnity 

PSSA Particular Sensitive Sea Area 

PWC Personal Water Craft 

SAA Ship’s Articles Act 



SC Supreme Court 

Sc.St.L Scandinavian Studies in Law 

SDR Special Drawing Rights 

SEK Swedish Kronor 

SH Supreme Court of Sweden 

SIKA Swedish Institute for Transport and Communication Analysis 

SJÖFS Regulations of the Maritime Administration 

SmA Seamen’s Act 

SMC Swedish Maritime Code 

SOLAS Safety of Life at Sea 

SOU Swedish Official Inquiries 

STCW Standards of Training, Certification and Watchkeeping 1986 

SvJT Svensk Juristtidning 

SWB Sea Waybill 

SøHa Maritime and Commercial Law Court 

TAP Temporary Employed Personnel 

T/C Time Charterparty 

TMLJ Tulane Maritime Law Journal 

UfR Ugeskrift for Retsvæsen 

UNCITRAL United Nations Commission on Trade Law 

UNCLOS United Nations Convention on the Law of the Sea 

V/C Voyage Charterparty 

VLCC Very Large Crude Carrier 

VSA Vessel Safety Act 

VSO Vessel Safety Ordinance 




Preface 

This volume represents an attempt to describe and analyze Swedish maritime and 

transport law. However, since the maritime and transport law are to a large extent 

uniform in Scandinavia references are also made to the case law and the legal 

doctrine in Denmark, Finland and Norway. Professor Hugo Tiberg is responsible 

for part I (introduction) and II (maritime law). Johan Schelin is responsible for the 

general introduction and part III on other transport. The texts reflects the position of 

the of 1 July 2008. 

Stockholm, July 2008. 

Hugo Tiberg 

Johan Schelin 


General Introduction 


1-4 

§1. General Background of the Country 

I. Geography and Demography 

1. Sweden is one of the Scandinavian countries in the northern part of Europe. 

It covers an area of 449,964 square kilometres and has a coastline on the Baltic Sea 

as well as the North Sea and land frontiers of 2,205 kilometres bordering Finland 

and Norway. 1 The capital of Sweden is Stockholm. Other important major cities are 

Gothenburg, Malmö and Uppsala. 

1. Statistics Sweden 2008. 

2. In 2008 the country had 9,182,927 inhabitants. 1 An absolute majority of the 

population has got Swedish as their native language. Small minorities has got either 

Lappish, Finnish or Romany as their native language. 


II. Political System 

3. The Swedish Constitution was enacted in 1973. According to the Constitution 

Sweden is a democracy with a parliament that consists of 349 members. The 

country is governed by the Government, which is lead by the Prime Minister. The 

Head of the State is the one of the members of the royal family Bernadotte, for 

the time being King Carl XVI Gustaf. The Head of the State has got no political 

power, the Prime Minister is for example elected directly by the Parliament after 

consultations lead by the chairman of the Parliament. The Head of the State does 

not sign the acts of the Parliament either. Parliament elections generally takes place 

every fourth year. 

4. Under the Government there are several ministries. The Ministry of Enterprise 

is responsible for the laws of the transport sector, except for the regulation 

regarding the maritime code and laws on the liability of the air, rail and road 

carriers. Those are dealt with by the Ministry of Justice. Under the Government 

there are a number of administrations, like for example the Ship Inspection Agency, 

the Civil Aviation Administration (Luftfartsstyrelsen), the Swedish Rail Road Agency 

and the Road Inspection Agency (Trafiksäkerhetsverket) which are responsible for 


5-6 


the safety regulation and inspection. Those Administrations will enact detailed 

general regulations regarding for example safety, manning, working hours, etc., and 

they will also take decisions in certain matters under their competence, for example 

will the Rail Road Administration grant companies the right to act as railroad 

operators on the Swedish rail road net. The Swedish Maritime Administration 

(Sjöfartsverket), the Civil Aviation Agency (Luftfartsverket), the Swedish Road 

Administration (Vägverket) and the Swedish Rail Road Administration (Banverket), 

are responsible for the infrastructure of the different transport sectors. For example 

the Civil Aviation Agency manages all the State-owned airports. An interesting thing 

here is that, unlike in many countries on the European Continent, the responsible 

Minister has no right to in advance prescribe what the decisions of the Administrations 

should be in certain cases. In that respect the Administrations are independent. The 

Minister is only allowed to govern the Administrations through general legislation. 

Of course a citizen affected by a decision may make a petition about it to either an 

Administrative Court or to a Higher Administration, in certain cases the Government. 

5. Mainly there are two types of courts in Sweden, general courts and administrative 

courts. In addition to this there are some special courts, like for example the 

Labour Court. The lowest general court is the District Court (Tingsrätt). There are 

fifty-five of them. Then there are six Appeal Courts (Hovrätt) and the Supreme Court 

(Högsta domstolen). The administrative courts consist of County Courts (Länsrätt), 

Administrative Courts of Appeal (Kammarrätt) and the Supreme Administrative Court 

(Regeringsrätten). The general courts have competence in cases regarding private 

law and criminal law, while the administrative courts are competent regarding 

decisions taken within the administration, for example tax decisions. The general 

court system applies fully for claims concerning air, road and rail transport. For 

maritime claims there are certain special fora and rules. Here there are six District 

Courts that are appointed so called Maritime Courts. Those are the District Courts 

of Luleå, Sundsvall, Stockholm, Kalmar, Malmö, Gothenburg and Karlstad on 

Lake Vänern. At each of these courts, a particular division is engaged as Maritime 

Court, although most of their business is other matters. The Maritime Courts are 

competent as first instance in maritime cases. The cases may be appealed to the 

general appeal courts and then to the Supreme Court. 

§2. General Introduction Relating to Transportation 

6. The transport sector is a key sector in Sweden because of the fact that the 

country is heavily dependent on its export trade. Most of the goods produced in 

Sweden are exported to the European Continent, the most important trading partners 

are Germany, Norway, United Kingdom, Denmark and the United States. 1 

Traditionally the most important goods that are exported are forest products like 

wood, pulp and paper, but also large amounts of iron ore and steel are exported. 

There are also companies that are exporting machinery, lorries and cars. During 

the last decade medical preparations and telecom equipment have also become 

important export products. While forest products, iron ore, steel, machinery and 

cars are usually transported by sea, telecom equipment is usually transported by air. 


General Introduction 7-12 


7. Regarding inland transports the truck plays an important role. Sweden is a 

country with very long distances and the railroad net does not cover the whole 

country. The truck is also considered to be more flexible than the railroad. 

I. Inland Waterways and Ports 

8. The Inland Waterways of Sweden are of minor importance except for 

the traffic on the lakes Vänern and Mälaren. In Vänern and Mälaren, which are 

connected to the sea by the river Göta Älv and by the canal in Södertälje respectively 

there are some bigger ports. 

9. The ten most important ports in Sweden are: 1 

Port 

Goods (1,000 tons) 

Gothenburg 32,965 

Brofjorden, Scanraff 17,790 

Trelleborg 9,849 

Helsingborg 7,430 

Luleå 6,812 

Malmö 6,449 

Stockholm 4,923 

Oxelösund 4,720 

Karlshamn 3,932 

Norrköping 3,929 


10. Through the port of Gothenburg, which is the far most important harbour in 

Scandinavia, a lot of general cargo is imported and exported. A part of the cargo is 

transported further to Norway and Finland by rail or by road. In that respect the 

port of Gothenburg serves as transport hub in Scandinavia. However, the number of 

intercontinental ocean lines using the port of Gothenburg has decreased in recent 

years. There are now more and more feeder traffic to and from bigger ports like 

Hamburg, Rotterdam and Antwerp, since the costs for transshipment of the cargo 

have decreased as a result of the containerization. 

11. Goods that are carried to and from the other ports are most often bulk cargo 

like crude oil, coal and forest products. In the port of Brofjorden oil and other chemical 

products are handled. Scanraff is the biggest refinery in Sweden. Also in other ports 

like for example Stockholm and Luleå a significant amount of oil is handled. 

12. Regarding passenger traffic the ports of Göteborg, Helsingborg, Trelleborg 

and Karlskrona have got ferry lines to the European Continent. From Gothenburg 


13-16 


there is also a ferry line to Great Britain. From the port of Stockholm there are ferry 

lines to Finland, Russia and the Baltic States. 

II. Railroads 

13. The absolute majority of the Swedish Railroad net is owned by the State 

and managed by the Rail Road Administration (Banverket). Regarding the carriage 

of goods and passengers the rail road sector has to a large extent been deregulated, 

especially the sector for transportation of goods. There are now two State-owned 

operators in the form of two companies, Statens Järnvägar (SJ) for passenger traffic 

and Green Cargo for carriage of goods. In addition to this there exist a number of 

private operators both in the passenger and the cargo sector, like for example 

Hector Rail, BK Tåg and Tågkompaniet. 1 The total length of the rail road lines was 

11,020 kilometres. 2 In the year 2006, 159 million passengers and 64,9 million tons 

of goods were transported by rail. 3 Most of the goods transported by rail are bulk 

cargo like for example chemicals, paper, iron ore and forest products. Regarding 

general cargo white wares are often carried by rail. 

1. According to SIKA Statistics 2008:2 there were 26 private operators in the railroad and subway 

sector. 

2. SIKA Statistics 2008:2, A1. 

3. SIKA Statistics 2008:2, D2 and D5. 

III. Road Systems 

14. In the middle of the twentieth century carriage of goods and passengers 

by road replaced the railroads as the far most important transport mode within 

Sweden. The standard of the road system was increased after World War II and that 

resulted in that the pattern of the transport of goods changed. The goods were now 

transported door-to-door. In the year 2002 there were 422,000 kilometres of roads 

open to public traffic. The road system consists of European highways, national 

highways and provincial roads. The number of Swedish registered trucks and vans 

were 480,000 in 2006 and 360 million tons of goods were transported by road in 

2007. 1 

1. SIKA Statistics 2007:6, 1 and 2008:13, 1. 

15. The biggest trucker are DHL (former ASG-Danzas) and Schenker (former 

BTL), however the majority of the trucker are small companies, usually with only 

one truck. 

IV. Airports 

16. Sweden has got several international and national airports. The most 

important ones are Arlanda and Bromma in Stockholm, Landvetter in Gothenburg 


General Introduction 17-18 

and Sturup in Malmö. The biggest airports are all managed by the Civil Aviation 

Administration (Luftfartsverket). All together 14 million passengers embarked and 

disembarked in domestic traffic in 2007. 1 The corresponding number of passengers 

in international traffic was 20 million 2 214,000 tons of goods were carried by air in 

2007. 3 

1. SIKA Statisitics 2008:12, 4.3. 

2. Ibid. 

3. SIKA Statistics 2008:12, 4.5. 

17. The biggest operator is the state-owned Scandinavian Airlines System (SAS). 

SAS is a member of the Star Alliance group. In addition to this there are also a 

number of smaller companies that operates both international and domestic lines, 

like for example Malmö Aviation and Skyways. 

V. Pipelines 

18. There are no pipelines of national importance in Sweden. 


Selected Bibliography 

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till Kurt Grönfors, Stockholm, 1991, 9-28. 

Bengtsson, B. & Strömbäck, E., Skadeståndslagen – En kommentar, 3rd edn. 

Stockholm, 2008. 

Bull, H.J., Innføring i veifraktrett, 2nd edn, Oslo, 2000. 

Falkanger, T., Leie av skib: Rettslige studier i bare-boat certepartiets problemer, 

Oslo, 1969. 

Falkanger, T. & Bull, H.J., Innføring i sjørätt, 5th edn, Oslo, 1999. 

Grenander, N., Studier rörande redareansvarets legala begränsning: akademisk 

avhandling, Stockholm, 1953. 

Grönfors, K., Allmän transporträtt: kortfattad lärobok, Stockholm, 1965. 

Grönfors, K., Inledning till transporträtten, Stockholm, 1984. 

Hellner, J. & Johansson, S., Speciell avtalsrätt II: kontraktsrätt, 3rd edn, Stockholm, 1996. 

Hellner, J. & Johansson, S., Skadeståndsrätt, 6th edn, Stockholm, 2000. 

Hill, D.J. & Messent, A.D., CMR: Contracts for the International Carriage of 

Goods by Road, London, 1984. 

Honka, H., New carriage of goods by the sea: the Nordic approach including 

comparisons with some other jurisdictions, Åbo, 1997. 

Johansson, S.O. & Sandström, J., Dispasch vid båtförsäkring – ett tillrättaläggande, 

SvJT 1999, 998-1000. 

Ramberg, J., ‘The Law of Carriage of Goods: Attempts at Harmonization’, ETL 

(1974): 2-43. 

Rune, C., Partrederiet – en mänsklig företeelse i process exekution, Festskrift till 

Knut Rodhe: studier i krediträtt och associationsrätt, Stockholm, 1976. 

Sandström, J., Befälhavareavtal och sjöpanträtt, (Skrifter utgivna i samverkan med 

Sjörättsföreningen i Göteborg av Handelshögskolan i Göteborg) Göteborg 1969 

[cit Sandström, Befälhavareavtal och sjöpanträtt]. 

Schelin, J., Bekvämlighetsflagg och arbetsförhållanden, Uppsala, 1997. 

Schelin, J. Last och ersättning: en studie av fraktförarens rätt att begränsa 

ersättningen för lastskador vid inrikes vägtransporter, Stockholm, 2000. 

Schelin, J. Lastskadekravet, Stockholm, 2001. 

Schelin, J. On the Interpretation of Off-hire Clauses – The ‘Arica’, Modern Law of 

Charterparties, Stockholm, 2003. 

Schelin, J. Documents, Transportrecht 2004, 294-297. 

Schelin, J. Documents under the UNCITRAL Draft Instrument on Carriage 

of Goods by Sea, Maritime and Transport Law, Scandinavian Studies in Law, 

Stockholm, 2004, 191-199. 


Selected Bibliography 

Schmidt, F., Huvudlinjer i svensk frakträtt, 2nd edn, Stockholm, 1962. 

Sjöberger, P., Tonnagebaserad skatt – bra för både näring och samhälle, Svensk 

Sjöfarts Tidning 2002, No. 6, 32-33. 

Solvang, T., Haverert sjølov? En replikk, SvJT 1995, 369-373. 

Solvang, T., Haverert sjølov? En duplikk til Hugo Tiberg, SvJT 1995, 759-763. 

Statistical Yearbook of Sweden 2003, Stockholm, SCB 2003. 

Sundberg, J., Om ansvaret för fel i lejt gods, Stockholm, 1966. 

Tiberg, H., Om ansvar för skada på fartyg i kontraktsförhållanden, (Skrifter utgivna 

i samverkan med Sjörättsföreningen i Göteborg av Handelshögskolan i Göteborg) 

Göteborg, 1962. 

Tiberg, H., Konossement och fraktavtal, Festskrift till Håkan Nial: studier i civilrätt 

och internationell rätt, Stockholm, 1966, 504-530. 

Tiberg, H. Kreditsäkerhet i fartyg, Stockholm, 1968. 

Tiberg, H., Båtjuridik, Stockholm, 1973. 

Tiberg, H., Carrier’s Liability for Misstatements in Bills of Lading, Grönfors, K., 

Maritime Fraud, (Skrifter utgivna i samverkan med Sjörättsföreningen i Göteborg 

av Handelshögskolan i Göteborg) Göteborg, 1983, 71-94. 

Tiberg, H., ‘Oil pollution of the sea and the Swedish “Tsesis” decision’, (1984): 

218-226. 

Tiberg, H., Varning för engelsk försäkring, På Kryss, 1984, No. 5, 6, 9-11. 

Tiberg, H., Vad är allmän farled?, På Kryss, 1987, No. 1, 22-23. 

Tiberg, H., Svensk sjörätt: fartyget, Stockholm, 1989. 

Tiberg, H., Befälhavarskap på nöjesbåtar igen, SvJT 1992, 409-412. 

Tiberg, H., Mysteries of Water Boundaries: Baselines and Boundaries around 

Sweden’s Coasts, Current International Law Issues: Nordic Perspectives: Essays 

in honour of Jerzy Sztucki, Stockholm, 1994, 195-217 [cit Tiberg, Mysteries of 

Water Boundaries]. 

Tiberg, H., Havererad sjölag, SvJT 1995, 89-111. 

Tiberg, H., Styckegodstransport enligt nya sjölagen, SvJT 1995, 23-351. 

Tiberg, H., Havererad sjölag – replik på en replik, SvJT 1995, 522-524. 

Tiberg, H., Båtmål och rätt, SvJT 1995, 726-743. 

Tiberg, H., ‘The Nordic Maritime Code’, LMCLQ (1995): 527-537. 

Tiberg, H., The Law of Demurrage, 4th edn, London, 1995. 

Tiberg, H., Slutreplik på styckesgodsbefordran, SvJT 1996, 171-173. 

Tiberg, H., ‘The Nordic Maritime Code once again’, LMCLQ (1996): 413-415. 

Tiberg, H., Factortame II, Rättsfall att minnas: till Jan Hellner den 28 oktober 

1997, Stockholm, 1997, 393-399. 

Tiberg, H., Dispasch vid båtförsäkring, SvJT 1998, 844-850. 

Tiberg, H., ‘Legal Qualities of Transport Documents’, TMLJ 23 (1998/1999): 1-44. 

Tiberg, H., Attraktivt med drivved i dispaschfållan, SvJT 1999, 1001. 

Tiberg, H., EG-moms på fartyg, Festskrift till Ulf Bernitz, JT, Stockholm, 2001, 

145-154. 

Tiberg, H., ‘Swedish maritime law 2000-2001’, LMCLQ (2002): 544-566. 

Waldersten, B., Köp och försäljning av transporter på väg, Stockholm, 1990. 

Wetterstein, P., Nöjesbåten: juridiska frågor, Åbo, 1988. 

Wetterstein, P., Grov vårdslöshet vid vägtransporter – än en gång, Tidskrift utgiven 

av Juridiska föreningen i Finland, vol. 138 (2001): 721-735. 


Preparatory Works to Acts etc. 

SOU 1987:27 Skeppslega till utlänning: tillstånd, dispenser, flaggskifte: betänkande 

av Skeppslegoutredningen. 

SOU 1990:13 Översyn av sjölagen: betänkande. 2 Godsbefordran till sjöss: 

slutbetänkande. 

Prop. 1995/96:140 Sveriges ratifikation av Förenta Havsrättskonventionen av den 

10 november 1982 och avtalet av den 28 juli om tillämpningen av konventionens 

del XI. 

SOU 2002:4 Gränsövervakning under höjd beredskap: betänkande av 

Gränsövervakningsutredningen. 

Prop. 2002/03:109 Sjösäkerhet. 

SOU 2003:72 Havet – tid för en ny strategi: betänkande av Havsmiljökommissionen. 

Forum i tvistemål: promemoria V från Domstolsverkets arbetsgrupp för 

processrättsliga frågor, Jönköping 2003. 


Table of Cases 

Cases Reported in ND (NJA) 

ND 1909, p. 279 

ND 1925, p. 346 (NJA 1925, p. 346) 

ND 1925, p. 622 (NJA 1925 A 539) 

ND 1930, p. 22 (NJA 1930 A 95) 

ND 1948, p. 293 (NJA 1948, p. 611) 

ND 1949, p. 596 

ND 1958, p. 224 (NJA 1958, p. 351) 

ND 1960, p. 349 (NJA 1960, p. 724) 

ND 1967, p. 314 SCF 

ND 1972, p. 293 

ND 1974, p. 86 

ND 1975, p. 392 SCN 

ND 1976, p. 59 

ND 1976, p. 378 SCN 

ND 1977, p. 17 SCS 

ND 1977, p. 23 SCS 

ND 1977, p. 326 

ND 1978, p. 16 

ND 1978, p. 103 SCS 

ND 1978, p. 164 

ND 1978, p. 350 (NJA 1978, p. 418) 

ND 1981, p. 1 

ND 1982, p. 130 SCF 

ND 1983, p. 1 (NJA 1983, p. 3) 

ND 1983, p. 62 FH 

ND 1983, p. 309 NV 

ND 1984, p. 264 

ND 1985, p. 212 

ND 1986, p. 27 SH 

ND 1987, p. 64 

ND 1987, p. 108 DH 

ND 1988, p. 9 (NJA 1988, p. 440) 

ND 1988, p. 19 

ND 1992, p. 148 SøHa 

ND 1994, p. 50 SøHa 



ND 1995, p. 66 

ND 1995, p. 68 SCF 

ND 1995, p. 238 NH 

ND 1996, p. 123 SøHa 

ND 1996, p. 161 VL 

ND 1996, p. 172 VL 

ND 1997, p. 167 

ND 1998, p. 226 NH 

ND 1999, p. 51 

ND 1999, p. 94 

ND 2000, p. 1 

ND 2000, p. 179 

ND 2001, p. 6 

Other Scandinavian Cases 

NJA 1974, p. 616 

Rå not Ba-70/83 

NJA 1987, p. 885, ‘Nervion’ 

NJA 1988, p. 221 

AD 1989, p. 120 

NJA 1996, p. 211 

Stockholms TR, T 4-1876-93 (unpublished) 

RH 1998:7 

UfR 2000.1400 SøHa 

Finnish case, Appeal Court of Kouvola, 2 mars 2000 (unpublished) 

HovR för västra Sverige, 29 mars, Ö 2137-00 (unpublished) 

Svea HovR, 10 jan 2001, Ö 7799-00 (unpublished) 

Svea HovR, 18 feb 2001, T 1156-99 (unpublished) 

KamR i Gbg, 19 april, 2001 (unpublished) 

HD, 23 maj 2001, Ö 1522-01 (unpublished) 

NJA 2001, p. 155 

Malmö TR, 6 mars 2002, ‘Nestor’, T 1863-02 (unpublished) 

Stockholm TR, 15 juli 2002, T 111513-02 (unpublished) 

Svea HovR, Ö 4158-02 (unpublished) 

Svea HovR, Ö 4173-02 (unpublished) 

HD, 28 okt 2003, Ö 4407-00 (unpublished) 

English Cases 

Tojo Maru [1971] 1 Lloyd’s Rep. 341 

Thermo Engineers v. Ferrymasters [1981] Lloyd’s Rep. 200 Q.B. 

The Goring [1988] 1 Lloyd’s Rep. 397 HL 

Shell Chemicals U.K. v. P & O Roadtanks Ltd. [1993] 1 Lloyd’s Rep. 114 Q.B. 

Nagasaki Spirit [1997] 1 Lloyd’s Rep. 323 



Berge Sisal [2001] Lloyd’s Rep. 663 

Rafaela S., CS [2003] 2 Lloyd’s Rep. 113 

Other Cases 

Allen v. Coltart (1883) I QBD 7822, 785 

Corfu Channel Case, International Court of Justice, 9 April 1949 

Factortame II [1991] ECR I 3905 


Part I. Introduction 

19-21 

Chapter 1. Maritime and Transport Law 

19. The place of maritime law within the field of transport law may be viewed 

in various ways, and the present exposition of Swedish law is based on the following 

classification. 

Road Law 

Railway Law 

Maritime Law 

Air Law 

Multimodal 

General Part 

Special Part 

(Ways/Means 

Of Transport) 

Road 

transport law 

Establishment 

vehicles, 

traffic etc. 

Railway 

transport law 

Establishment 

tracks, rolling 

stock, traffic 

Sea 

transport law 

Shipping law 

(Waters, 

ships, etc.) 

Air transport 

law 

Establishment 

aircraft, 

competition 

etc. 

Law of 

multimodal 

transport 

Container, 

ro-ro, lash 

etc. 

20. In the law of transport, the general part is that dealing with the actual 

carriage, contracting, liabilities and so on, which is usually regarded as the central 

part of transport law. The special part is that dealing with ways and means of 

transport and is of vital importance to the carriers themselves, particularly performing 

carriers. It is the practice in Swedish teaching, and the intention in this 

account, to concentrate the presentation of the special part to that dealing with 

maritime law as a model for questions arising also in the other transport areas. 

There will, consequently, be much stress on the special part of maritime law 

but little of the corresponding questions in the special parts of the road, railway and 

air law. 

21. A few words are appropriate concerning the means of transport distinguished 

above. Road, railway, maritime and air law are well-recognized means that 

are all subject to specific transport legislation based on international conventions. 

In Continental law, inland water transport is often distinguished as a particular form 

of transport, but this is not the case in Scandinavia, where all waterborne carriage is 

subject to the same maritime legislation whether the route is over sea, coastal or on 

inland waterways. These transports will therefore be covered under the head of 

maritime law, although some particular customs and practical aberrations will be 

noted in passing. 


22-25 Part I, Ch. 1, Maritime and Transport Law 

22. The law of combined or, in the present vogue, multimodal transport 

does not concern a ‘means’ of transport but is a well-recognized special discipline, 

that cuts through the branches and requires special solutions. The special UN 

convention of 1980 agreed for such carriage never came into force, but the subject 

remains important in international discussions and merits a special place. For 

example the new United Nations Commission on Trade Law (UNCITRAL) 

Convention on international carriage of goods by sea also covers the liability of 

land legs ancillary to the maritime leg. The same is true with the Convention on 

International Carriage of Goods by Rail from 1999 (COTIF 1999). 

23. In the special part of maritime law (here, shipping law) the Maritime 

Code deals in some detail with vessels, owners, personnel, collisions, liabilities and 

special institutions like salvage, which will all receive consideration in this work. 

A matter not treated the Maritime Code and seldom noted in maritime treatises 

concerns the waters in which vessels sail. Questions concerning such waters have 

both international and national law impact and will be considered under both these 

heads. 

24. Although marine insurance is a separate subject in the Swedish curriculum, 

a short presentation has been considered essential for the understanding of the 

maritime issues and is included in the shipping law part. 

25. General average is a particular division of loss between mainly ship 

and cargo. While this is often referred to the special part of maritime law, it is 

connected with the carriage of cargo and will be deferred to the general part dealing 

with such carriage 


26-30 

Chapter 2. History of Transport Law 

§1. Maritime Law 

I. Introduction 

26. Maritime law through the years has been unified to a much greater extent 

than most other parts of the law. Today the tool for unification is international 

conventions, i.e., agreements between States on common legislation, which the 

participating States (usually called ‘Member States’) bind themselves to implement 

through national legislation. Conventions have actually regulated relations between 

nations from antiquity. But they used to be bilateral, or – as peace treaties – with 

few participants. The multilateral conventions which we know today on matters 

of general interest for the world, aiming at common legislation, is a creation of 

modern internationalism. 

II. Antiquity 

27. However, there were common rules in other forms in earlier ages. The 

Greek island States of antiquity developed rules which were much akin especially 

in the shipping area. One of them has become known as ‘Lex Rhodia de Iactu’ – the 

Rhodes Law of Jettison’ – though it was really a principle of all the islands and not 

specifically Rhodes. 

28. Under Rome, the common regulation of the Maritime Law depended mostly 

on the primacy of the Imperial Power. Roman law was recognized as superior to 

others and prevailed throughout the Empire. Thus the law of maritime finance was 

based on the Roman phoenus nauticus, or sea loan, which was in effect a kind of 

risk sharing by which a lender agreed, against a high rate of interest, not to be 

repaid if the ship and/or goods were lost. But other parts of the Roman sea law 

were of Greek origin, and thus the Roman emperor Antoninus Pius could say that 

‘I am indeed Lord of the World, but the Lord of the Sea is the Law’, by which he 

meant the so-called Rhodian law which was largely a loan from the Greeks. 

III. Emerging Lex Mercatoria 

29. In Medieval times common rules were often elaborated by private compilers; 

this was the case with the famous Consulat del Mar from the thirteenth 

century or the somewhat later Rôles d’Oléron from an island of that name outside 

the estuary of the Garonne River. These compilations were based on decisions 

passed by various courts and were accepted for want of other norms in the area of 

maritime law. 

30. The so-called Lex Mercatoria emerging about the end of the Middle 

Ages created rules recognized all over Europe and ‘codified’ in various written 


31-35 Part I, Ch. 2, History of Transport Law 

compilations, whereof the ‘Visby Maritime Code’ from the city on the Swedish 

island of Gotland has become particularly famous. The law was administered 

by Merchants’ Courts, which were generally separate from the Royal Courts that 

administered the general law of the respective country. The merchants’ activities 

knew no borders, and their courts developed rules and principles known and acted 

upon throughout the Western world. 

IV. Maritime Triangle 

31. One central aspect of the Lex Mercatoria may be described as a ‘maritime 

triangle’ where three issues are tied together into a peculiar maritime concatenation 

of agency powers, security and a limited liability. As a background, imagine a 

Swedish ship coming to Antwerp. The master needs funds for repairs or replacing 

an absconded crew or other purposes, or the vessel has caused damage by sinking 

another. Such acts gave rise to duties of repayment or compensation, and the master 

of the ship was early recognized as the person to turn to, though of course he would 

bind the ship owner behind him. So also, the ship owner was bound by the faults 

and negligence of the crew and responsible for putting right the damage that they 

might cause. 

32. Thus at the top of our ‘maritime triangle’ we write in the master’s power to 

bind his ship owner and the latter’s vicarious liability for the faults of the master 

and crew, tentatively ‘vicarious liability’. 

33. But the Antwerp lender or owner of the sunken ship were not really much 

interested in getting a claim against an unknown ship owner in a far-off country 

like Sweden. They rather looked to the ship and other manifest property of the 

owner, and so the principle was founded that the claim against the owner was 

secured by a claim directly against the ship – i.e., in rem. And in addition to the 

ship they would look to other property such as the cargo and the freight due for it. 

So the next time the vessel would come to the Lowlands without the claims having 

been met, they would seize the ship owner’s ‘maritime fortune’ and appropriate it, 

or sell it, in satisfaction of their claims. 

34. So at the left hand of the base of the triangle we write ‘maritime lien’. 

35. Indeed the creditors in the international trade of those days were so 

unconfident about personal claims against foreign ship owners that they were 

prepared to forego them, and thus there developed the practice of ‘abandonment’ 

of the ‘maritime fortune’ through which the ship owner liberated himself of his 

personal liability. This was later transformed into an ‘execution’ rule under which 

enforcement of certain claims was permitted only in the ‘maritime fortune’; 

the ship owner, as the term went, was liable ‘with ship and freight’, and correspondingly 

where the cargo owner contracted liability of a corresponding kind, it 

was ‘with his cargo’. 


Part I, Ch. 2, History of Transport Law 36-38 

36. We can now fulfil our little sketch by adding at the right side of the base, 

say, ‘limitation’. 

37. Of the three corners of the triangle, the top remains today more active than 

even at the origin: the ship owner’s liability for the torts of his servants and for 

fulfilment of the contracts of his master remains and is now a practical reality. The 

liability in rem at the left bottom corner has turned for the most part into the 

maritime lien recognized by particular conventions in all maritime countries, while 

the abandonment principle has turned onto the various limitation rules, under which 

a ship owner does not pay fully for damage that his ship may cause but only up to 

a ceiling depending on the ship’s size or burthen. This principle has been an 

obstruction to all attempts to rationalize shipping law and bring it into line with 

other parts of the legal system. In any event, this completes our present maritime 

triangle: 

Traditionally, the three have belonged together, so that if a particular shipmaster’s 

contract binds the ship owner, it is also endowed with the maritime 

lien and subject to ship owner limitation. One important characteristic for a 

master’s contract to bind the ship owner is that it must have been made outside 

the ship’s home port in reliance of the master’s legal agency power and thus 

without interference by the ship owner, whose personal contracts are binding 

on him like any other personal contracts. Although this interdependence of the 

three points of the triangle has since been broken up, with a growing realization 

that the whole construction is no longer based on realistic considerations, 

it remained unchallenged for a long time. 

38. This may be exemplified by the 1954 Swedish case of the steamship Väring 

(reported only in my book Credit Security in Ships, Kreditsäkerhet i fartyg, 1968), 

which put into Rotterdam to have a new boiler installed, the boiler being an expensive 

piece of machinery worth a large part of the total value of the ship. Before payment, 

the ship owner went bankrupt and the ship was sold in a forced auction. At the 

distribution of the proceeds the yard claimed that the master had personally ordered 

the installation of the boiler, which the bankrupt ship owner gladly confirmed. On 

this ground the instalment claim was granted the status of a maritime lien, which 

involves priority for the lien creditor (lienor) in the proceeds of the sale. Other 

creditors, particularly the mortgagees (banks or other moneylenders having mortgages 

or hypothecs in the vessel) were postponed and largely lost their right of payment. 



39. It must be realized that the idea of the master making this kind of contract 

is completely unrealistic. In 1954 it was perfectly easy for a ship owner to lift his 

telephone receiver and call the Netherlands to make the agreement himself, and he 

was by no means dependent upon the master to make contracts of any importance. 

Clearly, the master cannot have made this important contract on his own, but the 

creditors were unable – or not knowledgeable enough – to challenge the contention 

on which the yard and ship owner were agreed. 

40. Together with certain other time-honoured rules, such as salvage, general 

average and others with set principles, the ‘maritime triangle’ is the centre of that 

part of the maritime rules which became known in England as admiralty law 

administered by special Admiralty Courts distinct from the Common Law Courts. 

The latter emerged victorious from a conflict with Admiralty concerning the 

carriage of goods area, which in America has remained part of Admiralty while in 

Britain it is not. 

V. Swedish Codifications 

41. Thus the customs recognized by the European shipping world found their 

way into court practice and soon enough into special legislations. The first official 

legislation of large parts of the lex mercatoria was in fact Sweden’s Maritime Code 

of 1667, soon to be followed by the French Ordonnance de la Marine from the end 

of the seventeenth century. 

42. The Swedish Maritime Code of 1667 with minor amendments remained in 

force until 1864, although recognized charges had to be ranged into the priority 

order of the ‘privileges’ of the 1734 General Code. 1 Thus in ships’ cargo first 

priority was granted seamen’s wage claims, 2 while in ship’s first priority was granted 

building bonds and second priority bottomry bonds. 3 

1. Book on Commerce, Ch. 17. 

2. Ch. 17, s. 5. 

3. Section 7. The bottomry bond was a hypothecation made by the master for the ship’s needs. 

43. After the 1864 Code, Sweden with Norway, which were then in a union, 

and Denmark prepared a new Maritime Code enacted in the 1890s, in Sweden 

1891. The new Code was much influenced by the German Commercial Code of 

1875 and in principle remained in force until 1994, although the Code of that year 

is largely a blueprint of the previous law and is radically changed only with regard 

to carriage of goods by sea transport and charter parties (Chapters 13 and 14). 

44. In the transport area, no legal system could escape a strong influence from 

the English law. This area of the law continued to develop in the common law 

framework, while the special maritime peculiarities of liens and limited liability 

were let to the special Admiralty jurisdiction and remained closely dependent 

on the medieval heritage. Principles derived from the English law of transport 

have found their way into most legal systems and resulted in The Hague and 


Part I, Ch. 2, History of Transport Law 45-48 

Hague-Visby Rules that have been incorporated in the Nordic laws since amendments 

in 1936. 

45. Since the beginning of the twentieth century the Swedish maritime legislation, 

like that of most countries, has become increasingly dependent on international 

conventions. Those that first got under way were largely impelled by the needs 

of vessel safety. The first of these were the 1910 conventions on civil liability 

for collision of ships and on Collision Regulations, and there was also a salvage 

convention in the same year. In 1913, following the Titanic foundering, came the 

first Safety of Life at Sea (SOLAS) convention, which never came into force in its 

original form. The Hague Rules, originally a set of agreed rules, were made into a 

regular convention in Brussels 1924, in which year there was also a Brussels 

limitation of liability convention. In 1926 there followed the first liens and mortgages 

Convention and also immunity of State ships convention, and the following year 

SOLAS was finally under way. Much recent legislation in Sweden is based on 

European Community (EC) directives or consists of directly applicable EC regulations. 

This is likely to increase especially when the third maritime safety package 

will come into force. 

46. I will not mention all the various maritime conventions at this stage: many 

of those mentioned have been modified later, and modifications are accepted by 

some, but not other States, so that the international law in areas like ship owners, 

liability, liens and mortgages and liability in carriage of goods has really become 

quite a confused mess. But I will add that the refusal of important countries like the 

US to join in has often thwarted international efforts at unity, particularly in the oil 

pollution area, where the US was a main protagonist of the liability system of the 

so-called Civil Liability Convention (CLC) and fund conventions, but in the end 

backed out and created their own Oil Pollution Act, not having much in common 

with the solutions reached now by most other countries of the world. 

47. I should not forget to mention the law of the sea, in which the creation of 

international conventions was impelled by forceful international and political events, 

and where the four 1958 Geneva conventions had an important role in creating 

international customary law regarded as binding upon the world and even nations 

which had not subscribed to them. These conventions have now been replaced by 

the 1982 Law of the Sea Convention, which has finally come into force. More will 

be said of the specific conventions when they are specifically presented. 

48. A special kind of rule-creation, which is not technically by international 

conventions, is the contractual acceptance of agreed rules. One such example is the 

York Rules, later York Antwerp Rules of General Average, where principles 

agreed have worldwide application through reference in bills of lading forms. Other 

such examples are the original Hague Rules of 1921, customarily incorporated by 

‘paramount clauses’ in bills of lading, and the Incoterms of international sales, 

incorporated into standard or specific international sales agreements. Indeed much 

real convention work is commenced on the private level by organizations such as 

Comité Maritime International (CMI), whose draft Conventions are later brought to 



an international forum to be adopted as international conventions. This was the case 

with the new UNCITRAL (United Nations Commission on Trade Law) Convention 

on International Carriage of Goods by Sea, which was originally prepared by a 

group within the CMI. 

§2. Other Transport Law 

49. The regulation of the other transport modes is much younger. The regulation 

of railroad carriage origins from the 1860s. Today Sweden is a party to the 

Convention on International Carriage by Rail (COTIF) of 1980. It has been 

suggested that Sweden should ratify the 1999 version of the COTIF. However, it 

has not yet been done. Regarding inland carriage of goods by rail the Swedish 

Parliament enacted the Act on Railroad Traffic in 1985. Both passenger carriage 

and carriage of goods are covered by the act. 

50. As to carriage of goods by road Sweden ratified the Convention on International 

Carriage of Goods by Road (CMR) in 1969. In 1974 the Parliament 

enacted the Act on Inland Carriage of Goods by Road. This legislation is to a very 

large extent similar to the one in the CMR Convention. There is no special regulation 

on carriage of passengers except for the fact that the general Road Accidents 

Act also apply in case of accidents involving bus and coach passengers. 

51. Regarding carriage of goods by air Sweden is a party to the Warsaw 

Convention of 1929 and the Hague Protocol of 1955 as well as of the Guadalajara 

Convention of 1961. Sweden is also a party of the Montreal protocols No. I-IV and 

the Montreal Convention of 1999, the aim of which is to replace the old Warsaw 

system. The Montreal Convention is incorporated into Swedish law in Chapter 9 of 

the Act on Air Carriage of 1957. However, because of the fact that there is a 

reciprocal application of the regulation in relation to other parties to the Warsaw 

Convention, which has not ratified all of the protocols to the convention that 

Sweden has or the Montreal Convention, older legislation might still be applicable. 

For example if there is a transport between Sweden and a country which has only 

ratified the Warsaw Convention itself, but none of the protocols, it is regulated that 

the former Act on Air Carriage from 1937 still applies. 


52-55 

Chapter 3. Sources of Transport Law 

§1. Maritime Law 

52. Sweden is part of the Nordic law family, in which legislative cooperation is 

a hallmark. Sweden, Norway, Denmark and Iceland had Maritime Codes (MC) 

from the 1890s, in which Finland joined after its liberation from Russia in 1918. 

The Codes were similar in large parts and were practically identical in the affreightment 

and carriage of goods parts, which were gradually modified by common 

adoption of The Hague Rules in 1936 and the Hague-Visby Rules in 1973. In the 

early 1970s the Nordic countries took an active part in the elaboration and framing 

of the Hamburg Rules, and new chapters on chartering and carriage of goods were 

prepared in anticipation of a coming general adoption of those Rules. When in the 

early 1990s it became clear that the Hamburg Rules might not gain the expected 

support, two versions of the carriage of goods were prepared, one for the event of 

Sweden’s ratification of Hamburg and the other for the event of non-ratification. 1 

The two versions were rather similar, however, as it was considered that the Hague- 

Visby Rules by which the Nordic Countries were formally bound permitted a large 

number of deviations in the direction of Hamburg. In spite of criticism of this view 

from United Nations Commission on Trade Law (UNCITRAL), Denmark, Finland, 

Norway and Sweden chose to enact the mixed Hamburg-Hague version together 

with a new chapter on charter parties. The remaining chapters, slightly modified in 

parts, were renumbered, and all were presented as the new MC of 1994 (No. 1009). 

Amendment work has gone on, and other chapters of the Code have been modified 

or rewritten after the original enactment. 

1. See SOU 1990:13 Översyn av sjölagen 2. 

53. The Code consists of twenty-two chapters with separate section numbers 

in the Swedish and Finnish versions of the Code, while in Denmark and Norway 

the section numbering is running, throughout the Code. The Swedish Code is 

available in English translation by the Maritime Law Institute at Stockholm University 

(3rd edn 2006) and is updated periodically on the Institute’s web site. 1 

1. See . 

54. The MC deals mainly with private law, and large parts of the maritime law 

fall outside the Code. Thus the safety legislation is totally separate, with a basic 

Parliament-enacted Vessel Safety Act based on Safety of Life at Sea (SOLAS) 

setting the general framework, a Vessel Safety Ordinance decreed by the Government 

for more detailed provisions, and a large number of regulations by the Swedish 

Maritime Administration on questions requiring technical or other expert 

knowledge. 

55. A large number of detailed Conventions and European Community (EC) 

Directives are steadily being implemented by appropriate enactments. These 

include, among other things, the International Safety Management (ISM) Code 

on safety standards of ships and their owner organization and agreements such as 


56-57 Part I, Ch. 3, Sources of Transport Law 

Helsinki Commission (HELCOM) concerning measures to prevent pollution of the 

Baltic Sea. Such legislation has been presented annually in the Lloyd’s Maritime & 

Commercial Law Quarterly and now appears on the Maritime Law Institute’s abovementioned 

web site. Such legislation will be referred to currently in the following 

text. 

§2. Other Transport Law 

56. In certain countries there is also a national legislation on domestic carriage 

of goods by road and rail. These national acts on domestic carriage are often built 

on the applicable international conventions, i.e., the Convention on International 

Carriage of Goods by Road (CMR Convention) and Convention on International 

Carriage by Rail (COTIF) of 1980. Sweden is a good example of this. In addition 

to the CMR Act on international carriage of goods by road and the Act on international 

carriage of goods by rail, which directly incorporate the CMR Convention 

and the COTIF of 1980 into Swedish law, there are also special acts on domestic 

carriage of goods by road and rail. 

57. The Swedish domestic acts are to a large extent based on the international 

conventions. The main differences between the Conventions and the domestic acts 

are that there is another limitation level (SEK 150 per kilogram) and that the 

provisions on reservation and limitation of actions are adapted to the regulation in 

the national Sale of Goods Act. A difference between the CMR Convention and the 

domestic act is for example that the consignee has to make a reservation within a 

reasonable period of time instead of seven days. The consequence of the failure of 

the consignee to make a reservation is that he loses his right to compensation. 

According to the CMR Convention the consequence of this is normally that the 

consignee gets the burden of proof for that the goods were damaged during the 

transport. 


58-61 

Chapter 4. Jurisdiction and Courts 

§1. Maritime Cases 

I. General Maritime Cases 

58. The Maritime Courts are exclusively competent for civil and criminal 

matters covered by the Maritime Code (MC). 1 This does not mean that they are 

competent for all matters concerning ships or shipping, since matters arise concerning 

such interests which are not dealt with in the Code. Thus for example, while 

damage by collision between vessels is treated in Chapter 8 of the MC, a collision 

between a ship and a pier is not a maritime matter, unless it raises questions of the 

ship owner’s vicarious liability for his personnel (MC Chapter 7) or matters of 

limitation of the ship owner’s liability (MC Chapter 9). Similarly, while matters 

concerning shipping partnerships (partrederi) are dealt with in the Code (MC 

Chapter 5), matters concerning shipping corporations (rederiaktiebolag, Rederi AB) 

are not considered as maritime matters. 

59. Moreover, according to MC Chapter 21, section 1, subsection 2 matters 

exclusively concerning pleasure boats are not subject to Maritime Court mandatory 

jurisdiction, but may be tried also in the general courts. This facility is widely used 

and has become the regular practice in such cases, in spite of complaints that it does 

not only leave these specialized problems to incompetent instances, but that it also 

denudes the Maritime Courts of much of their ability to competently handle their 

maritime business. 1 Another complaint arising from the handling of these specialized 

matters by dispersed ordinary courts is the disappearance of special maritime 

prosecutors acting specifically in the Maritime Courts. With incapable prosecutors 

the matters receive insufficient penetration, which further impairs the quality of the 

judgments. 

1. See Tiberg, H., Båtmål och rätt, SvJT 1995, 726-743. 

II. Maritime Declarations 

60. According to MC Chapter 18, sections 6 to 7, a special investigation shall 

or may be instituted after various kinds of accidents involving Swedish vessels. 

Such so-called Maritime declaration is intended to clarify the causes of the event 

and to secure evidence at an early stage (MC Chapter 18 section 8). The procedure 

shall take place at the port at which the event occurred or to which the vessel 

proceeded after the occurrence (MC Chapter 18, section 9), if convenient often on 

board the vessel. The authority competent to conduct the procedure is normally the 

Maritime Court nearest to the place of the declaration, and the court consists of a 

legally competent judge and two maritime experts. 

61. For particularly serious accidents or disasters a special commission may be 

appointed to determine the cause, see the MC Chapter 18, section 20. 


62-64 Part I, Ch. 4, Jurisdiction and Courts 

III. Average Adjuster 

62. According to the MC Chapter 17, section 2, investigation and apportionment 

of general average the Swedish Government appoints an Average Adjuster. 

For a long time, only one such Adjuster has been appointed, with his office in 

Gothenburg. Besides his engagement with General Average, the Adjuster is exclusively 

competent to try marine insurance disputes in the first instance, MC Chapter 

17, section 9. The Swedish Adjusters have extended this jurisdiction to matters of 

boat insurance, though such insurance is also consumer insurance and as such is 

subject to other procedure. 1 

1. The Public Complaints Board, whose recommendations are liable to be reviewed by the 

general courts. 

63. The Swedish Average Adjuster is always learned in law and occupies a 

semi-judicial position, although he charges his fees from the insurers (see below). 

His decisions can be appealed to the District Courts – in practice the Gothenburg 

Court – and thence to the Appeal Court and the Supreme Court. However, since the 

Adjuster’s decisions are not directly enforceable, 1 The Supreme Court has held that 

he is not a court in the sense of fulfilling the former Lugano Convention’s requirement, 

2 that citizens in the Convention States are entitled to have insurance disputes 

tried by their own local court. 3 As a result of this decision the Swedish insurance 

companies have entered a clause in the 2000 Hull and Cargo Insurance Conditions 

that disputes under these conditions are submitted to the Adjuster as Arbitrator, 

though subject to appeal to the courts in the same way as his other decisions. While 

this procedure may sound odd, it has not yet been challenged in court. 

1. Tiberg, H., Dispasch vid båtförsäkring (Adjustment in Boat Insurance), SvJT 1998, 844-850, 

and Tiberg, H., Attraktivt med drivved i dispaschfållan, SvJT 1999 1001, after rejoinder by 

Johansson, S.O. & Sandström, J., Dispasch vid båtförsäkring – ett tillrättaläggande, SvJT 

1999, 998-1000. 

2. Lugano and Brussels Conventions Art. 17. 

3. ND 2000 p. 1. For non-parties to the Convention, the matter may be different. 

64. The Adjuster’s engagement with boat insurance has been much criticized 1 

and has been challenged in a number of cases. 2 The legal support has been considered 

deficient, 3 the matters often turn on the assured’s credence, which are 

not suitable subjects for the Adjuster’s determination, and the extra procedure 

in Gothenburg with further appeal to the Gothenburg courts is likely to be cumbersome 

and costly for occurrences which may have taken place, say, in far-off 

Haparanda. 

1. Tiberg, H., Dispasch vid båtförsäkring (Adjustment in Boat Insurance), SvJT 1998, 844-850, 

and Tiberg, H., Attraktivt med drivved i dispaschfållan, SvJT 1999 1001, after rejoinder by 

Johansson, S.O. & Sandström, J., Dispasch vid båtförsäkring – ett tillrättaläggande, SvJT 

1999, 998-1000. 

2. Svea Appeal Court 10 Jan. 2001 matter Ö 7799-00, Gothenburg 18 Feb. 2001, matter T 1156- 

99, Appeal Court for West Sweden 29 Mar. 2001 matter Ö 2137-00, Supreme Court 23 May 

2001 Ö 1522-01 (Aquarius II no. 2), Appeal Court for West Sweden 15 Oct. 2003 matter Ö 

450222-202. 

3. Thus particularly Tiberg, H., Dispasch vid båtförsäkring, SvJT 1998, 845-849. 


Part I, Ch. 4, Jurisdiction and Courts 65-69 

65. The insurers’ greatest complaint is the costs at the Adjuster’s. The insurer’s 

costs before the Adjuster are never awarded, regardless of whether he wins or loses, 

and the substantial Adjustment fee, usually in the order of SEK 60,000 , is covered 

only in exceptional cases. 1 A more or less irrevocable total cost in the order of SEK 

75,000 makes for settlement of claims of this order, whether justified or not, to the 

detriment of loyal premium payers. 

1. Aquarius II no. 2., in which Adjuster’s fee was charged to the assured who had brought the 

case before the Adjuster in full knowledge of having been criminally sentenced for fraud in 

respect of the purported loss; the insurer still had to bear his own procedure costs. 

66. Since the Lugano/Brussels Convention has now been transformed into 

the so-called Brussels I Ordinance, it applies within the whole Community, and the 

assured’s right of having insurance disputes decided by his own court of law enures 

in favour of all European Union (EU) citizens. In this situation the legislator seems 

finally likely to take the matter up for a formal change of the law. 1 

1. Domstolsverket, Forum i tvistemål, Promemoria V (Forum in litigation, Memorandum V), 

40-42, after previous request by Svea Appeal Court as remitted by the Ministry of Justice 

in 1997 (Ju97/2180). 

IV. Arrest and Attachment Forum 

67. Arrest is used in this presentation to denote a seizure or immobilizing of 

vessels according to the international arrest procedure, as security for a claim raised 

or about to be raised in a pending or imminent court action. A corresponding constraint 

action concerning other property is referred to as attachment and is governed 

by the Swedish Enforcement Code. Seizure for enforcement of adjudicated claims 

is referred to as distraint, whatever the property concerned. 

68. Arrest, mainly of foreign registered vessels may be obtained according 

to the 1958 Arrest Convention, which is incorporated into the MC Chapter 4 and as 

such handled by the Maritime Courts. Attachment of other property is obtained under 

the Enforcement Code and is subject to the jurisdiction of the ordinary courts, 

except to where MC questions are involved. The provisions of the Enforcement 

Code are also in part supplementary concerning the procedure in arrest cases. 

V. Administrative Decisions 

69. A large number of decisions affecting vessels are taken by administrative 

authorities and are appealed to the Administrative Courts. In particular, decisions 

concerning vessel safety and ship fairways are taken by the Swedish Maritime 

Administration, and decisions concerning duties and tax on vessels are taken by the 

customs and tax authorities and are appealed through the administrative courts with 

final appeal to the Supreme Administrative Court. 


70-73 Part I, Ch. 4, Jurisdiction and Courts 

70. In certain cases appeal goes to the ordinary or maritime courts. This is the 

case particularly of questions concerning registration of vessels, which are appealed 

to the Stockholm District Court and thence to the Svea Appeal Court and the 

Supreme Court. 

71. Water pollution from ships is subject to civil, criminal and administrative 

sanctions. Civil sanctions are damages, which in case of oil pollution are governed 

by the MC Chapter 10, based on the Civil Liability for Oil Pollution Convention, 

1969, with later protocols. As based on the MC, these matters fall to be determined 

by the Maritime Courts. Criminal sanctions for negligent oil spills, on the other 

hand, are based on special Water Pollution Act (1980:424) and fall under the 

jurisdiction of the general courts. The same Act provides for an administrative 

Water Pollution Charge, payable irrespective of negligence for proven oil spills that 

are not inconsiderable. These are debited by the Coastguard authorities and are 

appeal able to the Maritime Courts. 

72. The extent to which these various sanctions can be imposed on foreign 

vessels passing the Swedish coasts is an involved question and will be considered 

in the chapter on marine pollution. 

§2. Other Transport Law Cases 

73. As mentioned above in the general introduction the general court system 

applies fully for claims concerning air, road and rail transportation. 


Part II. Maritime Law 

74-77 

Chapter 1. Waterways 

§1. Introduction 

74. This chapter will deal with legal aspects relevant to the waters used by 

vessels of various kinds. Roughly, the applicable rules will be those of international 

law (‘the Law of the Sea’) and those of national law. The former are of course 

more or less common to all nations, though the utilization of the ranges of the 

international law may vary and justifies a brief presentation of this area of the 

law. The focus of the presentation will, however, be on national Swedish law on 

waterways. 

§2. Law of the Sea 

I. Law of the Sea Convention 

75. In a general sense, the international law is the law of nations and thus 

affects nations only, not individual citizens. The international law thus deals with 

such matters as what waters may be claimed by the various nations, what rights the 

nations can exercise on such waters, and what responsibilities the nations have for 

the proper exercise of their rights. 

76. Since antiquity, two attitudes to the right of the sea have been expressed: 

that of mare clausum, implying that a particular nation was entitled to exercise 

control of the sea, and that of mare liberum, implying that the sea was free for all. 

Since the writings of the Dutch jurist Hugo Grotius, in 1609, published his famous 

work De mare liberum, the latter view has become gradually accepted, though 

considerable inroads have been made on it in recent times. 

77. Thus by the time of the liberal nineteenth century, it was generally recognized 

that no nation had the legitimate power of exercising general control of the 

sea and that, with narrow margins around sea-bordering States, the sea was free for 

all to use. The normal margin, or breadth of national water around coastal States, 

was the range of a cannon shot, later fixed at three (normal), six (Mediterranean) or 

twelve (imperial Russia) nautical miles. 


78-82 Part II, Ch. 1, Waterways 

78. Of old, Sweden and Finland had however claimed a national water of 

four miles, and although this was not respected by the great war faring powers 

during the world wars in the twentieth century, it was the background for Sweden’s 

negotiations in the changing periods to come, Moreover, Sweden, like Finland 

and Norway, is surrounded by a vast array of large and small islands (Sweden’s 

‘archipelago’), and Sweden always claimed to reckon its national waters from 

straight lines between the outermost rocks of this archipelago. 

79. This state of affairs was accepted in four Conventions of the Law of the 

Sea (1958 Geneva Conventions), which were generally accepted as stating the 

applicable rules on sea areas. But various international upheavals and new claims 

by several nations, a new order of the Sea became gradually accepted and 

resulted in one common United Nations Convention on the Law of the Sea, 1982 

(hereinafter UNCLOS). It recognizes the right of nations to claim certain zones of 

water, although the full use of such opportunities requires the coastal nations to 

claim such areas. These permissible zones, and Sweden’s claim of them, are as 

follows. 

II. Zones Recognized under UNCLOS 

A. Internal Waters 

80. Waters within the normal boundaries of the coastal State, such as lakes, 

rivers, canals, harbours, bays and waters inside coastal archipelagoes, such as those 

of Sweden, are known in UNCLOS as internal waters 1 and are fully within the 

sovereignty of the coastal State, though the State may have accepted international 

agreements granting transit rights to foreign shipping, 2 as will be further considered 

in relation to Sweden’s domestic regulation. 

1. UNCLOS Arts. 2 and 8. 

2. Limitations applicable to Sweden include the Barcelona Transit Convention of 1921, the EC 

Treaty’s grant of free circulation, Art. 28 and the 1985 Schengen Agreement, alleviating 

formalities between most EU countries. 

81. The outer verge of internal waters is made up by baselines, the exact 

drawing of which are subject to complicated rules set out in UNCLOS Articles 5 to 

14. Generally the baselines are to follow the coast, but with a coast such as the 

Swedish one, surrounded in most places by thousands of islands and rocks, the 

baselines are usually straight lines between the outermost rocks of the archipelago. 1 

Similarly, straight baselines are also used across the mouths of indentures such as 

estuaries and bays, provided certain requirements are fulfilled. 2 

1. UNCLOS Art. 7. 

2. See further UNCLOS Arts. 9 and 10. 

82. Rocks and shoals which are submerged except at high tide (‘low-tide 

elevations’) may not be used as coordinates for drawing straight baselines, unless 


Part II, Ch. 1, Waterways 83-86 

lighthouses or similar fixed installations are built upon them. 1 Moreover, straight 

baselines must follow the general configuration of the coast and are not permitted 

to depart appreciably from this. 2 In either case, the land area in question usually 

gives cause to its own baseline, with the result that the supposedly straight baseline 

may be dotted with unexpected bulges and sinuosities. 3 

1. UNCLOS Art. 7 (4), cf. Art. 13. 

2. Art. 7 (3). Further on the drawing of such lines around Sweden’s coasts, see Tiberg, Mysteries 

of Water Boundaries, 195-217 ff. 

3. For examples, see Tiberg, Mysteries of Water Boundaries, 195-217 ff. It should be noted that 

the waters round Sweden’s coasts have no appreciable tide either in the Baltic nor in the North 

Sea, and that ‘low tide’ in this context is therefore construed in Sweden as referring to mean 

low water level in the occasional variations that occur due to winds and currents. 

B. External Waters 

83. As a result of the rules described above, waters outside the baselines will 

normally be open sea, besides occasionally a stray cassion lighthouse on deep 

water or an isolated low-tide elevation. Such water outside the baselines, and out to 

the breadth claimed by the coastal State, is called the territorial sea, or external 

waters, and it is in principle regarded as part of the national territory of the coastal 

State. 1 


84. Under UNCLOS the maximum permissible breadth of the territorial sea is 

twelve miles from the baselines, and this is in general fully utilized by Sweden. 

However, in areas abutting upon neighbouring or opposite nations, agreement 

will of course be needed for the division of the waters according to a line which 

is generally the median line between the baselines of the countries concerned. 1 

Moreover, a special arrangement with Denmark has been made in certain places 

where the claim of maximum water would leave no passage to foreign shipping. In 

such areas the two nations have refrained from maximum extension under UNCLOS, 

leaving a corridor of international water between the two countries for reasons 

explained later. 


85. The outer end of the territorial sea marks the national boundary, which in a 

general sense marks the geographical limit of the nation’s sovereignty. Baselines 

and boundaries must be shown on charts to which the coastal State must give 

publicity and which must be deposited with the General Secretary of the United 

Nations. 1 


86. With a common name, all waters inside the national boundary may be 

called territorial waters, as distinguished from the territorial sea. The distinction is 

important, as the nation’s sovereignty is more limited in the territorial sea than in 



internal waters. In the territorial sea, passing, entering and leaving vessels and 

aircraft have an internationally recognized right of innocent passage, 1 while in 

internal waters, passage rights depend on grants by the coastal State. The innocent 

passage to which foreign ships are entitled is one that does not prejudice the peace, 

good order or security of the coastal State as further set out in the Convention. 2 

Innocent passage is subject to the laws of the coastal country, 3 as long as such laws 

do not amount to a substantial denial of the passage, 4 but the passage may not be 

suspended more than temporarily by actions for the security of the coastal State. 5 

1. UNCLOS Arts. 17-26. 

2. See particularly Art. 19, which in its para. 2 sets out activities that are considered inconsistent 

with ‘innocence’. As an example of ‘innocence’ the Swedish Lottery Inspection has decided 

that ships passing through Swedish waters may permit on-board gambling that would be 

unlawful under Swedish law, though whether this applies in the territorial sea for ships bound 

for or leaving Swedish ports was not decided. 

3. UNCLOS Arts. 21 and 22. 

4. UNLOS Art. 24(1) (a). 

5. UNCLOS Art. 25(3). 

C. Straits Used for International Navigation 

87. In straits between one part of ‘international waters’ not part of a coastal State 

and another part of such international waters, 1 international shipping is dependent 

on passage to an extent that has not been considered appropriately provided for by 

passage rules applicable to territorial waters. In such waters there has been introduced, 

through the International Court of Justice’s judgment in the Corfu Channel case 2 

and later in more detail by detailed provisions in UNCLOS, 3 the new notion of 

transit passage, which is less restricted than innocent passage and may not be even 

temporarily suspended. In order to prevent extension of this regime right in to 

Sweden’s baselines, Sweden has decided in conjunction with Denmark to abstain in 

certain areas from using the entire available breadth of territorial sea, but to leave a 

corridor of international water between the two countries for free passage according 

to the rules of the High Seas presented below. 4 The effect, in combination with 

rules allowing for agreed ‘historical rights’ in certain areas, 5 is that Sweden claims 

not to be affected by transit rights anywhere around its coasts. 6 

1. UNCLOS Art. 37 speaks of ‘one part of the High Seas or an Exclusive Economic Zone and 

another part of (such waters)’ as further developed below. 

2. Judgment 9 Apr. 1949. 

3. UNCLOS Arts. 34-44. 

4. See in particular Tiberg, Mysteries of Water Boundaries, 195-217. 

5. See UNCLOS Art. 35 (c). 

6. Tiberg, Mysteries of Water Boundaries, 195-217. 

D. Contiguous Zone 

88. UNCLOS allows coastal States to add to its external waters a contiguous zone 

of a further twelve miles maximum, if needed to prevent infringement of customs, 

fiscal, immigration or sanitary laws in the coastal State. 1 Sweden announced the 



forthcoming introduction of such a zone at the time of ratifying UNCLOS, 2 but the 

matter has been postponed, and the question has only been taken up again recently. 3 


2. Government Bill (Prop.) 1995/96:140 pp. 158-160. 

3. Thus the Investigation on Border Control of certain Taxes SOU 2002:4 p. 58 and the 

Investigation on the Marine Environment SOU 2003:72 p. 267 both state that the Government 

is planning to propose such a zone ‘shortly’, and in Bill (Prop.) 2002/03:109, p. 68 referring 

to the Schengen cooperation (1985 Agreement and 1990 Implementation Convention), the 

Government definitely states that it is desirable. 

E. Continental Shelf and Economic Zone 

89. The Continental Shelf is really a notion concerning the continents, where 

the land tends to extend shallow water until the bottom comes to slope steeply 

into the oceanic depths of several thousand metres. The idea, as developed in a 

declaration by US President Truman in 1944 was that the extended shoal seabed 

belonged to the continent and should be exploitable by the coastal nation concerned. 

But the ambitions of coastal nations led to similar claims out to 200 miles from the 

baselines irrespective of an actual shelf. UNCLOS Article 76 recognizes such claims, 

but allows shelf rights to the entire ‘natural prolongation of the land territory’, if it 

extends further. 

90. Shelf rights affect seabed resources such as seabed oil and gas, bottom 

living (sedentary) fish and other resources, but have relatively limited direct interest 

to shipping in general. They also include a right and duty to protect the marine 

environment. 1 

1. On shelf rights, see UNCLOS Arts. 76-85. 

91. The Exclusive Economic Zone is a creation of UNCLOS resulting from 

excessive claims by a number of coastal nations. It covers earlier fishing zones and 

involves a right of exploiting fisheries and other valuable resources of the sea to a 

distance of 200 miles from the baselines. Shelf claims are usually the same, though 

in some cases a Continental Shelf extends beyond the Economic Zone. 1 

1. Such an extensive shelf exists, e.g., off Australia. 

92. Sweden’s geographical position prevents her from claiming an extensive 

shelf or economic zone. The Baltic is too narrow to allow extensive zones, and the 

shelves of neighbouring Norway and Denmark cut off the waters of the West 

Coast; on this side, Sweden is ‘shelf-bound’. 

93. Such as they are, the extents of the Swedish Shelf and Economic Zone 

(previous fishing zone) have after much discussion been settled to follow identical 

lines. Of this common area it may be said that it is has importance for Swedish 

exploitation and for Swedish control of water pollution as will be shown later, but 

otherwise has little influence on passage of ships. 



F. High Seas 

94. All waters beyond these zones are known as the High Seas and are 

basically beyond national jurisdiction and free for passage by ships of all nations. 1 

Exploitation of these waters is subject to special rules of UNCLOS and special 

Conventions that will not be treated here. 2 

1. UNCLOS Part VII, ss 86 and following. 

2. In particular, bottom soil resources are the ‘common heritage of mankind’ and administered by 

the United Nations Sea-Bed Authority, see UNCLOS Arts 136 and 156 and following, while 

fishing is subject to special Conventions. 

§3. Domestic Rules 

I. Passage under Swedish Public Law 

95. The exclusive jurisdiction of the flag state is a matter of the past. In particular, 

it is recognized that much that is done on a ship affects the surroundings, and even 

in the absence of such effects, the host State has a recognized interest in upholding 

law and order within the country. UNCLOS recognizes coastal States’ interest 

of controlling passing vessels in a growing degree depending on the proximity to 

the coast. Thus while internal waters are in principle subject to the total sovereignty 

of the host country, the right of innocent passage through the territorial sea curtails 

the Swedish control of that area, and this would be more so if transit passage had 

been recognized in any Swedish coast areas. However, even the Economic zone is 

to some extent subject to Swedish control, although it lies outside the Swedish 

territory. 

96. Of old tradition, nations have reserved cabotage traffic for themselves, i.e., 

transport between domestic ports. In Sweden, this is provided in the so-called 

Product Placard of 1724 with a following Declaration of 28 February 1726. These 

ancient enactments are still referred to in the Act (1974:235) on permit for conducting 

sea trade with a foreign vessel, though exception is made in section 1a for 

vessels comprised by the European Community (EC) Council’s Ordinance No. 

3577/92. Liner transport to the island of Gotland was long subject to special Government 

concession (Act 1970:871), but this is now replaced by a special regulation 

in Ordinance (1997:748) on limitation of the right to perform liner shipping on the 

island of Gotland, under which the carrier must undertake to make at least five 

landings per week all the year round and must notify the Maritime Administration, 

setting out the conditions of the planned traffic. 

II. Internal Waters 

97. Under international law, States are in principle free, on internal waters, to 

impose conditions for the passage of ships, although like many other countries 

Sweden has signed the Barcelona Agreement on the Freedom of Transit, 1925, 



under which Member States have mutually undertaken to allow free transit with 

exceptions only for limitations necessary for the safety and vital interests of the 

host country. According to these principles, navigation in Swedish internal waters 

is in general open to foreign citizens on a par with Swedish ones. The statement 

requires qualification in some respects. 

98. In principal customs legislation makes no distinction between Swedish and 

foreign ships. Regardless of whether there are foreign or Swedish, ships arriving in 

the Swedish territory from a third country or from the European Union (EU) customs 

area, carrying cargo or stores on board that are subject to customs supervision, 

must proceed directly to a customs clearance area. 1 

1. Customs Ordinance (TFS 2000:20), Ch. 4, s. 1 a and 3. The ordinance is issued by the Swedish 

Customs Authority under the Customs Act (2000:1281) and the Government Ordinance on 

Customs (2000:1306). 

99. As previously stated, foreign shipping from States party to the 1921 

Barcelona transit convention have in general transit rights through Swedish internal 

waters, and vessels arriving from States party to the Schengen Agreement and 

Convention have the right to pass freely into Swedish territory. 

100. To the extent foreign shipping is admitted into Swedish internal waters, it 

may in general move as freely as Swedish tonnage. By special powers granted 

in the Act (1990:217) on protection of vital national installations, the Government 

has however declared certain areas to be military restriction areas, for which the 

Government may declare access prohibited to aliens in times of national emergency 

and other such situations. 

101. Swedish pilotage rules make no distinction between Swedish and foreign 

ships. Pilotage is compulsory in certain channels for ships carrying petroleum 

products, and under UNCLOS, charges for such services, when performed in the 

territorial sea, must be levied without discrimination. 1 In internal water there is 

a general requirement of pilotage for certain cargoes. 2 Ship’s officers who are 

Swedish citizens may, however, receive a special permit that dispenses from this 

requirement, though this does not depend on the ship’s nationality. 

1. UNCLOS Art. 26 (2). 

2. Under Government ordinance (1982:569) on pilotage etc., s. 5, this is decided by regulation of 

the Maritime Administration. 

102. Thus on the whole, the rules of passage are today of a general nature. 

When restrictions may be declared, they usually apply to ships of all nations. 

103. In addition to all these restrictions for passing shipping, Sweden claims a 

great amount of control of vessels suspected of polluting Swedish coastal waters 

and the waters of the particularly sensitive Baltic Sea. By international law and 

agreement with neighbour countries Sweden also exercises extensive control of 

fishing in the country’s Economic Zone. The substantive rules concerning pollution 

will be presented further in a later connection, while the country’s means of interfering 



with polluting ships by control measures will be briefly considered at the end of 

this chapter. The fishing rules fall completely outside this presentation. 

III. Passage under Swedish Private Law 

104. In one way or another, most legal systems contrive to permit passage 

through water areas in a way that allows seafarers passage without much concern 

about the legal rules applicable. The Swedish solution, however, probably belongs 

to the more original. All water areas in the country belong to some person or entity, 

but the rules of access are different for inshore and offshore waters, the former 

being characterized as private waters and the latter as public waters. The exact 

line between these is drawn in the complicated Act (1950:595) on the Boundary 

towards Public Water, which with simplification 1 may be summarized thus. 

Public water comprises open water in the sea and in the large lakes of Vättern, 

Vänern, Hjälmaren and Storsjön as well as some of the West Coast fjords, while 

private water is land-bound water but in areas of public waters also shore water to 

a 300-metre line. 

1. For more details, see Tiberg, H., Båtjuridik, (Stockholm, 1973), 15 f. 

105. Private water as here roughly defined belongs in principle to the owner of 

the surrounding land, 1 which may well be a community or the state (‘crown water’). 

Public water belongs to an entity known as ‘the public’ (det allmänna), distinct 

from the state and administered by the ancient Chamber Chancellery), today the 

Legal, Financial and Administrative Services Agency (Kammarkollegium). 

1. Now Act (1998:812) with special provisions on water activities (Water Activities Act) Ch. 2, 

s. 2. 

106. According to these rules islands would always be bordered by at least 

a strip of private water, but this does not apply to small islands and rocks under 

100 meters in length; the ownership of these, according to complicated rules which 

need not be developed here, depends generally on their location, and the less 

significant of them follow the character of the surrounding waters. 1 

1. Tiberg, H., Båtjuridik, (Stockholm, 1973), supra, 18-20. In a recent judgment of 28 Oct. 2003, 

matter Ö 4407-00, the Supreme Court determined that the ‘significant’ test is not based on size 

alone but also on the islet’s usefulness, for example, for hunting. 

107. In principle, therefore, the seafarer will either proceed through waters 

belonging to ‘the public’ or waters belonging to various individual shore owners. 

From the property point of view, the right of navigating on public water is unquestioned, 

while on private waters it depends on the ancient uncodified right of public 

passage (‘everyman’s right’) which entitles people to pass over other people’s 

property and which is considered particularly extensive in water areas. 1 Generally 

speaking, the shore owner has no discretionary legal right to stop or obstruct the sea 

traffic across his waters either directly or by erecting installations or hindrances. 

Ownership of water may thus be said to be less comprehensive than that of land. 



1. Tiberg, H., Båtjuridik, (Stockholm, 1973), cit., 23 ff. 

108. Some areas are public fairways or public ports and are then listed as 

such by the Maritime Administration. 1 In such waters there are special provisions 

applicable for the furtherance of sea traffic, such as coercive rights for the 

Administration to erect lights, beacons and other navigational aids as well as to 

remove wrecks and clear the waters of shoals and other obstructions. 2 

1. Act (1983:292) on the establishment, extension and abolition of public fairways and public 

ports. 

2. Tiberg, H., Vad är allmän farled?, På Kryss 1987 no. 1, p. 22 f. 

109. Thus in summary, public water is the sea and some large lakes, while 

private water is other water including shore water. From the property point of view, 

there exists in public water a general right of navigation, while navigation in private 

water is based on the ‘everyman’s right’. To promote navigation in public fairways 

and public ports there are special rules provided in the Environment Code (1983:291) 

and some special enactments. 

IV. Traffic Rules and Passage Limitations 

110. The generally free passage through Swedish waters is of course subject to 

rules and also to certain limitations that must be observed by passing vessels. 

111. Rules concerning speed limits, anchoring prohibitions and other such 

matters relating to public order may be provided by the County Councils according 

to the Maritime Traffic Ordinance, 1986. 1 While the effect of such directives is 

often made dependent on their being exhibited on signs of a specific type along the 

waterways, they come into force irrespective thereof through being published in the 

Council’s Law Gazette. 2 Rules induced by traffic safety considerations are issued 

by the Maritime Administration and come into force by publication in its Statutes 

Code. 3 Both types of regulations are also published in the Administration’s Notices 

to Mariners (NtM). 4 

1. SFS 1986:300. 

2. On these powers of the County Councils, see further The Environmental Code (1998:808) Ch. 

8, s. 2. 

3. Sjöfartsverkets Författningssamling (SjöFS). 

4. Underrättelser för sjöfarande (Ufs), for merchant shipping, is available in English as cited 

in the text, while Underrättelser för båtsporten (Ufb), for recreational boating, is issued in 

Swedish only. 

112. The Government may declare State owned areas to be national parks, and 

special limitations of movement may be declared there. Such provisions apply to 

the islands of Blå Jungfrun in the Sound of Kalmar, Gotska Sandön in the Sea of 

Gotland, and Ängsö in the Stockholm Archipelago. 1 

1. Environmental Code (1998:808) Ch. 7, ss 2-3. 



113. For the protection of wildlife, the County Councils may provide local 

restrictions of the right of free travel and sojourn in parts of their districts, permanently 

or during certain parts of the year. Such prohibitions may cover landing, but 

also passage within a certain distance of islands and other localities. The Councils 

may also provide for protection of the flora. Less drastic restrictions are involved 

in the Council’s declaration of an area to be a nature reservation. 1 These are also 

signposted, though less conspicuously than the wildlife and flora sanctuaries, and 

both types of restrictions apply irrespective of being exhibited. 

1. Environmental Code Ch. 7, ss 4-8. 

114. The freedom of sea traffic may of course also be hindered by concrete 

obstacles created by shore owners or the authorities, and also by natural incursions 

such as silting, and there are rules protecting the freedom of shipping against such 

hindrances. 

115. These rules are encountered mainly in the Environmental Code, which 

requires a permit for works in or about water unless clearly without concern to the 

interests of others. 1 Bridges, road banks, harbours or cable ferries cannot in practice 

be erected or established without such a permit. Applications are generally tried by 

the one of the Environmental Courts, 2 though for bridges and banks belonging to 

the general road or railway net for which there is a special procedure, 3 and large 

projects which are subject to Government approval. The Environmental Court’s 

approval is obligatory except under special circumstances. 4 

1. Environmental Code Ch. 11, ss 9-10 and 12-13. 

2. Environmental Code Ch. 21, s. 1, Water Activities Act Ch. 7, s. 1. 

3. Environmental Code Ch. 11, s. 23 (2); the special circumstances are danger to health and the 

like, the Code’s Ch. 2, s. 9. 

4. Environmental Code Ch. 17, s. 1. 

116. Special rules apply to electric power lines, which require concession by 

the State Energy Authority, 1 in consultation with the Shipping Administration if 

they affect areas used by sea traffic. 2 Such power lines must be high enough to 

allow the current traffic in the waters to pass, and the owner is bound to increase 

the height of the line if higher rigging should become customary. 3 Warning signs in 

a prescribed form are obligatory along the shoreline. 4 

1. Electricity Act (1997:857), Ch. 2 and Electricity Ordinance (1994:1250) ss 1-4. 

2. Ordinance (1957:601) on High Tension Installations, Ch. 5 ss 1-3. 

3. See the above Ordinance relating to Electric High Tension Installations, Ch. 5, s. 1. There is no 

corresponding regulation for low-tension lines such as telephone lines, but if such lines cause 

obstruction, the County Councils may enforce their removal or alteration. 

4. Ordinance on High Tension Installations Ch. 5, ss 1-2. 

117. A previous Water Act gave particular protection to shipping interest in 

respect of public fairways and public ports, where no building was permitted 

to obstruct the shipping in such waters, until they had become divested of their 

‘public’ character by order of the Government on the Maritime Administration’s 

recommendation. 1 But since the Water Act has been succeeded by the Environmental 



Code, which is no longer concerned with the protection of shipping interest such as 

headroom under bridge, the protection of shipping interests is not assured by 

any legal provisions. In fact, the authorities usually engaged in bridge building 

have made it a practice to consult the Maritime Administration when its region is 

affected, 2 but no legislation assures this, and buildings controlled by other authorities 

may be made without any observance of any shipping interests. 3 

1. On the older law, Tiberg, H., Båtjuridik, (Stockholm, 1973), 39. The Maritime Administration 

is now authorized to determine the public character of a waterway according to Ordinance 

(1983:814) issued under the Fairways Act (1983:293) s. 4. 

2. This applies, in particular, to the Environmental Court, which must consent to most buildings 

‘in water’ but which is not heard about other buildings such as bridges whose abutments are 

wholly on land. Consultation with the Administration is also practice by the road and railroad 

building authorities, but not by the Building Boards of municipalities regarding private bridges. 

3. For example, the Building Boards of municipalities allowing the building of private banks or 

bridges. 

118. A general right of clearing waterways to maintain depth and extension 

without a special permit exists in all kinds of water, 1 and in public fairways this and 

other improvements may be performed without the land owner’s hearing. 2 Also, the 

Maritime Administration has a special right of wreck removal in public harbours 

and public fairways as well as in fishing areas. 3 



3. Government Ordinance (1951:321) on the removal of wrecks. 

V. Charges for the Use of Waters 

119. On the high seas, and on economic zones and the continental shelves of 

coastal states, UNCLOS clarifies that no one has the competence of levying any 

charges for the mere passage of ships. 1 Nor is there such a right for the coastal state 

in respect of ships passing innocently through the territorial sea, nor in international 

straits, as once used to be the case in Öresund (the entrance to the Baltic Sea). 2 

On the other hand, the coastal state may without discrimination levy charges for 

services rendered, e.g., pilotage and icebreaking. 

1. UNCLOS Arts 87 and 90, Arts. 58 and 78. 

2. UNCLOS Arts 26 (expressly for innocent passage), 42 and 44 (transit passagage). The Sound 

toll was the personal property of the King of Denmark and was abolished through the 1857 

Treaty of on the Öresund. 

120. In internal waters the coastal state is free to levy charges on the ships that 

use the waters, though against signatories of the Barcelona Convention this must be 

done without discrimination. After criticism by the EC of a previous lighthouse 

charge, Sweden now takes out only a so-called fairway charge, which is imposed 

on all categories of cargo and passenger ships. 1 The charges are collected by the 

Maritime Administration. 2 

1. Government ordinance (1997:1121) on fairway charges. 



2. Government ordinance (1997:1121) on fairway charges, s. 5, Swedish Maritime Administration 

Regulations (SjöFS) 1998:12. 

121. The fairway charges are intended to cover all the normal expenses for 

fairways for commercial shipping, including the necessary lights and marks; 

icebreaking is not covered but is paid for directly as a special service. 1 The same is 

true of pilotage 2 and the use of harbours and canals. 

1. Government ordinance (2000:1149) on icebreaking and SjöFS regulation on icebreaking. 

2. Government ordinance (1999:15) on pilotage dues. 

122. In addition to these charges on the commercial shipping, the Maritime 

Administration receives a subsidy from the State in respect of lights, buoys and 

marks maintained for the benefit of pleasure sailors. According to the Authority, 

this subsidy is insufficient in that most of the marks used today are not needed by 

modern commercial ships. The subsidy received by the Administration may be said 

to be covered many times over by the boaters’ payment of diesel and petrol tax to 

the State. 

123. It is the State that imposes the pilotage and fairway charge, while harbour 

and canal owners charge the harbour and canal fees. No one in the country has a 

right to charge a fee merely because his water is being used for transportation. This 

is true also of natural harbours, which are much used by pleasure yachtsmen. Only 

when special arrangements have been made, such as dredged or built-up harbours, 

quays, docks and buoys, can there arise a right to charge a fee for their use. In 

public ports, such charges may be levied, however, not only on ships actually 

visiting the port but also on such passing them either for the purpose of visiting a 

private berth in the port or to proceed to another port further along. 1 

1. See further the Act (1981:655) on certain dues in public ports. 

VI. Liability in Respect of Water Areas 

124. International law recognizes a duty of coastal states to give publicity to 

known dangers of navigation within its territorial sea, 1 and according to UNCLOS 

there exists a definite duty for states bordering an international strait to cooperate in 

the establishment and maintenance of navigational and safety aids in the strait. 2 For 

military reasons Sweden has long refrained from giving publicity to many known 

obstacles in the outer archipelago, but these ‘ringed-in areas’ have always been 

limited to internal waters in the sense of international law. 



125. When a coastal state makes use of its right to construct artificial islands or 

rigs or platforms within its continental shelf or its economic zone, it is considered 

to be under a duty to publicize information of such installations and to give some 

permanent warning of their presence. 1 Abandoned and disused installations must be 



removed to ensure the safety of navigation. 2 Neglect of these duties may render the 

coastal state liable in damages. 

1. UNCLOS Arts. 60(3) and 80. 

2. UNCLOS Arts. 60(3) and 80. 

126. In domestic law we have seen the shore owner’s formal ownership to the 

often very extensive water areas bordering his land to be in fact very much diluted; 

indeed it is almost devoid of substance if it should come into conflict with the 

interests of the passing shipping. Consistently with this minimal control of the area, 

the landowner does not in general bear any responsibility for the state of the waters. 

Such a responsibility presupposes special installations, whose operator may become 

liable for damage that they cause. Thus the ownership of the land as such is 

unimportant for the determination of liability for damage caused by the state of 

the waters. 

127. Instead, liability for the waters rests primarily upon the fairway holder. 

This is generally the State but in some cases a private company, a community or an 

organization. Thus the Göta Canal Company is responsible for the lakes belonging 

to that canal system except Lake Vättern and some companies and communities are 

responsible for channels leading into ports, which they operate. The Maritime 

Administration’s list of public fairways enumerates the supposed holders of the 

public fairways, but the list can scarcely be taken to be authentic on the question of 

liability. On that question the following may be said. 

128. For special harbours in which the harbour owner can charge dues, and in 

respect of fairways maintained by the owners for access to those harbours, the 

harbour owner is the one liable. For fairways and channels in general in respect of 

which fairway dues are payable, 1 the Maritime Administration is liable. In respect 

of natural areas, which are not marked or fitted with guiding lights, the Administration 

again is the only subject of liability, but only for the correctness of the 

charts and other such publications, which it issues. 

1. Government ordinance (1997:1121) on fairway charges. 

129. Liability in all these cases is predicated upon negligence, ‘culpa’, though 

there may be situations where a harbour authority assumes strict liability by being 

considered to have guaranteed depths in its channels through issuing of publications 

stating such figures. 

130. A subject of particular interest is liability for charts. It was long thought 

that the Maritime Administration had no specific liability in respect of damage 

arising from the incorrectness of charts, but two Supreme Court decisions have 

made it necessary revise this view. In The Thesis 1 the Administration was held 

liable for damage suffered by the Soviet owner of a tanker because of the failure of 

a cartographer to take proper precautions to insert a shoal, which was known, but 

supposed to lie just outside the channel. The nearness of the shoal to a channel used 

by heavy traffic carrying among other things petroleum should have prompted a 



further investigation. 2 In the later case of The Jose Marti, another Soviet tanker, the 

Appeal Court, whose decision was not admitted for review by the Supreme Court, 

clarified that though there is a liability for culpa, it does not amount to a guarantee 

of any figures in a chart, and that a fortiori it is not acceptable for a ship to regard 

depth figures as representative and interpolate between them. 3 

1. ND 1981.1 SH. 

2. Criticism, see Tiberg, H., ‘Oil Pollution of the Sea and the Ewdish “Tsesis” Decision’, LMCLQ 

(1984): 218ff. 

3. Svea Appeal Court in ND 1974.64. 

131. Another matter of current interest concerns wake erosion. The Finland 

ferries from Stockholm have for a long time been eroding the shores and bottoms 

along the fairway towards the sea, and a number of owners on the island of Marö 

sued the Maritime Administration in its capacity of fairway holder in respect of loss 

of ground and destruction of landing stages, etc. The Water Court held against the 

Maritime Administration, but the judgment was reversed on appeal. 

132. The policy consideration behind the District Court’s decision must have 

been that of economic channelling. Through its fees the Administration could 

be the proper party to absorb the costs of the damage caused by ships along the 

coast, and through increased fees these costs might be spread over the users of the 

channel. But the Water Appeal Court made it clear that the Administration’s fees 

were not intended to cover any other than navigational safety costs and that the 

Administration was not a proper party for channelling. 

133. Marks, lights and other navigational aids are established and maintained 

by the fairway holder, i.e., in general the Maritime Administration. Liability has 

been imposed in some cases where such aids have been misleading. The Maritime 

Administration has been held liable when marks give a misleading impression of 

the correct fairway, and also where they are unduly far from their station according 

to the chart so that seafarers navigating otherwise than in the channel are misled. 

The proper fairway must be seen in relation to the chart, so the seafarer cannot 

expect to find his way in a marked channel without the chart. Moreover, the 

seafarer must count with a certain leeway due to wind and weather and should not 

‘rub’ the marks. And in any case, liability for a faulty mark presupposes negligence 

in the laying out of the mark, or in its maintenance. 

134. Special rules for electric power lines are found in the Act (1997:857) on 

electric power installations. With some exceptions a strict liability is here imposed 

on the owner for injury and damage caused by the electricity. 1 The special rules 

do not apply to injuries and damages due to other causes, such as mechanical 

damage because of the fact that a cable falls down. The latter types of injuries 

and damages are subject to the general tort law rules, i.e., basically negligence. 2 

In the Act on electric power installations there are also special provisions for the 

necessary moving of cables due to changes of the waterway and the cost for 

such moving. 3 



1. See Act (1997:857) on electric power installations, Ch. 10, s. 1. The special rules do not 

apply to low tension lines, such as for telephones, where the owner becomes liable only for 

negligence, under the general Tort law act (1972:207). 

2. Tort law act (1972:207) Ch. 2, s. 1. 

3. See Act (1997:857) on electric power installations, Ch. 2, s. 22. 

135. Bridges, cable ferries and other fixed installations require the approval of 

the Water Court, which may adjudicate compensation to persons whose interest is 

injured by the installation. In its decision the court will prescribe the warnings 

that must be issued in the NtM, from which they will eventually find their way 

into the charts. Visible structures thus notified are normally taken to be known 

to the seafarers, so in the event of a collision there has rarely been any question 

of liability for the owner, while liability has been imposed for the operation of 

movable bridges and locks, as well as for underwater obstacles that have been 

considered to be insufficiently marked. 1 

1. ND 1977.23. 

136. Nets laid out in the water seldom cause damage to ships, but there arises 

instead the question of liability for the seafarer for damage to the nets. If a net is 

laid in a fairway commonly used for ships that cannot easily avoid such hindrances, 

the net owner has only himself to blame, but in general seafarers have a duty of 

lookout and can be held liable for damage they cause to duly marked nets. The 

rules relating to marking of nets have however been redrafted, and at the time of 

writing all nets in the sea have to be marked by light at night. 

137. If a shore owner tries to stop or hinder sea traffic by putting up wires or 

ropes or other obstacles, he will be liable for the damages caused thereby. 

VII. Pollution Jurisdiction 

138. Recently Sweden has been increasingly troubled by oil pollution and threat 

of major oil disasters in the Baltic Sea. As will be further developed later, any 

discharge of oil, oily bilge water and other noxious substances is prohibited under 

the Act (1980:424) on measures against pollution from vessels, and for seas in the 

territorial sea as well as in the economic zone of Sweden and in the rest of the Baltic 

sea is prohibited under the Act (1980:424) on measures against pollution from vessels. 

For seas outside of these areas there are strict limitations according to the Maritime 

Administration’s Water Pollution Regulation (SjöFS 1980:48). Outside of these areas 

there are strict limitations according to the Maritime Administration’s Water Pollution 

Regulation (SjöFS 1980:48). Dumping of solid substances is forbidden under Environmental 

Code Chapter 15, section 31. The rules are based on the 1974 Helsinki 

Convention and the 1978 Convention on Maritime Pollution (MARPOL Convention) 

and are substantially identical in the other Scandinavian countries. 

139. For breach of the rules by pollution from ships, three sanctions are available 

under Swedish law: an administrative oil pollution charge, 1 penalties in the case of 



intentional discharges, 2 and damages according to the 1969 Civil Liability Convention 

(CLC) 3 as incorporated in Chapter 10 of the Maritime Code (MC). The 

frames of permissible measures against passing ships are set by the UNCLOS, 

whose Chapter 5 deals with international rules and national legislation to prevent, 

reduce and control pollution of the marine environment. According to Article 211 

of UNCLOS, States shall or may adopt laws and regulation for the prevention of 

marine pollution, and Article 220 sets out the conditions under which such rules 

may be enforced by a coastal State. Among other things, a vessel suspected of 

seriously pollution the State’s economic zone or territorial sea may be interrogated 

and, if not answering satisfactorily, searched and prosecuted. 

1. Act on measures against pollution from ships (1980:424), Ch. 8. 

2. Act on measures against pollution from ships (1980:424), Ch. 10. 

140. Sweden has made the most of the control possibilities given by UNCLOS. 

A foreign vessel passing through Sweden’s territorial sea or economic zone may be 

inspected if the vessel has clearly committed a forbidden discharge which has 

caused or may cause significant damage to the Swedish coast or resources within 

Sweden’s territorial sea or economic zone, or where the discharge has caused or 

may cause considerable pollution to the marine environment and the ship master 

has not properly answered the relevant questions on the vessel’s identity and destination. 

1 Similar rules apply in situations of hot pursuit from the stated areas. In case 

of risk of further damage, the vessel may be brought into port and detained pending 

lodging of security. 

1. Act on measures against pollution from ships (1980:424), Ch. 5, s. 2 a. The provision does not 

faithfully render the UNCLOS distinction between Art. 220(2) on violation of internationally 

legitimate coastal State rules for action in the Terrotorial Sea and Art. 220(3) on violation of 

‘international rules and standards’ for action in the Economic Zone. 

141. Disposal of wastes from vessels is regulated by the MARPOL Convention 

of 1973 together with an Amendment Protocol of 1978. In addition there is the 

Helsinki Commission (HELCOM) to monitor the special situation of the Baltic 

Sea. The Commission consists of all States around the Baltic Sea. According to the 

1990 Helsinki Convention any type oil discharges in the Baltic Sea is forbidden. 

The Baltic Sea has also been declared a Particularly Sensitive Sea Area (PSSA) 

under the International Maritime Organization (IMO) resolution A.927(22). This 

does not itself activate any protective rules for the area, but enables the IMO to 

decide upon measures adapted to protecting the environment. 

142. Pollution from land property – including harbours – is treated in the 

Environmental Code 1986 (1998:808). The principle is that whoever, on his 

premises, conducts or allows to be conducted an activity that has pernicious 

effects to the environment is strictly liable not only for permanent disturbances, 

but also for occasional pollution, such as an accident. The actual polluter is 

also liable jointly and severally with the landowner. There is no limitation to this 

liability. 



143. In addition, in the Environment Protection Act (1969:387) a person 

causing damage to the environment in defiance of an express provision in the Act 

must pay to the State, besides the fines provided for the violation, a so-called 

environment protection charge in the full value of the advantage that he derived 

from the activity. 


144-147 

Chapter 2. Vessels 

§1. Nationality 

144. Like for waters, the rules of vessels have an international and a national 

side. The international law of the sea needs to specify the status of vessels both at 

sea, where no particular legal order would otherwise apply to them, and in territorial 

waters, where by tradition and for convenience they have been given a certain 

autonomy. A major tool in engineering the special status of vessels has been to 

grant them a nationality of their own. 

145. We have seen that international law basically allows vessels to move 

freely on the high seas, undisturbed by others. However, since the international law 

is the law of nations, basically recognizing no other subjects than States, this 

freedom of vessels in an area outside the direct jurisdiction of any particular 

State has been taken to require all vessels claiming it to be referable to a particular 

State, which is both responsible for the vessel’s actions and entitled to extend its 

jurisdiction to the vessel and to protect it against infringements of other States. 1 It is 

this lien between the vessel and a mother State that is known as the vessel’s 

‘nationality’ and that allows ‘every State, whether coastal or land-locked’, to sail its 

vessels not only on the high seas 2 but also, on the conditions of the Law of the Sea 

Convention, in innocent and transit passage through territorial waters. 3 Thus to 

claim international immunity from search and arrest, vessels must show their flag, 

and one flag only. 4 

1. Further Tiberg, H., Svensk sjörätt; Fartyget, (Stockholm, 1989), 8–11. 


3. Thus innocent passage through the territorial sea and archipelagic States applies to ‘ships of all 

States’, UNCLOS Arts 17 and 52, while the corresponding qualification for transit passage is 

implied, Art. 38 being literally extended to ‘all ships and aircrafts’. 


146. As will be further developed, Swedish law since 1975 uses ‘vessels’ as a 

common denomination including ‘ships’, having outward dimensions of at least 

twelve meters length and four meters breadth, and ‘boats’, being smaller vessels. 

The international law knows no such distinctions, and United Nations Convention 

on the Law of the Sea (UNCLOS) defines nationality only with regard to ‘ships’, 

which are primarily understood as seagoing units that are registered and furnished 

with flag documents. 1 

1. Cf. UNCLOS Art. 91(1) and (2). 

147. In international law it is for each state to determine the conditions for 

granting its nationality to ships, always provided that there must exist a genuine 

link between the State and the ship. 1 Traditionally, the link aimed at was real 

ownership, but the development of so-called flags of convenience has led to a wide 

recognition of other nationalities. In such a flag state, the ship’s ‘link’ to the flag 

State may be only an office or even an address in the flag country while the real 

owners are citizens of other countries. Still, this has been recognized for jurisdiction 


Part II, Ch. 2, Vessels 148-151 

purposes, 2 and a serious of somewhat inane judgments by the European Community 

(EC) Court in the so-called Factortame and other cases 3 has practically divested the 

nationality notion of any meaning within the European Union (EU). 4 


2. For Sweden, the Supreme Court in NJA 1987 p. 885, in which the law of the flag Statewas 

recognized as determining the validity of contracts made under compulsion by Swedish longshore 

workers, and the Labour Court ‘Britannia’ decision AD 1989 p. 120, where the law of 

the crew’s State of employment – referred to in the flag State law as applicable – was held 

to determine the permissibility of blockade actions intended to engender such contractual 

relations. See further Schelin, J., Bekvämlighetsflagg och arbetsförhållanden, (Uppsala, 1997), 

Ch. 7. 

3. Factortame II [1991] ECR I 3905, followed by a series of other decisions permitting the 

registry of vessels with equally tenuous links with a mother country. 

4. Tiberg, H., Factortame II, Rättsfall att minnas: till Jan Hellner den 28 oktober 1997, 

(Stockholm, 1997), 393-399. 

148. In Swedish law the requirement for a vessel to have Swedish nationality is 

still, basically, that the vessel must be owned to the extent of more than one half by 

Swedish interests, either Swedish citizens or Swedish legal persons, 1 but there are 

exceptions in respect of vessels from EU States, and also a general exemption 

facility. 

1. Maritime Code Ch. 1, s. 1, para. 1. 

149. The exception for EU States is twofold. First, it allows vessels that should 

be Swedish under the general rule to be registered in another EU State and fly its 

flag if the vessel is part of an economic activity in the register country and managed 

there from, or else if it is stationed in the register country and owned by Swedish 

citizens there. 1 Secondly, it allows other EU citizens to register vessels in Sweden 

in converse situations, 2 whereby the vessel acquires Swedish nationality and the 

right to fly the Swedish flag. 3 

1. See further Maritime Code Ch. 1, s. 1, para. 2. 


3. Maritime Code Ch. 1, s. 1 a. 

150. The exemption rule has importance mostly to non-EU vessels and involves 

a right for the Maritime Administration of granting Swedish nationality in respect 

of vessels that are under decisive Swedish control or whose owners are resident in 

Sweden. 1 This faculty was first devised for ships still preponderantly under Swedish 

ownership, but under the pressure of foreign practice this has been extended to cover 

many situations not originally intended, particularly to permit temporary grants of 

nationality to ships bareboat chartered or otherwise leased to Swedish companies. 

However, Sweden does not, as many other countries, keep a second register permitting 

ships that are in reality foreign to register under the Swedish flag. 

1. Maritime Code Ch. 1, s. 1b, para. 1. 

151. The Swedish nationality rule extends also to boats in the Swedish sense, 

although as a rule no authority decisions need to be made for such vessels unless 

entered in the boat register. 


152-156 Part II, Ch. 2, Vessels 

152. A vessel having Swedish nationality is entitled and under particular 

circumstances bound to fly the Swedish flag as proof of its nationality. However, 

there is not in Sweden, as opposed to many foreign countries, any penal sanction 

directly tied to the display of the wrong flag or failure to display the Swedish flag, 

and thus a foreigner, who hires a Swedish boat may with impunity carry his own 

flag, although this is recognized to be wrong and may involve him in difficulties of 

various kinds. 

§2. Vessel, Ship and Boat 

153. As previously indicated, ‘vessel’ in Swedish law is the generic term for a 

floating structure designed for carriage, while a ‘ship’ is a vessel of at least twelve 

meters’ length over all and at least four meters’ breadth over all and thus requires 

both measures to be reached. A boat, then, is a vessel not reaching either of those 

measures and thus includes craft more than twelve meters long if less than four 

meters broad. 1 

1. Maritime Code Ch. 1, s. 2. 

154. The general notion of ‘vessel’ is not defined in the Maritime Code, but 

an accepted characterization having textual support in the Code and used in the 

commentary to chapter 1 on vessels describes it as ‘an implement of not quite 

inconsiderable size for conveyance or other operation afloat possessing a hull, 

constructed to be steered 1 and incapable of also being used for operation ashore or 

by air’. 2 A ‘hull’ is taken to be a structure supported on the water by enclosed air 

and neither by its own material (as, for example, a wooden raft) or by hydro 

dynamic lift (for example, a submersible ‘Jet Ski’). 

1. This is supported by the Maritime Code Ch. 1, s. 3, which deals with appurtenances to ‘a vessel 

with its hull and steering gear’. 

2. As commended by Rune, C., Rätt till skepp, 2nd edn, (Gothenburg, 1991), 19. 

155. Personal watercraft (PWCs) may be such as always float upon the water 

(‘water scooters’) or such (‘Jet Skis’) as are submerged when immobile and rise on 

the water when planning. The Water Scooter Ordinance (1993:1053) allows for the 

general use of PWCs only in public waterways and areas where it is specially 

permitted (section 1). PWCs are defined as planning motor watercraft ‘conducted 

by one who stands, sits or lies upon the vehicle rather than sitting in it’ (section 2). 

In Svea AC 26 June 2002 DB 165 (matter B 4442-02) two persons indicted for 

conducting floating PWCs were acquitted on the ground that their vehicles, as 

opposed to the submersible type, were boats. 

156. Floating homes have recently become popular in urban areas and are 

being launched on a large scale by certain companies. These are mostly houses 

built on pontoons without any form of steering gear, though others are consciously 

provided with steering to profit from legal advantages associated with a maritime 

status. 



§3. Ownership and Registry 

157. All Swedish ships must be entered in the ship register, kept by the Maritime 

Administration at Norrköping. The ship register is divided into three parts, being 

the ‘ships part’, the ‘ships under construction (shipbuilding) part’ and the ‘boats 

part’. There exists also a possibility of registering a contract for the building of a 

boat for the purpose of protecting the buyer’s interest in the return of instalments 

paid before delivery. There are also discussions in progress concerning reestablishment 

of a register for leisure boats, such as was abolished in 1992 after political 

pressure. 

158. The registration of ships and of ship buildings serves as basis for determining 

title and other rights in the object and therefore requires convincing proof of 

the right sought to be entered. Entry of a vessel or ship under construction into any 

of the registers is known as ‘registration’, while entry of title as owner, or of 

mortgages (hypothecs) or other rights is called ‘inscription’. Registration of Swedish 

ships is compulsory, irrespective of their location, 1 while registration of ship 

buildings is voluntary for such buildings in Sweden, irrespective of ownership or 

nationality of the future vessel. 2 

1. Maritime Code Ch. 2, s. 1, para. 1 and s. 2 paras. 1 and 2. 

2. Maritime Code Ch. 2, s. 1, para. 4 and s. 2, para. 3. 

159. For ships and ship buildings, the rights of an owner are tied strongly to 

inscription. Thus the purchase of a ship or ship under construction from an inscribed 

owner protects the buyer who in good faith has applied for inscription of his 

title, irrespective of the seller’s or buyer’s possession, 1 and similarly, such a buyer 

is enabled to create valid mortgages in the vessel 2 and is also protected from claims 

by the seller’s creditors. 3 Consequently, a purchaser should not pay for the ship 

unless he receives documents enabling him to obtain immediate inscription, which 

he can have since the register uses computer technique. 




160. Registration of boats serves only an administrative purpose and is obligatory 

only for boats of at least five meters length or for more than twelve passengers, 

used professionally for carriage of goods or passengers, towage or salvage, fishing 

or charter, provided they have Swedish nationality or are stationed in Sweden with 

an owner resident in the country. 1 There is also a right of voluntary registration for 

Swedish boats of over five meters’ length and such smaller boats as need registration, 

for instance for foreign travel, 2 and also a possibility to enter into boat part 

certain ships for which registration in the ship register is not obligatory. 3 

1. Act (1979:377) on registry of boats for professional navigation etc. 

2. Same Act on boat registry, s. 5. 

3. Same Act on boat registry, s. 4 para. 1 under 3, ss 5f and 5a. 



161. For boats, title and other real rights are tied to possession as for ordinary 

chattels, and the register has importance only as a matter of evidence of a party’s 

good faith. A buyer should not pay except against obtaining possession. A buyer 

receiving possession in good faith will get a good title irrespective of the seller’s 

right, except if the boat had been stolen from its previous owner; 1 the latter is an 

inconsequential exception that has been introduced as a result of popular pressure 

and applies also to execution sales from insolvent owners. 

1. See Act (1986:796) on Good Faith Purchase of Chattels with amendments 2003. 

§4. Mortgages and Other Real Rights 

I. General 

162. Registered ships and registered ships under construction are capable of 

being hypothecated (mortgaged), i.e., used as security without being handed over to 

the creditor. Hypothecation is achieved in two stages. The owner must first ask the 

register authority for a ‘deed of mortgage’, which represents a certain part of the 

ship’s value, 1 always having a fixed order of priority in execution, ranking with 

other mortgages in order of time of creation. As long as the owner holds the deed 

of mortgage he will himself be entitled to collect for it after a forced sale (‘owner’s 

hypothec’). 2 But the deed is intended to be used as security for others, and this is 

achieved by the owner handing it over as an ordinary pledge to the creditor, 3 who 

by showing his deed at the distribution of the proceeds of an execution sale will be 

entitled to his dividend; he may also notify the Register handing in the deed for 

proof of his rights and will thereby become entitled to information from the register 

of any legal dispositions that occur with the ship. 4 

1. Maritime Code Ch. 3, ss 1 and 12-15, with further reference. 




163. If at an execution sale the purchase sum does not suffice to cover the 

mortgage holders or all of them according to their order of priority, their deeds 

lapse, unless the execution purchaser prefers to allow a mortgage to remain against 

a reduction of the purchase sum. 1 

1. Enforcement Code, Ch. 10, s. 15. 

164. Owners of ships and ship buildings are restricted to mortgaging such 

objects and cannot give them in pledge to creditors. 1 On the other hand, a ship may 

be subject to a repairman’s lien (right of retention), and a ship under construction 

may be subject to a builder’s lien, and both of these will compete with mortgages 

and other real rights in the same objects with priority to mortgages but not to 

maritime liens (below). 2 

1. Commercial Code Ch. 10, s. 7. 



2. Further in the Act (1970:979) on Priorities. 

165. Boats cannot be hypothecated in this way but only taken into possession 

by the creditor as a pledge. However, there exists a registration facility known as a 

registered chattel sale, which can be used for boats as well as for other chattels and 

which gives a buyer of the object a certain protection against the seller’s creditors, 

but not against competing good faith buyers of the boat. 1 

1. Act (1975:605) on Registration of Boat Building Advances, and the Act (1970:979) on priorities, 

s. 4, item 4. 

II. Maritime Liens 

166. In both ships and boats, there can exist in favour of certain claims, such as 

salvage claims, seamen’s’ wage claims and collision claims, a tacit legal security 

known as a Maritime Lien, which according to international conventions and practices 

is binding upon the owner irrespective of possession and good faith. 1 

1. Maritime Code Ch. 3, ss 36-42 and ss 47-52, especially s. 48. 

167. A maritime lien is kind of security in maritime property, mainly vessels, 

but also cargo. It involves a right of sale of the object for realization of the security 

and is therefore classed in Sweden as a type of pledge, although the vessel lien, 

contrary to other pledges in chattels, does not require possession of the object. The 

sale through which the security is realized is necessarily an executive sale through 

the bailiff. After the sale the lienor has first priority in the proceeds. 

168. The maritime lien in vessels is peculiar. It can attach to any vessel after 

launching and is effective without any kind of registration; yet it follows the vessel 

into the hands of a purchaser irrespective of his unawareness of it. A purchaser of 

a vessel will normally require a guarantee of his seller that no maritime liens attach 

to the vessel, but this will not impair the lien, and the only effect of the guarantee is 

that it gives a personal claim against the guarantor if there turns out to exist a lien. 

169. Because of its secret nature, the maritime lien in a vessel is a risk to 

buyers, and it has therefore been given a short life; the lien expires within one-year 

of its creation unless before that time the vessel is attached for the claim, such 

attachment leading to a forced sale. 1 In order to enable the lienor to make use of his 

lien, the usual requirement for attachment of dissipation danger does not apply to 

maritime liens in vessels. Because of the short life of the lien, it may be possible for 

the buyer to secure himself by buying on one-year credit, although in practice it 

will seldom be possible to obtain such credit for the whole purchase sum. 


170. What claims are secured by this favourable position? Maritime liens 

require no specific contract but attach directly and automatically through the 

performance of certain services or other claims. 



171. In accordance with the 1967 Convention, recognized maritime liens are 

the following and have priority in the following order: 1 

(1) wages and other sums due to the master or other person employed on board 

on account of his employment on the vessel; 

(2) port, canal and other waterway dues and pilotage dues; 

(3) compensation for personal injury, which has occurred in direct connection 

with the operation of the vessel; 

(4) compensation for property damage which has occurred in direct connection 

with the operation of the vessel, provided the claim is not capable of being 

based on contract; 

(5) salvage remuneration, compensation for removal of wreck and contribution in 

general average; 

always provided that a claim under number 5 takes priority over claims under 

numbers 1-4 if these have arisen earlier. 

1. Maritime Code Ch. 3, s. 36 and s. 37, para. 2 (wages, public charges, personal injury, property 

damage, salvage, though later salvage charge primes others). 

172. Except as provided above, claims under the same number rank equally as 

between themselves, although a claim under number 5 shall take priority over a 

claim under the same number, which has arisen earlier. 

173. According to a general provision in the Act (1970:979) of priorities, 

maritime liens in general have priority to any other claims in maritime property, 

followed by ship builder’s or repairer’s possessory lien, thereafter ship mortgage 

and finally other possessory liens. Ship mortgages can be had only in registered 

vessels (‘ships’, see above). 

III. Legal Seizure 

A. General 

174. Property, whether general or maritime, may be seized or placed under 

other legal restraint for enforcing the debtor’s appearance in a pending or imminent 

action, for ensuring that the debtor does not dissipate necessary funds subject 

to such an action, or for enforcing payment after judgment. The terminology in 

England and the US appears not to be completely settled, but for purposes of this 

presentation I shall use the following terms. Attachment is preventive seizure or 

immobilization of property for an imminent or pending action, though for ships 

and other vessels arrest – normally reserved for the detention of persons – is the 

accepted term. To distrain property is to seize or immobilize it for the purpose 

of enforcing a claim established by judgment or other legally binding decision. 

The corresponding noun distress invites confusion, so I shall use distraint for the 

act of distraining someone’s property. As a general word for legally taking forced 

possession of some one’s property I use seize and seizure. 



B. Arrest 

175. Arrest of vessels is subject to different procedures depending on whether 

the arrest is a domestic matter or affects an unregistered vessel or if it is an international 

matter concerning a ship. 1 The reason for the distinction is that the arrest 

of foreign vessels is governed by the international Arrest Convention, 2 whose 

provisions – forced upon the Nordic countries in consequence of the Lugano 

Convention (since Sweden became a member of the EU; the Brussels I-Regulation) 

– were considered unsatisfactory and have been restricted as far as possible. 

Such as they are, the Convention rules have been entered into Maritime Code 

Chapter 4, while the domestic arrest rules are found in the Procedural Code 

Chapter 15. As a consequence of the international rules being in the Maritime 

Code, maritime courts handle them, while domestic arrests are under the jurisdiction 

of the ordinary courts. 3 

1. According to the Maritime Code Ch. 4, s. 1, para. 2, the international rules apply to vessels in 

the ship part of the Swedish Shipping register or any corresponding foreign register except 

Swedish ships if the applicant resides in Sweden. Thus even Swedish ships are subject to the 

international rules. 

2. The Convention of 1952 has been succeeded after thorough criticism by a new Arrest 

Convention of 1999. 

3. Compare with the Maritime Code Ch. 21, s. 1, further considered above in this presentation. 

176. The domestic rules are the same for all kinds of property, but distinguish 

between applicants asserting a general claim against the debtor, in which case the 

bailiff chooses sufficient property, and such asserting a specific right in an object, 

such as a maritime lien in a vessel, 1 in which case the action is limited to 

that object. In both situations the applicant must show dissipation risk and some 

indication that the debtor will not pay the debt, and in both cases the applicant must 

lodge counter security for loss if he should not win the dispute. 2 

1. Procedural Code Ch. 15, s. 1, and Ch. 15, s. 2, respectively. 

2. Same sections. 

177. The international arrest rules do not apply to claims for taxes or public 

charges. 1 Within their field of application they are limited to a number of enumerated 

‘maritime claims’ and do not allow arrest in respect of any other claim. 2 Although 

the rules are distinct from the those of domestic arrest, a reference to general rules 

on arrest of ships 3 is understood in practice as incorporating the Procedural Code’s 

requirement of showing a dissipation risk. Thus in Malmö District Court’s decision 

6 March 2002, matter T 1863-02, where the Isle-of-Man registered tug Nestor 

had damaged a Finnish fibber-optic cable by dragging its anchor across it, the 

Finnish cable-owner’s request for arrest was denied because, although the claim 

was covered by the enumeration in the Maritime Code and although the vessel was 

about to depart, no payment unwillingness had been shown on the part of the tug 

owner. 

1. Maritime Code Ch. 4, s. 1, para. 1 in fine. 

2. See the Maritime Code Ch. 4, s. 3, enumerating 17 items. 




178. If there is a maritime lien, Maritime Code Chapter 3, section 40, 

paragraph 3, states that a court may grant arrest even though unwillingness to pay 

has not been demonstrated. The Stockholm District Court has still shown reluctance 

to permit arrest, apparently because though the section allows the court to grant an 

arrest under such circumstances, it does not oblige the court to do so! In Mindagaus 

15 July 2002, matter T 111513-02, a request for arrest was denied on the cited 

ground although a maritime lien was recognized. Information concerning the court’s 

probable reasoning has reached me from the applicant. 

179. The international rules permit arrest not only on the vessel to which 

the claim is referable, but also, except for ownership disputes, on a sister ship. 1 

The same thing of course applies to domestic arrests in respect of a general 

claim. 2 


2. Procedural Code Ch. 15, s. 1. 

C. Distraint 

180. Distraint of any property requires the applicant to show an execution title, 

which may be a judgment of a Swedish court, an arbitration award, certain decisions 

in a summary payment procedure and certain tax decisions. 1 The execution 

title may be personal against the debtor, in which case the bailiff decides what 

property may suitably be distrained, or in rem against the vessel or other object, in 

which case there is no choice. In both cases the distraint decision raises a priority in 

the debtor’s asserts. 

1. Further Sjörättsgruppen Libra, Fartygsexekution, (Gothenburg, 1996), p. 55. 

181. The object of the distraint may be a ship or a shipbuilding, and the rules 

for the two are similar. 1 For both the distraint declaration must immediately be 

notified the Shipping Register or corresponding foreign register. 2 For ships registered 

in the Swedish register, distraint may be laid on the object even if it is not 

present in the country (‘distance distraint’). 3 The executive sale of registered ships 

is regulated at length in Chapter 10 of the Enforcement Code. 4 

1. Enforcement Code Ch. 1, s. 9. 

2. Distraint Ordinance (1981:981) Ch. 6, s. 19. 

3. Enforcement Code Ch. 4, s. 4, and Ch. 16, s. 13. 

4. For further information, readers to whom Swedish is accessible are referred to the book 

Sjörättsgruppen Libra, Fartygsexekution, (Gothenburg, 1996). 

182. Distraint and executive sail of boats in most respects follows the rules of 

chattels in general, though its possible registration and the possible existence of 

maritime liens raises particular issues. 1 

1. Concerning this and practical problems in this connection, reference is again made 

Sjörättsgruppen Libra, Fartygsexekution, (Gothenburg, 1996), 70-77. 



§5. Sale of Vessels 

I. Merchant Vessels 

183. Apart from vessels being taken over by purchase of shares in the ship 

owner company, ships may be bought new, normally by building contract, or used, 

on a sale contract. The building contract will not be dealt with here except to say 

that building is paid by instalments and the building can be entered into the ship 

building part of the ship register and can be mortgaged if this is done. 1 

1. General on the shipbuilding contract, the Swedish reader may be referred to my book 

Kreditsäkerhet i fartyg, (Stockholm, 1968), 200-215. 

184. Large ships are usually sold on the Norwegian Saleform contract, latest of 

1993, while smaller vessels may be sold on a Swedish contract form. 1 Both are 

subject to declaratory provisions of the Sale of Goods Act (1990:931). 

1. Köpekontrakt för svenskt skepp, or MoA Svenskt Skepp. 

185. The procedure for larger vessels is usually initiated by the seller contacting 

a broker, who will circulate particulars of the ship on the market. Such particulars 

are important and will bind the seller to the extent they are precise and relevant, for 

example on speed and fuel consumption. 

186. Under Saleform, the contract may then be signed subject to inspections, or 

for ‘outright’ sale, after such inspection, see clause 4(a). The buyer will be required 

to lodge a deposit of 10% of the price. 

187. It is characteristic of the ship sale that the buyer relies largely on the ship’s 

classification record. Thus in the ‘outright’ sale the buyer certifies having seen the 

records, and in the alternative 4(b) sale, the seller is given a period to inspect the 

records. Moreover, in the latter form, the seller is to hold the vessel available for 

inspection at a given place, and the buyer undertakes to perform such inspection 

‘without undue delay to the vessel’, without ‘opening up’ and without costs to the 

seller. After this the buyer has seventy-two hours to accept the vessel ‘outright and 

definitely’, otherwise the sale is off and the deposit is returned to the buyer. 

188. There is a closer inspection to be made by the classification society on 

delivery of the vessel, which can no longer result in cancellation. This is normally 

in dry dock and concerns parts that could not be inspected afloat, and docking costs 

are divided according to the result of the inspection. Particular attention is paid to 

the ship’s propeller shaft, which may have to be drawn and repaired. A cheaper 

alternative is a diver inspection, which may however result in the ship having to be 

dry-docked. 

189. Defects found at the delivery inspection may lead to price reduction or 

rectification by the seller. Any impairment arisen after signing the contract is for 

the seller’s account. 



190. At the delivery the seller must deliver all necessary documents for the 

vessel. In the event of the ship changing her flag all documents needed for change 

of register must be delivered, and the Shipping register must be informed for 

immediate changes, which is done by informal contact with the respective foreign 

register. The vessel is normally to be delivered without encumbrances, though for a 

Swedish sale where the ship is not to change her register, the buyer can take over 

the mortgage deeds as discussed in the chapter on mortgages. 

II. Pleasure Vessels 

191. New boats may be sold outright or have to be built, but a contract form 

has been worked out only for sale of ready boats. The normal such contract is K 

2002, for consumer sales and approved by the Consumer Agency. The form is 

often used also for the building of a boat, although it is not adapted to such objects 

and a contract made by a knowledgeable lawyer is important for larger objects. 

Boatbuilding are often paid for by instalments. 

192. Consumer sales are governed by the Consumer Sales Act (1990:932), 

whose provisions are mandatory against the seller, while sales between private 

persons are subject to the Sale of Goods Act (1990:931). It may, however, sometimes 

be doubtful whether a sale is private or a consumer sale. 

193. In Cases from the Supreme Court (NJA) 2001, p. 155 R bought a sailing 

yacht from O, CEO of P. Boat Yard, being told at the time that O had financed this 

boat and sold it privately. Having later heard that the boat had been built in Poland, 

R sued O for a price reduction. The District Court applied the Consumer Sales Act 

and allowed the reduction. The Appeal Court, applying the Sales Act as the sale 

was between private parties, reversed. The Supreme Court said that O had been 

producing and selling boats within his professional activity and that this boat 

‘had closer connection with the commercial activity than with O’s private life’. 

The Court applied the Consumer Sales Act and restored the District Court’s 

judgment. 1 

1. For criticism, see comments in Tiberg, H., ‘Swedish Maritime Law 2000-2001’, LMCLQ 

(2002): 544-566. 

194. Used boats are mostly sold privately, without resort to brokers. If a broker 

should be used, the buyer-prone Consumer Sales Act becomes applicable not only 

for the broker but also for the seller. 

195. Private sales of used boats are mostly documented on the Swedish 

Cruising Club’s contract form. The form is available also in English and is 

often used in sales involving Swedes in other parts of the EU. Under the contract, 

the sale is made ‘as is’ without liability for other defects than what the seller 

actually knew or must be taken to have known and what he had guaranteed or 

represented. 



III. VAT on Vessels 

196. Under the 6th EC VAT directive, VAT is not due for sales of seagoing 

merchant vessels. Swedish administrative courts have however decided, arbitrarily 

and without any support in the Directive that this exception applies only to vessels 

for cargo and passenger transport. 1 

1. Gothenburg Court of Administrative Appeals, 19 Apr. 2001, relying on the earlier Rå not 

Ba-70/83 decision of the Supreme Court of Administrative Appeals, under similar rules that 

were not EC-based. 

197. Dealer sales to private persons are subject to VAT, and the same applies 

import of vessels into the EU. These rules cause many problems to private parties 

in dealings within the Community. 1 

1. For support and further comment, reference is made to my article Tiberg, H., EG-moms på 

fartyg, Festskrift till Ulf Bernitz, JT, (Stockholm, 2001), 145-154. 

198. For new boats, VAT is payable in the country of use, while for old boats 

– understood as boats more than three months old from delivery and also used at 

least one-hundred hours – it is payable in the country of purchase. Moreover, VAT 

paid at the rate of the country where it is due discharges the VAT duty in all of the 

EU VAT area. Since the VAT rate is only 16% in Germany but 25% in the Nordic 

countries, buyers of new boats often want them delivered in Germany at the lower 

VAT rate, and sellers try to accommodate them by selling the boat in Germany on 

hire-purchase terms, on the theory that property in the object is then not transferred 

until the boat is ‘old’. This is not accepted in Sweden and other countries, which 

regard the hire-purchase contract as a subterfuge for an instalment sale of the new 

boat, and the buyer is therefore liable to be charged another 25% VAT on top of the 

16% that he paid in Germany! 

199. Although sale VAT is payable by the seller, authorities in some EU 

countries require boat owners to show that VAT has been paid for the boat. This 

has no support in the Directive, which only requires the buyer to show that he 

bought his vessel by a VAT-free purchase. 

200. Import VAT is payable on all taxable vessels arriving from third countries, 

with the exception inter alia 1 of situations where the owner can show that he is 

returning from a limited stay. The period of that stay varies under EC rules between 

three and ten years, and Germany applies the shorter period, while Sweden and 

England do not seem to consider the limitation applicable to sailors’ private boats 

at all. If the boat has been sold in a third country and is returned by the buyer, 

import VAT is due in all EU countries. 

1. Another notable exception is ‘household goods’, including private boats that have been used by 

a resident in the foreign country who moves to an EC country. 



§6. Vessel Safety 

201. Safety rules for vessels are too extensive to be set out here in anything but 

the barest outline. Beside a few basic provisions in the Maritime Code, obliging 

ship owners and carriers to keep vessels seaworthy, 1 and some special provisions, 

for example in the Maritime Traffic Ordinance (1986:300) and the corresponding 

International Collision Regulations (COLREG) 2 all safety rules of any substance 

occur in the special Vessel Safety Legislation. This consists of general provisions 

in the Vessel Safety Act (2003:364) and more detailed rules in delegated jurisdiction, 

primarily the Vessel Safety Ordinance (2003:438) supplemented by a host of 

Regulations issued by the Maritime Administration, the bulk of them based on the 

1974 Safety of Life at Sea (SOLAS) Convention with periodic updates and, for 

pollution, on the 1972/78 Convention on Maritime Pollution (MARPOL Convention). 

In addition, a large number of recent EC directives have been implemented 

into Swedish legislation. 

1. Maritime Code Ch. 1, s. 9, Ch. 13, s. 12, para. 2, Ch. 14, ss 7 and 52. 

2. Same Ordinance, s. 2. 

202. The Vessel Safety Act applies to all Swedish vessels with certain 

exceptions for warships and applies in part to foreign vessels in Swedish waters. 

The Act requires all ships to be structurally seaworthy. For passenger vessels and a 

number of other larger vessels this is specified by requiring the vessels to have 

certificates for the sea area they are intended for and to be periodically inspected 

for the renewal of the certificates. Navigation lights and much other equipment 

require special certification. 

203. Special rules apply to loading and freeboard. In principle, no vessel 

including the smallest leisure boat may be overloaded, but in addition, most cargo 

and passenger vessels require to have a load line marked on the vessel and to carry 

a special freeboard certificate. 

204. Passenger vessels, defined as vessels conveying more than twelve passengers 

on board, are subject to stringent requirements, irrespective of size. Such vessels 

need a passenger vessel certificate stating the maximum number of passengers that 

may be carried on board. 

205. The safe management of vessels is assured by the International Safety 

Management Code (ISM Code), which was early implemented in Sweden. This 

prescribes a close link between the vessel and its management and a continuous 

self-control on the part of the latter. Passenger vessels and all commercial vessels 

of a burthen over twenty must have a document of approved safety organization. 

206. Manning rules require vessels to have sufficient crew with proper training, 

and the crew must also be specifically instructed about the particular vessel. 

For commercial vessels the Administration establishes the manning requirement by 

decisions on minimum crew, or for smaller vessels by general manning provisions. 



The detailed rules follow the international STCW Convention (Standards of Training, 

Certification and Watch keeping). 

207. Concerning onboard safety there is a general provision in the Maritime 

Code, while the Ship Safety Act concentrates on matters of safety crew and working 

environment and leave specific provisions to the regulations of the Maritime 

Administration. The working environment onboard is also governed by the general 

Act on Work Environment (1977:1160). 

208. The Maritime Administration’s Vessel Inspection is in charge of the 

supervision of the safety rules (Chapter 5). This is done by initial and periodic 

surveys and inspections of vessels, although much of this control is delegated to 

international classification societies (Chapter 1, section 5 and Chapter 5, section 3) 

approved by the European Commission and being controllers also for the ship 

insurance. Management control of the owner’s safety organization has been added 

by the ISM Code (Chapter 5, section 16). In addition it has become increasingly 

important to check on foreign tonnage visiting Swedish ports. This is done according 

to the rules of port state control established according to the Paris Memorandum of 

Understanding (MoU, see C 5, section 9). 

209. In principle, the Administration’s supervision includes also pleasure 

boating. Traditionally Swedish authorities have not interfered much with pleasure 

boating. Classification of boats for permission to sail given distances from the coast 

– as in many other countries – has not been practiced; certification of navigational 

skill is required only for ships. 1 In addition, safety standards have been left largely 

to voluntary initiatives. Standards for the marketing of boats have however been 

introduced through the EC recreational boat Directive 2 and been implemented by 

the Recreational Boats Act (1996:18), the Recreational Boats Ordinance (1996:53), 

and Maritime Administration Regulation (SJÖFS 1996:14), and a pending amendment 

of these 3 may involve introduction of EC norms in such respects. 

1. Regulation (1970:344) on Competency Requirements for Conductors of Larger Recreational 

Craft. 

2. Directive 94/25/EC. 

3. Directive 2003/44/EC with proposed implementation presently under review to authorities and 

organizations. 


Part III. Other Transport 

556-558 

Chapter 1. Transport by Road 

§1. Introduction 

556. Carriage of goods by road plays a very important role in Sweden because 

of the fact that it is a rather large country with a small population. As a consequence 

of this the railway network does not cover the whole country. In other 

words it is necessary to use coaches and trucks in carrying passengers and goods to 

certain less populated parts of the country. Carriage of goods by road also stands as 

a more flexible and cheaper way of transporting many products as the loads often 

are rather small. In addition to this both international and national carriage of goods 

by road has gradually become more important as more and more goods are distributed 

according to door-to-door and just-in-time concepts. The truck very often 

plays a key role in these multimodal transport operations. 

557. Sweden is a party to the Convention on International Carriage of Goods 

by Road (CMR Convention on international carriage of goods by road). The 

convention was incorporated into Swedish law by the International Carriage of 

Goods by Road Act in 1969. This means that the original texts of the convention in 

French and English are considered as law in Sweden. In addition there is an Inland 

Carriage of Goods by Road Act, that governs the liability of the road carrier in 

domestic carriage of goods. The Inland Carriage of Goods by Road Act, which to a 

large extent is based on the CMR Convention, was enacted by the Government in 

1974. A general difference between the CMR Convention and the Inland Carriage 

of Goods by Road Act is that while the former is mandatory in both directions there 

is a possibility for the parties in the latter one to agree on more favourable conditions 

in relation to the sender or the consignee. 

558. The liability for damages to passengers in road transport is covered by the 

general Road Accidents Act from 1975. 1 This act is mandatory and regulates the 

liability for traffic accidents where private as well as public motor vehicles are 

involved. 

1. Trafikskadelag (1975:410). 


559-561 Part III, Ch. 1, Transport by Road 

§2. Carriage of Passengers 

559. According to the 2 § of the Road Accidents Act every vehicle registered 

in the national Road Traffic Register has to be covered by a traffic insurance. This 

insurance works as a sort of no-fault insurance, covering injuries to the driver of 

the vehicle and his passengers (see section 10, paragraph 1). That means that, 

regardless of whether the driver of the coach caused the traffic accident or not, the 

passengers will get compensated for their injuries by the traffic insurance of the 

vehicle they were seated in. According to 9 § the compensation are to be calculated 

in accordance with the provisions of the general Act on Tort Liability. 1 The 

insurance will cover the costs for hospital treatment and other related costs for 

the injured person, loss of income, compensation for pain and suffering and for 

permanent disabilities. If the accident caused the death of a passenger the insurance 

also covers the costs for the burial, loss of allowance and costs for the treatment of 

mental injuries to close relatives. 

1. Skadeståndslagen (1972:207). Regarding the compensation, see Bengtsson, B. & Strömbäck, 

E., Skadeståndslagen – En kommentar, 3rd edn, (Stockholm, 2008). 

560. The Road Accidents Act also covers damages to passenger luggage to a 

certain extent. If the luggage is damaged in an accident caused by another vehicle 

the traffic insurance of that other vehicle will cover the damages. If for example a 

bus and a car crashes and it is established that the driver of the car caused the 

accident the traffic insurance of the car will cover the damages to the luggage 

belonging to the passengers in the bus. However if the bus driver caused the 

accident the passengers will have to turn to the bus company in order to get 

compensation for the damages to the luggage. Usually the bus company will have 

an insurance additional to the traffic insurance for that matter. Unlike the compensation 

for personal injuries the passenger will here only get a limited compensation 

because of the limitation-clauses in the standard contracts of carriage between the 

bus companies and their passengers. 

561. The Road Accidents Act is only applicable provided that the vehicle is in 

traffic at the time when the damage occurs. That does not mean that the vehicle has 

to be in motion. In (Cases from the Supreme Court) NJA 1988.221, that was 

decided according to the earlier Road Accidents Act, the Supreme Court interpreted 

section 10 paragraph 1 of the Road Accidents Act rather extensively. In this case a 

passenger was dragged into a car by another passenger in order to escape the 

police. He squeezed his hand when the man that dragged him in slammed the door. 

The Court came to the conclusion that the damage was linked to the normal use of 

a car and accordingly he was entitled to compensation from the traffic insurance of 

the car. 1 

1. Cf. NJA 1974 p. 616 where the driver slipped and fell when he stepped out of the car in order 

to close the garage gateway. The Supreme Court here came to the conclusion that the car was 

not in traffic and accordingly the driver was not entitled to compensation from the traffic 

insurance. See further Agell, A., Skada i följd av trafik som ersättnings- och jämkningsgrund, 

Festskrift till Kurt Grönfors, (Stockholm, 1991), 9-28. 


Part III, Ch. 1, Transport by Road 562-563 

§3. Carriage of Goods 

I. The Consignment Note: Way Bill 

562. The provisions on the consignment note in the Inland Carriage of Goods 

by Road Act are almost identical with Articles 4-16 of the CMR Convention. The 

consignment note serves three different purposes. Firstly there is a presumption that 

the written clauses of the consignment note reflect the actual transport agreement. 

In other words the consignment note is an evidence of the transport agreement. 

Secondly it serves as a receipt for that the carrier actually has received the quantity 

of the goods marked. Thirdly there is a presumption that the goods were delivered 

to the carrier in apparent good order if there are no remarks as to the quality. 

However it is important to note that this is a presumption. The effect of that no 

remarks as to the quantity and quality are made in the consignment note here differs 

compared to the bill of lading used for sea transport. If a third party has acquired 

the bill of lading on the faith of statement therein being correct proof to the contrary 

from the carrier’s side is not admissible according to the Swedish Maritime 

Code (MC) Chapter 13, section 49, paragraph 3. However in carriage of goods by 

road the carrier will regardless of what is said in the consignment note always have 

the possibility to prove for example that the goods were in bad condition already at 

the time of delivery. 

II. Rights and Obligations 

A. Carrier 

563. The carrier has a general obligation to collect the goods at the place of 

loading. Very often the parties have agreed on at what time the goods are to be 

loaded. If the parties have not done that, the carrier has to collect the goods in due 

time so that he will be able to deliver it promptly. The liability for not collecting the 

goods in due time is not considered to be within the scope of the Inland Carriage of 

Goods by Road Act. Instead the liability will be governed by general principles of 

contract. The consequence of this is that the carrier will be liable for negligence. 

That means that if the truck breaks down on its way to the place of loading and 

the breakdown is not due to bad maintenance, the sender is not entitled to any 

compensation at all. On the other hand if the carrier is in fault, he has no right limit 

the compensation to the value of the goods. In other words he will in this situation 

also have to pay for the consequential losses. However in a Norwegian case on the 

CMR Convention from the District Court of Midt-Trøndelag, the court came to the 

opposite conclusion: 1 

The carrier here agreed to transport a consignment of wire from Hommelvik in 

Norway to Oulo in Finland. On its way to Hommelvik the truck broke down and 

the carrier never collected the goods. As a consequence of this the sender hired 

another carrier to carry out the transport and claimed compensation for the 

higher freight that he have had to pay to this carrier. In the judgement the court 



stated that this case concerned a matter that was within the scope of the CMR 

Convention and as a consequence of this the carrier had a strict liability for the 

delay here, but with a right to limit the compensation to amount of the freight. 

1. ND 1984.264 Midt-Trøndelag. 

564. In the Scandinavian literature on carriage of goods by road the case has 

been criticized on the reason that the conclusion of the court does not correspond 

with the European case law on the CMR Convention. 1 Therefore there is no reason 

to believe that the case reflects the position of the law in Sweden. However, it 

illustrates the problem that the liability regulation of the Inland Carriage of Goods 

by Road Act, like the CMR Convention, only has a limited scope of application. 

1. Bull, H. J., Innføring i veifraktrett, 2nd edn, (Oslo, 2000), 70. 

565. One of the main obligations of the carrier is to take care of the goods that 

he has in his custody. As an consequence of this the carrier shall according to 

section 12 paragraphs 1 to 2 of the Inland Carriage of Goods by Road Act check the 

nature, quantity and the quality of the goods at the time when those are delivered to 

him. In practice this means that the carrier has to count the packages and check the 

labels and numbers on them. He has also to check that the packages are in good 

order. However it is important to notice that it is a check that the goods are in 

apparent good order, the carrier has no obligation nor any right to open up the 

packages in order to check the goods. The reason for why the carrier has an 

obligation to check the goods is of course that he must see that it is fitted for 

transport in order to avoid damages. The provision also serves as a way of avoiding 

future disputes on whether the goods already were in bad condition at the time 

when it was delivered to the carrier. If the carrier would like to make reservations 

as to the condition of the goods, he must have them recorded in the consignment 

note. The note will then form an evidence. However it was discussed above that, 

unlike in the MC, the consignment note will not form a conclusive evidence. If the 

carrier is able to prove that the goods actually were in bad condition at the take over 

the court will accept that and relieve him from his liability. 

566. The obligation to take care of the goods is also reflected in section 25 of 

the Inland Carriage of Goods by Road Act. Here it is regulated that if it proves 

to be impossible to carry out the transport the carrier must store the goods on 

the account of the sender. If the goods, as is the case with for example food, are the 

object of corruption the carrier has according to section 26 the right to sell the 

consignment. However, it is uncertain whether this provision also can be interpreted 

as if there is an implicit obligation of the carrier to do that. At least in a 

situation where the selling of goods results in a lot of costs for the carrier the 

provision should not be viewed as an obligation to sell the goods rather than an 

opportunity to do that. 

567. The other main obligation of the carrier is to deliver the goods in due time 

at the place of destination. Regarding the CMR Convention it has been disputed in 



Scandinavian law whether a situation where the carrier delivers the goods to the 

wrong consignee is within the scope of application of the Convention. In the 

Danish case (Nordic Maritime Cases) ND 1996.161 VL the Appeal Court Vestre 

Landsret came to the conclusion that wrongful delivery was not within the scope of 

application of the Convention. The case concerned a transport of new furniture to 

France. The goods were delivered to an agent of the consignee. The furniture were 

later on delivered to the consignee by the agent, who also received the payment for 

the goods. The consequence of this was that the sender never got the money. 

568. However, in the likewise Danish case ND 1999.94 SøHa the Maritime & 

Commercial Court of Copenhagen regarded the driver to have acted with gross 

negligence when he delivered a consignment of pipes to the wrong person: 

At the arrival in Moscow the driver called Mr. Atasoy at the company named 

as consignee in the consignment note. Unfortunately Mr. Atasoy was not at his 

office. Half an hour later two men arrived to the parking place in taxi. They 

told the driver that they represented the consignee and asked the driver to 

accompany them to the Customs Office. A third man stayed with the truck in 

order to guard the goods. At the arrival to the Customs Office one of the men 

went to visit the Customs Officer, but after a while he returned and announced 

that the customs clearance would not until in the afternoon. After that they 

decided to have lunch. On their way back the men in the car said that they had 

to stop at the Dynamo Station in order to exchange money. The men left the 

truck driver in the taxi and disappeared. At the time when the driver returned 

to the truck the goods were stolen. 

569. As a consequence of the fact that the Maritime & Commercial Court 

did find that the driver had acted with gross negligence according to the CMR 

Convention, it must also have been of the view that a wrongful delivery was within 

the scope of application of the Convention. 

B. Sender 

570. The sender has several rights and obligations related to the goods. The 

most important obligation is to provide the goods to the carrier in due time and in 

good order. The liability for not delivering the goods in due time is not regulated in 

the Inland Carriage of Goods by Road Act nor in the CMR Convention. However 

assumingly a Swedish court would here state that if the sender has promised to 

deliver the goods at a certain point he has got a strict liability for this. In other 

words the sender would here have to pay the freight anyway. If the parties have not 

agreed on a certain time for delivery the liability of the sender would probably be a 

liability of negligence, i.e., if he carelessly caused the delay in delivery he will be 

liable for that. 

571. According to section 7, the sender (as well as the carrier) of the goods 

generally has the right to demand that the a consignment note is issued at the time 



of delivery to the carrier. A party to the transport agreement can only refuse to that 

in situations where the issuance of a consignment note would entail a significant 

inconvenience for the other party or if it is not the custom of that kind of transports. 

According to section 9 the consignment note shall contain information on the name 

and address of the sender, the name and address of the carrier, the place and date 

when the goods were received for carriage, the name and address of the consignee, 

the number of packages and their special marks and in case of dangerous goods 

instructions of its nature and if necessary how it should be handled. At the request 

of the sender or the carrier the following information may be included in the 

consignment note: the place and the date for the issuance, the nature of the goods 

and the way it is packed, the weight or measure of the goods, costs related to the 

transport, such as freight, additional charges, customs charges and other costs that 

incurs from the time of the conclusion of the agreement until the time of delivery, 

instructions in order to comply with customs and other public regulations, prohibition 

to reload the goods, the costs that the sender has taken on to pay, the payment 

that the carrier are to collect on the delivery of the goods, the declared value or 

interest in delivery, instructions regarding the insurance of the goods, the agreed 

date of delivery and a record of the documents delivered to the carrier. 

572. The sender of the goods has according to section 11 a strict liability for 

cost and damages that incurs by the fact that the information that he has provided 

for in the consignment note is wrong or incomplete. 1 According to section 16, 

paragraph 2, that is also the case regarding other documents that are attached to the 

consignment note. This provision is identical with Article 7(1)(a) of the CMR 

Convention. An illustration to this regarding Article 7(1)(a) of the convention could 

be that the sender provides the carrier with an invoice indicating a lower value of 

the goods than the actual. The reason for providing the carrier with such an invoice 

is that it is necessary for the customs clearance as the customs tariffs usually are 

based on the value of the goods. A problem here is however that it is not uncommon 

in certain countries that people within the customs administrations are hired by the 

Mafia to inform them of valuable goods that crosses the border. In order to protect the 

goods the senders sometimes try to use two sets of invoices, one showing the real 

price and one showing a lower price. The former one is used in the communication 

with the purchaser and the latter one is used in connection with the customs clearance. 

However if it is detected by the customs administration that the goods the are more 

valuable than the invoice indicates the carrier risks that heavy fines are imposed on 

him. In a situation like this the sender has to indemnify the carrier: 

In practice carriers have argued in favor of that if the goods are lost the value 

is to be calculated according to the invoice showing the lower value, i.e. the 

one which the carrier is equipped with. In a case from the Supreme Court of 

Denmark, UfR 2000, p. 1817, Danica sold a consignment of crab sticks to a 

purchaser in Russia. In the invoice that was presented for the carrier the price 

for the sticks was 13,000 USD but in the real invoice the price was 92,000 

USD. A part of the goods was lost during the transport and the carrier alleged 

that the lower price was to be used in the calculation of the value of the goods. 

The reasons for that were that the carrier faced the risk that the purchasers 



would claim for compensation and the relationship to the customs authorities 

would be harmed the system with two invoices was illegal. However the court 

rejected these reasons. Instead the court stated that it was the real value of the 

goods that was to be used even if it was illegal to use two invoices. The carrier 

was already protected against costs and damages by Article 7(1)(a) of the 

Convention. 

1. If costs or damages occurs as a consequence of that the carrier is not informed of the existence 

and handling of dangerous goods here the sender has got a strict liability for this according 

to s. 15. 

573. According to section 15 the sender also has got an general obligation to 

inform the carrier of dangerous goods and how it should be handled. In addition he 

has got the burden of proof for that the carrier did receive instructions. If costs and 

damages occur as a consequence of the carriage of the dangerous goods there is a 

strict liability to indemnify the carrier for those. 

574. The sender has not only an obligation to deliver the goods in due time and 

to give information to the carrier. The goods delivered to the carrier must also be 

fitted for the transport. This is explicitly regulated in the Inland Carriage of Goods 

by Road Act section 14. According to this provision the sender has a strict liability 

for personal injuries and damages to the vehicle, equipment and other goods due to 

the fact that the goods were not packed properly. However the carrier cannot 

invoke this provision if he was aware of the improper packing. 

575. During the transport the sender has according to section 17 the right to 

dispose of the goods particularly by giving instructions to the carrier to stop the 

goods in transit, to change the place at which delivery is to take place or to deliver 

the goods to a consignee other than the consignee indicated in the consignment 

note. The provision corresponds with Article 12(1) of the CMR Convention. The 

right to disposal cease to exist at the moment when the goods have reached the 

place of destination. During the transport the carrier is entitled to refuse to carry out 

the instructions if it stands as impossible at the time when the instructions reach the 

person, who is going to carry them out, if it interfere with the normal working of 

the carrier’s undertaking or prejudice the senders and the consignees of the other 

consignments and if the instructions result in a division of the consignment. The 

sender has a strict liability for the costs and damages that occur due to the carrying 

out of the instructions. A similar regulation is also found in section 24. According 

to this provision the sender is liable for costs that incur in connection with the 

carrying out of orders from the sender in a situation where it has proved impossible 

to transport or to deliver the goods at the agreed destination due to force majeure. 

C. Consignee 

576. The consignee has no direct obligations in relation to the carrier since 

he is not a party to the transport agreement. For example the consignee has no 



obligation to accept the delivery of the goods. Another thing is that the consignee 

cannot according to section 28 of the Inland Carriage of Goods by Road Act claim 

compensation for damaged goods if the damages were caused by for instance his 

wrongful instructions. 

577. An interesting question here is whether the carrier, if the consignee claims 

compensation, can according to section 28 relieve himself from liability by alleging 

that it is sufficient that the damages were caused by someone on the cargo owner 

side, i.e., the sender. The question has never been dealt with in the case law, but 

most likely a court would say that unlike the special risks in section 29 the carrier 

can only relieve himself from liability if the damages were actually caused by the 

one who is claiming compensation. 

III. Liability of the Carrier 

A. Basis of Liability 

578. In the Scandinavian countries it has been discussed whether the basis of 

the carrier liability in the CMR Convention as well as in the different Scandinavian 

Inland Carriage of Goods by Road Act is fault or if it is a strict liability. In Sweden 

for example, Professor Kurt Grönfors has suggested that the liability of the road 

carrier should be viewed as a liability based on fault, while Bengt Waldersten have 

taken the view that it is a strict liability. 1 Also the Scandinavian courts seem to be 

divided here. This is illustrated by the cases ND 1997, p. 167 from the Supreme 

Court of Denmark and ND 1998, p. 226 from the Supreme Court of Norway (NH). 

The facts in the Danish and the Norwegian cases were quite similar. In both cases 

dry fish were carried from Scandinavia to Italy. During a night stop at an parking 

area that was occasionally patrolled by the police along the motorway near Naples 

the truck was hi-jacked and driven to a warehouse where the goods were loaded off 

the truck. The driver was then dumped along the motorway together with the empty 

truck. The question put before the courts in both cases was whether the carrier was 

liable for the loss of the goods according to Article 17(2) of the CMR Convention. 

1. See Grönfors, K., Inledning till transporträtten, (Stockholm, 1984), 73 and on the other 

side Waldersten, B., Köp och försäljning av transporter på väg, (Stockholm, 1990), 120, 

cf. also Ramberg, J., The Law of Carriage of Goods: Attempts at Harmonization, ETL 1974, 

14-16. 

579. In the first case the Supreme Court of Denmark regarded the carrier as 

liable for the loss. The reason for that was that the carrier had an obligation to 

choose a safe parking area, i.e., a special guarded parking area, and there were such 

areas in the neighbourhood. The carrier had not done that and as a consequence of 

this he was liable for the loss. The judgment here indicates that the Supreme Court 

considered the liability in Article 17 to be a strict one. The court did not attach any 

importance to the question whether it was reasonable to require the carrier to use a 

safe parking area. 



580. In the second case the NH discussed the problem more in terms of a 

liability based on fault. The court here stated that the Norwegian Council of Export 

had recommended truckers to use the service stations situated along the motorways. 

Indeed there were special guarded parking areas in the neighbourhood, but they 

were usually situated along smaller roads and only open for members of the Italian 

Trucker Association. Besides the Export Council had warned the carriers to use the 

smaller roads during the night. In the light of this the court considered that according 

to the circumstances the carrier could not reasonably have done anything more 

to prevent the loss and he was therefore relieved of his liability for the goods. 

B. Exoneration of Liability 

581. Even if it is uncertain whether the Supreme Court of Sweden (SH) would 

consider the liability of the carrier as a strict one or as a fault liability it is perfectly 

clear that it is a stricter one compared to the liability of the sea carrier. The carrier 

will only be relieved of his liability in situations where he can prove that he acted 

with utmost care. What is meant by ‘utmost care’ is shown by a comparison 

between the two Danish cases ND 1996.123 SøHa and UfR 2000.1400 SøHa. In the 

first the facts were as follows: 

JN Spedition here agreed to transport a consignment of frozen shrimps from 

Hirtshals in Denmark to Moscow in Russia. At the arrival to Moscow the 

driver got instructions from the agent of the carrier how to find the way to 

office of the consignee, Hokkey. There he met two men, who presented 

themselves as Ivanov and Marosov. Ivanov then told him that there were some 

problems with the veterinary authorities and that the driver had to wait for 

further instructions at a parking area. After two hours’ waiting the driver 

returned to the office and there he was told that in two hours someone would 

pick him up and escort him to the warehouse where the goods were to loaded 

off the truck. However no one showed up and the day after the driver once 

again went to the office for further instructions. One hour later Marosov escorted 

him to the warehouse and after the discharge of the goods the driver returned 

to Finland. A couple of months later the consignee suddenly claimed that the 

goods were lost in connection with the delivery in Moscow. 

582. The Maritime and Commercial Law Court of Copenhagen here relieved 

the carrier from his liability for the loss on the ground that the driver had no reason 

to be suspicious. There was no indication at all of that something was wrong. The 

fact that the address to the office and not the address to the warehouse was marked 

on the consignment note did not change that. 

583. In the second case the Maritime and Commercial Law Court did not relieve 

the carrier from his liability for the lost goods. The facts in this case were as follows: 

Here the carrier, Samson, agreed to transport a consignment of radio transmitters 

to the company Europlus in Moscow. At the time when the driver arrived to 



the address marked in the consignment note he asked for the way Europlus 

at a pharmacy in the neighborhood. He was told that there were several companies 

that had their offices here, but no one opened before 10 o’clock. After 

an hour a man showed up and presented him as Andrej. He identified himself 

by showing the driver a simple company label and told the driver that the 

goods were to loaded off the truck at another address. At the new address 

Sergej waited. He told the driver that he was working as a guard at Europlus 

and that he was going to accompany the driver while Andrej arranged the 

custom clearance. After having waited for two hours the driver got out of the 

cabin in order to check the truck. When he got in again Sergej fired a gas 

pistol at him. When he woke up again after two hours the truck was gone and 

the goods lost. 

584. The reason why the court did not relieve the carrier from his liability even 

if it was impossible to avoid the assault itself, was that it was to be considered 

as reckless to follow an unknown to an unknown address, especially since the 

foreigner had only identified himself by using a simple company label. 

585. It is also important to notice that not only the force majeure-event in itself, 

but also the consequences of the event must appear as unavoidable. This is shown 

by the Norwegian case ND 1985.212 from the District Court of Frostating: 

In this case a transformer were to be transported from Steinkjer in Norway to 

a consignee in Jämtland, Sweden. However the transformer was damaged as 

the driver made an evasive maneuver in order to avoid a collision with an elk 

that crossed the road in front of the truck. As a result of the maneuver the 

truck skidded and overturned. The carrier here alleged that the was impossible 

to avoid such damages especially since the driver had very little time to react 

in situations like this. 

586. The Court here admitted that generally there is a limited scope for making 

mistakes situations like this, but in this case the driver have had time to think and 

react differently. The distance between the elk crossing the road and the truck was 

so great that the adequate thing to do here had been to drive straight ahead instead 

of making an evasive maneuver. In other words it was impossible to avoid the 

situation that the elk crossed the road, but the consequences, i.e., the collision, 

could have been avoided if the driver had acted differently. 

587. There must of course exist adequate causation between the handling of the 

goods and the damage to them. An example of this is to be find already in the text 

of section 28, where it is regulated that the carrier is relieved from his liability if he 

can prove that the damages were due to inherent vice of the goods. It is also 

possible to say that the special risks referred to in section 29 a) transports with 

the use open unsheeted vehicles if expressly agreed, d) the nature of certain kinds 

of goods which particularly exposes them to losses and damages and f) carriage 

of livestock represents situations where there usually do not exist any adequate 

causation between the handling of the goods and the losses or damages. For 



example it does not matter how careful the carrier is, during a transport of livestock 

over long distances some animals will always die. Another example is the already 

discussed Norwegian case ND 1998.226 NH. Here one of the judges found that 

because of the fact that the driver had got the instructions to contact a freight 

forwarder in Aosta at the Italian border and that the truck was shadowed by a white 

Mercedes car on the motorway. The following robbery at the parking area was a 

put-up job and consequently something that the driver could not avoid. 

C. Sharing of Liability between the Claimant and the Carrier 

588. The carrier will also according to section 28 be wholly or partly relieved 

from liability in situations where the claimant has contributed to the loss or damage 

by a wrongful act or neglect. An example of a wrongful act is given already in the 

text of section 28; if the claimant gives the carrier wrongful instructions the latter 

one will be relieved from his liability. In the international literature on the corresponding 

provision in Article 17 of the CMR Convention it has been debated 

whether the carrier is able to escape his liability in relation to the consignee by 

saying that the sender caused the damages by giving wrongful instructions. In other 

words: is it here sufficient that someone on the claimant’s side contributed to the 

loss or damage? In Belgian and French law there seem to be a tendency to say that 

it is sufficient that there is a wrongful act or fault on the claimant’s side. 1 In the 

English literature the authors have rejected that on the reason that such construction 

clearly contradicts the text of the English version of the convention. 2 A Swedish 

court would here probably agree with the latter view of what should be considered 

as the position of law according to the Inland Carriage of Goods by Road Act. The 

consequence of this is that the carrier can only in relation to the consignee plead 

that the sender has contributed to the loss or damage in cases where there is a 

special risk according to section 29. 

1. Rodière, para. 71 and Loewe, para. 151. See also App. Paris 2.12.81 BT 1982.73. 

2. Hill, D.J. & Messent, A.D., CMR: Contracts for the International Carriage of Goods by Road, 

(London, 1984), 116. 

589. Even if there clearly is a wrongful act on the claimant’s side there seem to 

be a general tendency among the courts to adopt a rather restrictive attitude towards 

the carrier. Often the courts seem to disregard the fact that for example a wrongful 

instruction was given regarding the handling of the goods by saying that a professional 

carrier ought to have known how the goods should be handled. This is the 

case even in situations where the carrier has managed to establish a special risk 

according to section 29, despite the fact that there is a presumption in paragraph 2 

that the loss or damage actually was caused by the special risk. This could be 

illustrated by the case ND 2001.6 Svea: 

Here the carrier, J&S, agreed to transport a stator that had a weight of 22 tons. 

J&S, which was responsible for the loading placed the stator on two girders, that 

was supplied by the sender, ABB. After that the stator was secured by cables and 

belts. In a roundabout the stator was displaced and as a consequence of this 



damaged. In the following case the carrier alleged that the sender had acted with 

fault in supplying girders that were not suitable for bearing the heavy stator. 

590. The Appeal Court here came to the conclusion that the sender had not 

contributed to the damages by supplying the girders. According to the Court J&S 

was specialized at transport of heavy goods and they had without any reservations 

accepted to load the stator by using the girders supplied by the sender. 

591. However in the case RH 1998:7 the Appeal Court of Western Sweden 

came to the opposite conclusion: 

The carrier here agreed to transport a milling cutter from a school in Halmstad. 

In a bend the machine was displaced inside the truck and damaged. The carrier 

here alleged that the damages were due to the fact that the sender had supplied 

a pallet that was not suitable for the transport of the milling cutter. The sender 

replied to that by saying that the machine had not been sufficiently secured 

inside truck by the driver before the journey. 

592. The Court here stated that the pallet must be regarded as a sort of package 

and that the carrier had managed to establish a special risk according to section 29. 

In line with the presumption in section 29 paragraph 2 the defective pallet must be 

regarded to have caused the damages and the sender had not managed to prove that 

this was not the case. In other words the Court here expressed the view that a 

carrier has no obligation to notify the sender even if he is aware that the goods will 

not stand the transport. 

593. The way that the Appeal Court of Western Sweden applied the presumption 

in section 29 paragraph 2 may be criticized. The presumption ought only to be used 

in situations where there are two possible causes to the loss or damages that are 

independent of each other, like in the Swedish case ND 1999.51 Stockholm. The 

case concerned the corresponding provision in Article 37(2) of the CIM- (Convention 

on Carriage of Goods by Rail) Rules: 

Here, rolls of paper were carried by the state-owned railway company, SJ, 

from Frövi in Sweden to Limburg in Germany. The rolls were loaded by the 

sender, Stora Enso. At the arrival in Limburg it was discovered that some of 

the rolls had been damaged in the end. The cause of the damages was most 

likely that the floor that the rolls had been loaded on had not been properly 

swept. The carrier here alleged that the sender was liable for this since he had 

loaded the paper rolls, while the sender replied that he had followed the 

loading instructions from SJ to the letter. 

594. The court here concluded that the carrier was not liable for the damages. 

He had managed to establish that the transported paper rolls were loaded by the 

sender. In other words there was a presumption that the actual loading of the paper 

rolls had caused the damages and not the fact that there was something missing in 

the general loading instructions that the sender had got from the carrier. 



595. The fact that the carrier has been found liable even if the sender was 

responsible for the loading does not indicate that the carrier has an obligation 

to check the whole consignment. This was confirmed by the Maritime and 

Commercial Law Court of Copenhagen in the case ND 1994.50 SøHa: 

The carrier here promised to carry a consignment of fish packed in boxes from 

Denmark to United Kingdom. The sender loaded the trailer himself. During the 

voyage across the North Sea the boxes collapsed inside the trailer. The carrier 

here alleged that he had to be relieved from his liability because of the fact that 

the sender had carried out the loading of the truck. The sender replied that the 

carrier had not intervened and objected to the method of the loading the goods. 

596. The Court here came to the conclusion that the carrier was not liable for 

the damages because of the fact the sender had loaded and stowed the goods 

according to their own methods. It was specifically pointed out that the driver 

had not been able to check that the first pallets with boxes inside the trailer were 

sufficiently secured. 

D. Compensation 

597. In line with Article 23(1) of the CMR Convention the compensation is in 

case of loss and damage limited to value of the goods at the place where they were 

received for carriage. The value are to be calculated according to the commodity 

exchange price or the market price. In practice the price is very often based on the 

invoice. This could give rise to difficulties in situations where there exist several 

different invoices. In the trade on Russia it is not unusual that the parties to the sale 

agreement are using two invoices, one indicating the real price which is sent to the 

consignee and one that is distributed to the carrier, indicating a considerably lower 

price. The idea behind this system is to try to minimize the risk for theft by not 

disclosing the real value of the goods. Both Danish and Finnish courts have found 

that in such a situation the value of the goods is to be calculated according to the 

invoice that is indicating the real value, even if the carrier was not aware of that 

invoice. In for example the Finnish case ND 2000.179 from Kouvala Appeal Court: 

In this case a consignment of shoes were carried by sea from Hong Kong 

to Kotka in Finland. The shoes were then carried by truck from Finland to 

Moscow in Russia. During the last land leg the shoes were lost. The cargo 

insurer, Eagle Star, paid the sender an amount of 77,000 USD which was 

indicated as the value of the goods according to the invoice that was distributed 

to the consignee. Eagle Star then claimed compensation from the carrier, 

Saimaa. The carrier admitted that he was liable for the loss, but refused to pay 

more than 26,000 USD, which was indicated in the invoice that he was equipped 

with as the value of the goods. 

598. The Court here motivated its conclusion by saying that the invoice was 

not to be considered as a part of the transport agreement and according to the CMR 



Convention the value of the goods were to be calculated according to the provision 

of the convention, i.e., the market price that was indicated by the original invoice 

between the sender and the consignee. 

599. The compensation is also limited to certain amounts. Unlike the CMR 

Convention the limitation level according to the Inland Carriage of Goods by Road 

Act is not set out in Special Drawing Rights (SDR) but in Swedish kronor (SEK). 

The limitation is SEK 150 per kilogram of the goods lost or damaged. This is equal 

to approximately 13.6 SDR. Except for this the carrier as in the CMR Convention 

Article 23(4) also has only to refund the freight, customs duties and other charges 

incurred in respect of the carriage. In Scandinavian law the concept of ‘charges 

incurred in respect of the carriage’ has been given a very wide meaning. In the Danish 

case ND 1987.108 DH the Danish Supreme Court in line with the well-known English 

case Buchanan v. Babco, that excise duty were to be considered as such charges: 

The facts of the case was very similar to those of the Buchanan case. Here a 

consignment of liqour were carried from Holland to Denmark. The liquor was 

stolen before the truck had crossed the border and as a consequence of this the 

buyer was forced to pay taxes to the Dutch government as if the consignment 

had been sold on the domestic market. 

600. The Supreme Court here explicitly referred to the Buchanan case as it 

came to the conclusion that those taxes were covered by the expression ‘charges 

incurred in respect of the transport’. However a prerequisite is that there exist 

adequate causation between the transport and the charges. In the aftermath of the 

ND 1987.108 the Appeal Court Vestre Landsret has decided that the provision 

is applicable where the sender had to pay for the destruction of the damaged 

chemicals that were transported. 1 

1. See the case ND 1996.172 VL. 

601. In case of delay the carrier is liable also for consequential losses, however 

the amount of compensation payable is here limited to the amount of the freight. In 

the preparatory work it is assumed that in a case where the goods are both damaged 

and delayed the sender or the consignee has the right to invoke the provision on 

delay in addition to that on damage as long as the amount of compensation does not 

exceed the maximum amount payable as a result of a total loss. 

602. As in the CMR Convention Article 29 the carrier will according to the 

Inland Carriage of Goods by Road Act section 38 will lose his right to limitation if 

he causes the loss or the damage by acting with intention or gross negligence. Even 

if the SH in the case ND 1986:27 SH declared that it is not necessary that the 

carrier or the person for whom he is responsible is aware of the risk, it seems that 

the Court tend to interpret the concept of gross negligence narrowly: 

In this case the carrier agreed to transport an excavator from Sollentuna to 

Täby outside of Stockholm. In Täby the excavator was damaged because of 



the fact that the driver did not observe the signs showing the free height before 

he drove under a viaduct. In the following testimony the driver admitted that 

he actually had seen the signs and that he was aware of the height of the 

excavator, but that he did not manage to put two and two together. 

603. According to the Court it was required that the carrier had acted with fault 

of a very serious nature in order for him to lose his liability. It was evident that at 

the very moment when the driver drove under the viaduct he did not think of the 

fact that the excavator was too high for driving under the viaduct. This was to be 

considered as a serious sort of negligence, but not that serious that the carrier would 

lose his right to limitation. 

IV. Time Limits for Complaint and Action 

A. Complaints 

604. On this particular point the Inland Carriage of Goods by Road Act differs 

a lot from the CMR Convention. According to the CMR Convention Article 30 

the consignee must notify to the carrier at once regarding losses and damages that 

are apparent and within seven days regarding non-apparent losses and damages. 

In cases of delay the consignee must notify the carrier within twenty-one days. 

Regarding the Inland Carriage of Good by Road Act not only the consignee, but 

also the sender may notify the carrier. The notice must regardless of whether there 

is a loss, damage or delay be left within due time. The reason why the domestic 

provisions differs from the provisions in the CMR Convention is that the Road 

Transport Committee in 1974 preferred a more simplified regulation that were 

more similar to the one in the national Sale of Goods Act. 

605. What is then meant by the expression ‘within due time’? As a general 

principle the type of goods and other circumstances in the case must be taken into 

consideration. The more simple goods that are carried the sooner the sender or the 

consignee must notify the carrier. If for example fresh fruit are carried the sender 

or the consignee must notify the carrier almost immediately when the goods are 

delivered. In other words the consignee has an obligation to inspect the goods at 

the delivery. On the other hand if a machine is delivered in parts the sender or the 

consignee could normally await notifying the carrier until it has been installed, 

provided that the damages are not visible and that the installation is carried out in 

due time after the delivery. 

606. Another important difference between the provisions on complaint in the 

CMR Convention and the Inland Carriage of Goods by Road Act is that while 

according to the convention the failure of notifying the carrier normally only results 

in a shift of the burden of proof, i.e., the claimant will get the burden of proof 

for that the carrier damaged the goods, the consequence according to the Inland 

Carriage of Goods by Road Act is that the owner of the goods is not allowed to 

claim compensation for these damages at all. The provision is in other words here 



preclusive. In this respect the Inland Carriage of Goods by Road Act is much 

stricter than the CMR Convention. 

607. The notice of complaint need not to be detailed. It is sufficient that the it 

indicates that the goods have been lost or damaged and that the sender or the 

consignee intends to claim compensation for this. This goes along with the fact 

that the claimant normally must notify the carrier within a rather short period of 

time. 

608. Another important problem here is to whom the notification should be 

addressed. This problem arises in situations where the goods are transported by 

sub-carriers or by successive carriers. Regarding sub-carriage the position of the 

law is not clear. In a situation where the goods are delivered by a sub-carrier it is 

possible to argue that it is sufficient that for example the consignee notifies the 

sub-carrier. This is in line with the regulation in Chapter 13, section 38 of the MC. 

However in the case NJA 1996.211 the Swedish Supreme Court stressed that there 

was no room for applying the provisions regarding joint liability if the consignment 

had not been accepted by and transferred to the sub-carrier. Since the idea behind 

the notification is to give the carrier an opportunity to prepare for the rebuttal of the 

claims this speaks in favor of that the claimant here must address the notification 

to his counterpart, i.e., the carrier, and not the sub-carrier. 1 Regarding successive 

carriage it appears logic to assume that the sender or the consignee must notify one 

of the carriers that he is according to section 44 of the Inland Carriage of Goods by 

Road Act entitled to sue, i.e., the first and the last carrier and in addition to this the 

carrier that during whose transport the loss or damage occurred. 

1. Cf. the Norwegian case ND 1995.238 NH, where the Supreme Court came to the opposite 

conclusion that the carriers in a similar situation were to be seen as a unit and consequently 

they had a joint liability. 

B. Actions 

609. As in the CMR Convention the scope of application of section 41 covers 

more than only the liability of the carrier for losses and damages to the goods. 

This is indicated in the text by the words ‘claims arising out of the carriage’. As 

a general principle section 41 covers all claims based on the transport agreement. 

To what extent section 41 also covers non-contractual claims is difficult to answer. 

In the so-called Vikingstad case (T 5180-04) the Supreme Court has indicated that 

they seem to be prepared to go quite far in this direction in order to preserve the 

one year period of limitation: 1 

In this case the carrier Vikingstad undertook to carry a bunkers oil to from a 

terminal to a ferry in the port of Oxelösund. The carrier also agreed to mix the 

oil during the loading. However, the carrier did not mix the oil in a correct 

way and as a consequence of this the machinery on board the ferry was 

damaged. The question put before the Supreme Court was whether the claim 

was time-barred under the Carriage of Goods by Road Act or whether the 



claim was subject to the general rules on limitation of actions, i.e. was subject 

to a ten year period of limitation. 

1. Shell Chemicals U.K. v. P&O Roadtanks Ltd. [1993] 1 Lloyd’s Rep. 114 Q.B. 

610. The Supreme Court here held that the claim was subject to limitation 

under section 41 and as a consequence of this time-barred. The Court indicates that 

it was the intention that section 41 and the corresponding provision in the CMR 

Convention ought to be given a broad scope of application. However, even after 

this case it is not possible to exactly draw the line between section 41 in the 

Carriage of Goods by Road Act and the general rules on limitation of actions. Most 

likely the Court considered the mixing of the oil to be a part of the loading, but at 

a certain point it becomes difficult to allege that an injury or damage should be 

subject to the special limitation rule even if it has in fact arisen out of the carriage. 

An example here might be that the carrier injures the receiver of the during the 

discharge of the goods. 

611. The period of limitation of actions is, as in the CMR Convention, one 

year, except for cases where the carrier has caused the delay, loss or damage with 

intention or by gross negligence. In such situations the period of time is extended to 

three years. According to section 41, paragraph 2 a) the time shall in case of 

damage or delay start to count upon the delivery of the goods to the consignee. An 

important question here is what constitutes a delivery according to the Inland 

Carriage of Goods by Road Act or the CMR Convention. The general rule here is 

that the consignee or his agent must actually have taken care of the goods. However 

in a situation where the consignee refuses to take care of the goods it is according 

to the case ND 1974.86 Western Sweden sufficient that the consignee has been 

given the opportunity to do so in order to make the period of limitation of action to 

start to run: 

The case concerned a consignment of chemicals sensitive to frost that were 

carried from Welwyn Garden, United Kingdom to Gothenburg, Sweden. 

During a stop over the night in the harbor of Gothenburg, after the trailer had 

been discharged from the ferry, the temperature fell considerably and as a 

consequence of this the goods were damaged. The consignee then refused to 

take care of the goods, instead he ordered those to be returned to England. 

However he offered to store the goods in waiting for the return transport to 

England. 

612. The Appeal Court of Western Sweden here came to the conclusion that 

even if the consignee had refused to take care of the goods, he had anyway taken 

delivery of those by inspecting it and offering to store it on the account of the 

sender. 

613. In section 41, paragraph 2 b) it is regulated that in case of losses the 

period start to count sixty days after the date on which the goods ought to have 

been delivered. Normally there should be no difficulties in differencing between 



losses and damages. A loss occurs when the goods are never delivered to the 

consignee indicated in the consignment note. In other words it does not matter if 

the goods are later totally condemned by the cargo insurer, the limitation of action 

will still not be subject to section 41, paragraph 2 b). 

614. In relation to little a) and b) section 41, paragraph 2 c) works as an 

additional regulation. This is indicated in the text by the words ‘in all other cases’. 

For example the carrier’s claims for unpaid freight as well as the sender’s claims 

for excessive freight are subject to the limitation in little c). An important problem 

here is if the sender can rely on this provision in cases where for example the claim 

for the return of freight is related to damages to the goods. The answer to this is 

most likely no. The reason for this is that all claims related to one incident should 

be time-barred at the same time. 

615. The period will here start to count three months after the transport agreement 

was concluded. I practice it can prove to be difficult to establish at what time 

the agreement was entered into by the parties, especially since the are no formal 

requirements here. It has been suggested that in dubio the date of the consignment 

note should be used even if that date most often relates to the receiving of the 

goods. 

616. The provisions on time limits of action also regulates the relationship 

between the carrier and his sub-carriers, i.e., the time limits of the recourse action. 

It is important to notice here that the Swedish Supreme Court in the case NJA 

1996.211 refused to apply Article 39 where the carrier is granted an extra year to 

sue the performing carrier that actually caused the loss or damage to the goods. The 

facts were as follows: 

Here Continex as a contracting carrier agreed to transport a consignment of 

wool from Sweden to Italy. The goods were then actually transported by 

Walter, which issued a consignment, in which Continex was indicated as the 

sender of the goods. Outside Bologna the goods were damaged due to a road 

accident and as a result of this Continex paid compensation for this. Continex 

then turned against Walter in a recourse action and claimed compensation for 

this. However Walter alleged that Article 39 was not applicable because of the 

fact that this was not a case of successive carriage. The case were to be 

decided according to the provision of Article 32 and as a result of this the 

claim was time-barred. 

617. The Supreme Court here agreed with Walter that the case should be 

decided according to Article 32 and not to Article 39. The reasons for not even 

making an analogy to Article 39 was that Walter had never accepted the original 

consignment note between Continex and sender. In other words there was no 

joint liability here between the carriers. Instead there were two separate transport 

agreements one between the sender and the contracting carrier and one between 

the contracting carrier and the performing carrier. This was indicated by the two 

separate consignment notes. 



618. The consequence of this decision is that in a situation like this the 

contracting carrier could easily find himself in a rather difficult situation. If he is 

sued by the sender on the day before the claim is time-barred he will have to 

address a claim to the sub-carrier on the same day. Otherwise he will risk that he 

has to compensate the sender without the possibility to later claim compensation 

from the sub-carrier in a recourse-action. The situation is even more difficult 

according to the Inland Carriage of Goods by Road Act than compared to the CMR 

Convention because of the fact that the possibility to suspend the time-period does 

not exist in the former regulation. In a situation like this the contracting carrier 

actually has to sue the performing sub-carrier on the same day. 


Index 

Index 

adjustment fee: 65 

arrest: 67-68, 146, 175, 176-179, 348, 

539-540 

Arrest Convention: 68, 176, 539 

Attachment: 67-68, 170, 175, 540 

average adjuster: 62-66 

Barcelona Agreement on the Freedom 

of Transit: 97 

Barcelona Transit Convention: 99, 120 

bareboat charter: 151, 224, 231, 234, 281, 

356, 360-366, 421-422 

baseline: 81-85, 87, 89, 91 

bill of lading: 359, 376, 399-414, 423-424, 

427, 430, 434, 452-456, 478, 562 

boat insurance: 62, 64 

Brussels Convention: 66, 320, 473 

carriage of passengers: 355, 415, 559-561, 

619, 621-623, 636-639 

charts: 85, 129, 131, 136 

Civil Aviation Administration: 4, 16 

Civil Liability for Oil Pollution: 71 

CLC convention: 46, 140, 322 

CMI: 48 

CMR: 50, 56-57, 557, 562-567, 569-570, 

572, 575, 578, 588, 597-599, 602, 

604, 606, 609, 611, 618, 628, 630, 

644, 646, 648, 650, 654 

COLREG: 201 

combined transport: 641, 652 

consignee: 56, 399-404, 410-414, 423, 

430, 434, 437, 440, 451, 454, 557, 

567-568, 572, 575, 576-577, 581, 

587-588, 597-598, 601, 604-608, 

611-613, 619, 625-626, 634, 

640, 648 

contiguous zone: 88 

continental shelf: 89-91, 126, 

contract of carriage: 282, 317, 400, 

402-403, 433, 435 

contracting carrier: 401, 416 

contractor: 401-403 

Contracts of Affreightment: 396 

COTIF 49, 56, 619-620, 624 

Despatch: 269, 391 

economic zone: 91-93, 95, 140-141 

exclusive economic zone: 91 

external waters; 83-86, 88 

fairway charge: 120-122, 124 

flags of convenience: 148, 222, 224, 279 

freight forwarder; 587, 652-654 

freight, definition: 385-387 

general average: 25, 40, 48, 62, 

172, 334 

global limitation: 317-319, 324, 336, 

351, 450 

Hague Protocol: 51, 57, 634 

Hague Rules: 44-45, 48, 52, 433 

Hague-Visby Rules: 44, 52, 357, 477 

Hamburg Rules: 52, 357, 433 

Helsiniki Convention: 139, 142 

High Seas: 87, 94, 119, 146 

HNS Convention: 323-324, 350 

hull insurance: 529, 547-549, 

552-555 

innocent passage: 86-87, 95 

intermediary: 654 

internal waters: 80-82, 86, 95, 97-103, 

120, 215, 471 

ISM Code: 55, 205, 208 

laytime: 391-392 

limitation fund: 348-349 

limitation of liability: 45, 306, 

449-450 

Transport Law – Suppl. 26 (February 2009) Sweden– 187

Index 

marine insurance: 24, 62, 544-555 

Maritime Courts: 5, 58-60, 68, 70-71, 

176, 348 

maritime declaration: 60-61 

maritime law, definition: 19-25 

maritime lien: 34, 37-38, 165, 167-174, 

177, 179, 183, 258, 302, 320, 331, 

361, 497, 537, 539-540 

MARPOL Convention: 139, 142, 201 

Master, definition: 265-276 

Montreal Convention: 51, 419, 634, 636, 

650 

multimodal transport: 19-20, 22, 556, 

641-654 

national water: 77-78 

no cure no pay: 497, 506-514, 541 

NSAB: 652-654 

NtM: 111, 136 

off hire: 370, 379, 382 

oil pollution charge: 141 

P & I insurance: 547 

Paris Memorandum of Understanding: 208 

pilotage: 101, 119, 121-124, 172, 305 

pollution liability: 46, 55, 71-72, 93, 103, 

139-144, 201, 305, 309, 313, 319, 

322-323, 334, 351, 446, 529 

port state control: 208 

private water: 104-107, 109 

public waters: 104-105, 107, 109 

PWC: 156 

receiver: 400-401, 407, 409, 423, 427, 434 

registration of ships: 70, 158-161, 166, 183 

right of navigation: 109 

right of public passage: 107, 109 

salvage: 40, 45, 161, 167, 172, 256, 258, 

270, 309, 326-327, 333-334, 498-543 

SDR 321, 336 

Seamen’s Act: 230, 234, 237, 239, 243, 

245, 248, 253 

seaworthiness: 201-202, 238, 267, 313-315, 

345, 372, 375, 429-430, 435, 555 

sender: 400-401, 570-575, 577 

ship: 147, 154 

ship collision: 45, 58, 332, 459-488 

ship master, definition: 265 

shipbuilding: 158, 182, 217 

shipowner, definition: 280-281 

shipper: 325, 400, 402-411, 414, 433, 

454, 652-653 

shipping partnerships: 58, 228, 284, 

288-302 

SOLAS 45, 54, 201 

space charters: 389 

strict liability: 130, 135, 310, 418-419, 

441, 453, 475, 563, 570, 572-575, 

578, 621, 625-626, 628, 637, 

639, 645 

STWC Convention: 206, 253 

sub-carrier: 400-401, 426, 608, 616, 618 

successive carriage: 57, 608, 616, 641 

Swedish Maritime Administration: 

4, 54, 69 

Swedish Rail Road Administration: 4 

Swedish Road Administration: 4 

territorial sea: 83-87, 95, 101, 119, 125, 

14-141, 471 

territorial waters: 86-87, 145-146, 471 

time charter: 281, 367-383, 394, 425, 430 

transit passage: 87, 95, 145 

transit rights: 80, 88, 99, 145 

trip charters: 371, 381-383 

UNCITRAL: 52, 642 

UNCLOS: 79-84, 87-89, 91, 94-95, 

101, 119, 125, 140-141, 147 

unit limitation: 317 

VAT: 196-200 

vessel: 147, 154 

vessel operator, definition: 280 

vicarious liability: 32, 37, 58, 305-309, 

320, 331 

voyage charter: 384-394, 424, 434 

voyage freight: 386 

Warsaw Convention: 51, 57, 634 

water pollution charge: 71 

waterways: 8, 21, 74, 111, 118, 172 

waybill: 405, 414, 431, 454-455, 648 

wreck removal: 108, 118, 172, 334 

York Antwerp Rules: 48 

188 – Sweden Transport Law – Suppl. 26 (February 2009)

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