NORWAY Law and Practice Contributed by: Kristian Lindhartsen, Lilly Kathrin Relling and Tobias Kilde, Kvale Advokatfirma DA
The following requirements need to be met for a company to qualify under the tonnage tax regime. • The shipping company must be registered in Norway or the EEA. • The minimum requirement for assets is primarily ownership of a qualifying vessel or ownership of at least 3% in a company or chain of companies owning such a vessel. There is a required ratio of owned vessels to chartered-in vessels, and certain restrictions to the chartering out of vessels on bareboat to external parties. There is also a restriction as to what assets the company may own. • The company must comply with flag require - ments. 8. Implications of Non- Performance, the IMO 2020, Trade Sanctions and the War in Ukraine 8.1 Force Majeure and Frustration The wording of the specific force majeure clause is decisive for whether certain events, such as global illness, epidemics or pandemics, consti - tute force majeure. Under Norwegian law, the starting point is that professional parties entering into agreements are responsible for their contractual obligations. Therefore, if they have agreed to a contractual obligation, they must fulfil said obligation. If the contract is subject to Norwegian law, the Norwe - gian Sale of Goods Act may be applicable, under which certain force majeure-like events may give grounds to exemption of liability for economic loss caused by a breach of contract. For the exception to become applicable, it must be shown that the breach was caused by a
hindrance that was outside the control of the defaulting party, and that the defaulting party could not reasonably be expected to have fore - seen the hindrance at the time of entering into the contract, nor avoid or remedy the conse - quences of it. The decisive factor is the actual effect the hin - derance has, rather than the nature of the hin - derance in question. When considering whether the breach would be considered a force majeure event, the following should be considered: • review of the contract or statute applicable; • consideration of the underlying cause for the hinderance; • the foreseeability requirement (was the hin - derance foreseeable?); • formalities connected to invoking force majeure; and • mitigation/remedy. The Norwegian Court of Appeal ( Gulating Lag- manssrett ref LF-2021-146849) handled a case during the pandemic regarding this current prob - lem. The case concerned a contract of delivery of salmon, which had to be cancelled due to the COVID-19 pandemic. The issue was whether the cancellation was a breach of contract or whether the pandemic constituted a force majeure event, thereby giving contractual grounds for the can - cellation. The court found that this qualified as a breach of contract, as the event was not within the force majeure clause, and the non-perform - ing party was liable for the loss. 8.2 Enforcement of the IMO 2020 Rule Relating to Limitation on the Sulphur Content of Fuel Oil MARPOL Annex VI and the EU Sulphur Directive (Directive EU 2016/802) have been implemented in Norwegian law.
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