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HR-2018-869-A
Side 1 
The Supreme Court of Norway - Order - HR-2018-869-A
Authority The Supreme Court of Norway – Order
Date 2018-05-09
Published HR-2018-869-A
Keywords International private law. Jurisdiction. The Lugano Convention.
Summary Following a collision in foreign waters between two ships registered abroad with 
foreign proprietors and managing owners, the proprietor and managing owner of 
one of the ships brought an action in Norway against the Norwegian insurer of the 
other ship. The Court of Appeal had allowed the case. Regarding the question 
whether Norwegian courts have jurisdiction, the Supreme Court found that there 
was no legal basis in Article 2(1) of the Lugano Convention for bringing an action 
directly to the courts of the insurer's domicile state. A majority of four justices 
concluded that Section 3 of the Convention provided a self-contained regulation of 
jurisdiction in insurance matters except for the express reservations in Article 8. 
The conditions for asserting Norwegian jurisdiction under Article 11(2), cf. Article 
9(1), of the Lugano Convention were also not met. The choice of law issue had to 
be resolved under international private law. Section 7-6 subsection 5 of the 
Insurance Contracts Act did not contain a provision on choice of law, as assumed 
by the Court of Appeal, and it fell outside the Supreme Court's authority to assess 
whether the Court of Appeal's result could be upheld on any other grounds. The 
order of the Court of Appeal was set aside. Dissenting opinions 4-1.
Proceedings The Supreme Court HR-2018-869-A (case no. 2017/1119), civil case, appeal 
against order.
Parties Assuranceforeningen Gard – gjensidig –, Stolt Commitment B.V., Stolt Tankers 
B.V. and Stolt-Nielsen B.V. (Counsel Herman Steen and Counsel Kaare Andreas 
Shetelig)
v.
A Line Corporation Trust Company Complex and Marship MPP GmbH Co. KG 
(Counsel Kristian Lindhartsen and Counsel Andreas Stang Lund)
Author Justice Normann, acting justice Sverdrup, justice Bergsjø. Dissenting justices: 
Bull, Tønder.
Last update 2018-11-07

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HR-2018-869-A
Side 2Translation provided by the Supreme Court of Norway.
(1) Justice Normann: The case concerns the question whether Norwegian courts have jurisdiction in 
an action brought directly against a Norwegian P&I insurer after a collision in foreign waters 
between ships registered abroad. The proprietors and managing owners of both ships are foreign 
companies. It also raises the question of whether the claimants may include in their action against 
the insurer a claim against the proprietor and the managing owner of the ship that are allegedly 
liable for the collision.
(2) On 16 December 2015, the cargo ship «Thorco Cloud» sank after colliding with the chemical 
carrier «Stolt Commitment» in Indonesian territorial waters in the Singapore Strait. Six 
crewmembers on «Thorco Cloud» died in the shipwreck. «Stolt Commitment» only suffered 
minor damage in the collision and was back in operation after the damage had been repaired.
(3) «Thorco Cloud» is registered in Antigua & Barbuda. The proprietor is A Line Corporation Trust 
Company Complex – hereinafter A Line. A Line is a company registered on the Marshall Islands 
and is a subsidiary of the Danish shipowner Thorco Shipping AS. Managing shipowner at the time 
of the collision was Marship MPP GmbH Co. KG – hereinafter Marship. Marship had chartered 
the ship in accordance with a bareboat charter party. Marship is registered in Germany.
(4) A Line and Marship will be referred to as the Thorco companies unless a distinction between them 
is required.
(5) Standard Club Europe Ltd., England – Standard Club – is P&I insurer for «Thorco Cloud». The 
ship's hull insurer is Mitsui Sumitomo Insurance Co. Ltd., Japan – hereinafter Mitsui.
(6) «Stolt Commitment» is registered in Cayman Islands. The proprietor is Stolt Commitment B.V., 
and managing shipowner according to a bareboat charterparty is Stolt Tankers B.V. Both 
companies are registered in the Netherlands. The shipowner companies are part of the 
international Stolt group with offices in 26 countries. The parent company – Stolt-Nielsen Ltd. – is 
a listed company registered in Bermuda with headquarters in London. Stolt Tankers B.V., one of 
the four largest subsidiaries in the group, is the owner of 97 companies, one of which is Stolt 
Commitment B.V. Stolt Commitment B.V. and Stolt Tankers B.V. will be referred to as the Stolt 
companies unless a distinction between them is required.
(7) P&I insurer for «Stolt Commitment» is Assuranceforeningen Gard – gjensidig – hereinafter Gard 
– a Norwegian company with headquarters in Arendal. Hull insurer is Gard Marine & Energy Ltd. 
– Gard ME.
(8) Protection and Indemnity Insurance – P&I insurance – is the traditional name for insurance for 
third party liability and certain other losses in connection with ship management. The insurance 
stems from England and has kept its English name. The first P&I clubs were established in 
England in the mid-19th century and originated from mutual hull insurances. Gard is the largest 
player of a total of 13 clubs comprised by the International Group of P&I Clubs, and is exposed to 
claims from all over the world.
(9) On 5 January 2016, A Line, Marship, Standard Club and Mitsui brought an action before Aust-
Agder District Court against Gard and Gard ME requesting a declaratory judgment on liability. In 
a pleading of 27 April 2016, the claimants requested an extension of the case by the inclusion of a 
claim against the Stolt companies as jointly liable parties.
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HR-2018-869-A
Side 3(10) The Gard companies requested dismissal for lack of jurisdiction in Norway under the Lugano 
Convention; alternatively, that the court rule in their favour.
(11) The claimants withdrew their action against Gard ME in a submission of 7 June 2016.
(12) After an oral hearing of the dismissal issue, the District Court concluded the following on 23 June 
2016:
«1.Aust-Agder District Court will hear the action brought by A Line Corporation Trust 
Company Complex and Marship MPP GmbH Co. KG against Assuranceforeningen Gard 
Gjensidig.
2.The action brought by Standard Club Europe Limited and Mitsui Sumitomo Insurance Co. 
Limited against Gard Gjensidig before Aust-Agder District Court is dismissed.
3.The action brought by A Line Corporation Trust Company Complex, Marship MPP 
GmbH Co. KG, Standard Club Europe Limited and Mitsui Sumitomo Insurance Co. 
Limited against Stolt Commitment B.V. and Stolt Tankers B.V. before Aust-Agder 
District Court is dismissed.
4.Assuranceforeningen Gard Gjensidig will pay costs to A Line Corporation Trust 
Company Complex and Marship MPP GmbH Co, of NOK 723 060 – 
sevenhundredandtwentythousandandsixty within two weeks of the service of the order.
5.Standard Club Europe Limited and Mitsui Sumitomo Insurance Co. Limited will jointly 
pay costs to Assuranceforeningen Gard Gjensidig, of NOK 587 519 – 
fivehundredandeightyseventhousandfivehudredandnineteen within two weeks of the 
service of the order.
6.A Line Corporation Trust Company Complex, Marship MPP GmbH Co. KG, Standard 
Club Europe Limited and Mitsui Sumitomo Insurance Co. Limited will jointly pay costs 
to Stolt Commitment B.V. and Stolt Tankers B.V, of 587 519 – 
fivehundredandeightyseventhousandfivehudredandnineteen within two weeks of the 
service of the order.»
(13) The Thorco companies were permitted to bring their action against Gard at the company's general 
venue in Arendal pursuant to Article 11(2), cf. Article 9(1)(a) of the Lugano Convention.
(14) The District Court found that there was no procedural basis for including the claim against the 
Stolt companies. In the court's view, it followed from Article 11(3) of the Lugano Convention that 
only Gard as the insurer had a right to include the two companies, and there was no other venue 
for the claim in Norway.
(15) The action brought by Standard Club and Mitsui was not admitted as the insurance companies 
could not be regarded as «injured parties» with a right under Article 11(2) of the Lugano 
Convention to bring an action directly against the P&I insurer.
(16) Gard appealed item 1 of the conclusion of the District Court's ruling – the decision to hear the 
Thorco companies' action. The Thorco companies, in turn, appealed item 3 – the dismissal of the 
action against the Stolt companies. The Court of Appeal decided that the appeals were to be heard 
jointly, and by way of oral proceedings pursuant to section 29-15 subsection 2 of the Dispute Act.
(17) Agder District Court concluded as follows on 11 April 2017:
«I.In the appeal Assuranceforeningen Gard (Gjensidig) versus A Line Corporation Trust 
Company Complex and Marship MPP GmbH Co.:
1.The appeal against the District Court's order is dismissed as concerns the court's 
decision to hear the case, see item 1 of its conclusion.
2.Assuranceforeningen Gard (Gjensidig) will pay costs of NOK 723 060 – 
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Side 4sevenhundredandtwentythreethousandandsixty – in the District Court and NOK 765 
814 – sevenhundredandsixtyfivethousandeighthundredandfourteen – in the Court of 
Appeal to A Line Corporation Trust Company Complex and Marship MPP GmbH Co. 
within 2 – two – weeks of the service of the order.
II.In the appeal A Line Corporation Trust Company Complex and Marship MPP GmbH Co. 
versus Stolt Commitment B.V. and Stolt Tankers B.V.:
1.Aust-Agder District Court will hear the case.
2.Costs in the District Court and the Court of Appeal are not awarded.»
(18) The Court of Appeal assumed that Gard could be sued in Norway under the general jurisdiction 
provision in Article 2(1) of the Lugano Convention. Although it was then unnecessary to consider 
whether jurisdiction in Norway was consistent with Article 11(2), the Court of Appeal considered 
it nevertheless, and responded in the affirmative. In the action against the Stolt companies, the 
Court of Appeal found that the inclusion of the claims was in accordance with Article 6(1) of the 
Lugano Convention.
(19) Both Gard and the Stolt companies have appealed to the Supreme Court. On 28 August 2017, the 
Supreme Court's Appeal Selection Committee made two identical decisions, reading:
«The appeal in its entirety is to be heard by the Supreme Court before a panel of five 
justices, see section 5 subsection 1 second sentence of the Courts of Justice Act. The 
proceedings are to follow the rules in the Dispute Act concerning appeals against 
judgments, see section 30-9 subsection 4 of the Dispute Act.»
(20) In pleadings to the Supreme Court of 19 March 2018, it was announced that one of the appellants 
in case no. 2017/1119 and in case no. 2017/1124, Stolt Tankers B.V. in an internal restructuring 
process had demerged with effect from 1 August 2017. The tanker business had been separated 
into a new company, taking over the name Stolt Tankers B.V. The rest of the business remained in 
the original company that was named Stolt-Nielsen B.V. The demerger was completed in 
accordance with Dutch company law. It has been stated that the new Stolt Tankers B.V. is fully 
liable for claims arising from the carrier business taking into account any limitation rules, 
including possible liability for damages in the case at hand, while Stolt-Nielsen B.V. is only liable 
for claims limited upwards to net assets remaining after the demerger.
(21) The appellants contend that the new Stolt Tankers B.V. must be joined as a party alongside the 
original company Stolt-Nielsen B.V., see section 15-3 subsection 2, cf. section 15-2 subsection 5 
of the Dispute Act. The respondents have opposed this.
(22) In my opinion, section 15-3 subsection 2, cf. section 15-2 subsection 5 of the Dispute Act must be 
interpreted so that Stolt Tankers B.V. may be joined in the case without the respondents' consent, 
see Skoghøy, Tvisteløsning [dispute resolution], 3rd edition page 488. Stolt Tankers B.V. (new) is 
thus entered as a party to the case before the Supreme Court alongside Stolt-Nielsen B.V. and 
Stolt Commitment B.V.
(23) Appellant no. 1 – Assuranceforeningen Gard - gjensidig – contends the following:
(24) Article 2(1) of the Lugano Convention does not regulate the issue of jurisdiction for a direct action 
against Gard.
(25) Jurisdiction must be determined based on Section 3 of the Convention that provides a self-
contained regulation of jurisdiction in insurance matters, also with regard to direct actions.
(26) This follows directly from the wording of Articles 2(1) and 8 of the Convention, systemic 
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Side 5considerations, preparatory works to the Convention and case law. Norwegian and legal theory 
also holds that regulation of jurisdiction in insurance matters in Section 3 is self-contained and 
exclusive.
(27) The ruling of the Court of Justice of the European Union (the ECJ) 13 December 2007 in Case C-
463/06 Odenbreit does not support the view that Section 3 supplements the Convention's general 
provisions, as the Court of Appeal has assumed.
(28) Jurisdiction under Article 2(1) in the action against Gard cannot be based on purpose 
considerations, as such an interpretation contravenes the wording of the Convention.
(29) It is not unreasonable that a shipping company operating in international waters is not permitted to 
bring an action before the court of the insurer's domicile. Direct actions against the insurer demand 
a special legal basis. Direct actions is permitted neither in England nor in Indonesia. As such, the 
Thorco companies are in the same position as the Stolt companies, and have no legitimate 
expectation of being entitled to bring an action in Norway.
(30) Article 11(2) does not establish jurisdiction for direct claims in Norway. The condition that «such 
direct actions are permitted» has not been met. The choice of law must be made before it can be 
considered whether to permit a direct action. The Insurance Contracts Act section 7-6 subsection 5 
is not a choice of law rule, but a substantive law rule. The choice of law must be based on 
Norwegian non-statutory international private law rules.
(31) Any reliance on Regulation (EC) no. 864/2007 – Rome II – Article 18 is unfounded. Norway is 
not bound by the Regulation, and it differs substantially from Norwegian choice of law rules.
(32) In order to determine the applicable law where no legislation, customary law or other forms of 
firm rules regulating this issue exist, one must first identify the state to which the case is most 
strongly or naturally connected – the Irma Mignon formula.
(33) Direct actions are governed by tort law according to Norwegian choice of law rules. The 
underlying claim for damages is governed by Indonesian law – the law of the place where the 
harmful event occurred. The direct claim against the insurer is most strongly connected to the 
place where the harmful event occurred and to the underlying claim for damages, see the Danish 
Supreme Court ruling 9 October 2017 in Case 5/2015, Assens Havn.
(34) Section 7-8 subsection 2 of the Insurance Contracts Act is not an overriding mandatory rule. In the 
event it should be deemed to be such a rule, it must still come down to a concrete assessment 
whether the provision's terms are met in this specific case.
(35) It is not sufficient that a direct action is generally permitted under Norwegian law. The condition 
in Article 11(2) that a direct action must be permitted entails that it must have a legal basis in the 
case at hand.
(36) In its terms, Gard has departed from the Insurance Contracts Act and included a «pay to be paid» 
provision. A direct claim may only be brought if Stolt Tankers B.V. is insolvent, see section 1-3 
subsection 2, cf. section 7-8 subsection 2 of the Insurance Contracts Act. The company is solvent 
and able to bridge-finance the claims from the Thorco companies.
(37) The courts must review the Thorco companies' submissions regarding insolvency to the extent 
necessary to determine jurisdiction, see section 36 of the Courts of Justice Act.
(38) Assuranceforeningen Gard – gjensidig – has submitted this prayer for relief:
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HR-2018-869-A
Side 6«1.The case is to be dismissed.
2.A line Corporation and Marship MPP GmbH. Co. KG are jointly to pay the costs of 
Assuranceforeningen Gard – gjensidig.»
(39) The appellants no. 2 and 3 – Stolt Commitment B.V. and Stolt-Nielsen B.V. and the joining 
party Stolt Tankers B.V. – contend the following:
(40) There exists no independent basis for international jurisdiction for the action against the Stolt 
companies, as they are not domiciled in Norway. The action against the Stolt companies must, 
however, also be dismissed even if the court agrees to hear the direct action against Gard.
(41) Article 6(1) on joint jurisdiction is not a legal basis for suing the Stolt companies, as jurisdiction 
for Gard cannot be established under Article 2(1). As contended by Gard, Section 3 provides self-
contained jurisdiction rules in insurance matters.
(42) The Thorco companies may not sue the Stolt companies under Article 11(3), as this provision only 
allows the insurer to request that the insured or the policyholder be joined as a party to an action 
against the insurer. The linkage between (1) and (3) in Article 11 indicates that it is the right of the 
insurance company that is regulated. Also under Norwegian law, it is the insurer that is entitled to 
bring the insured into the case, see section 7-6 subsection 3 of the Insurance Contracts Act.
(43) Stolt Commitment B.V. and Stolt-Nielsen B.V. and the joining party Stolt Tankers B.V. have 
submitted this prayer for relief:
«1.The case is to be dismissed.
2.A Line Corporation and Marship MPP GmbH. Co. KG are jointly to pay costs to Stolt 
Commitment B.V., Stolt-Nielsen B.V. and Stolt Tankers B.V.»
(44) The respondents – A Line Corporation Trust Company Complex and Marship MPP GmbH 
Co. KG – contend the following:
(45) In the action against Gard, Norway has jurisdiction under both Article 2(1) and Article 11 no. 2, 
cf. Article 9(1)(a) of the Lugano Convention. The order of the Court of Appeal is based on a 
correct application of the law.
(46) Article 2(1) is a general rule on jurisdiction based on domicile with a special status within the 
Convention. Pursuant to Article 3(1) of the Lugano Convention, exemptions from the main rule on 
domicile jurisdiction require a specific legal basis.
(47) The wording in Article 11(2) does not support the argument that Section 3 provides self-contained 
rules on jurisdiction in direct actions.
(48) There is no reason for assuming that Section 3 is meant to exclude general domicile jurisdiction in 
insurance matters.
(49) In its judgment 13 December 2007 in Case C-463/06 Odenbreit, the ECJ found that the provisions 
in Section 3 are a supplement to the Convention's general provisions, and case law from the Court 
supports that it is contrary to the purpose of the Convention to deny a party the right to bring an 
action before the courts of the respondent's domicile.
(50) Hence, it is not required to assess whether the condition for bringing a direct action in Article 
11(2) has been met in cases where the injured party brings an action before the courts of the 
insurer's domicile in accordance with Article 2(1) of the Lugano Convention.
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Side 7(51) In the alternative, Norway has jurisdiction for the action against Gard under Article 11(2), cf. 
Article 9(1) a.
(52) To determine whether «such direct actions are permitted», the governing law must be determined. 
Section 7-6 subsection 5 of the Insurance Contracts Act is a choice of law rule prescribing 
Norwegian law when an action is brought directly against an insurer in Norway, see the 
preparatory works to the Insurance Contracts Acts.
(53) Should the Supreme Court conclude that section 7-6 subsection 5 of the Insurance Contracts Act 
does not regulate the choice of law, Norwegian law applies in the case at hand according to non-
statutory choice of law rules.
(54) The subject to consider is the existence of an individual connection – the Irma Mignon formula. 
An assessment must be made based on an aggregate contacts test.
(55) Article 18 of Rome II, regulating direct actions, sets out that the injured party may choose between 
the law of the place where the harmful event occurred and the applicable law according to the 
insurance policy. The policy provides that it is governed by Norwegian law. It follows from 
Supreme Court case law that the rules prescribed in EU law should be applied if no alternative 
legislation exists.
(56) Should section 7-6 subsection 5 of the Insurance Contracts Act not be regarded as a choice of law 
rule, the provision may in any case be invoked in support of claims against Norwegian insurers 
brought in Norway with a legal basis in section 7-6 subsection 1 of the Insurance Contracts Act 
being be governed by Norwegian law.
(57) Direct claims are in any case «permitted» under Article 11(2), as section 7-8 subsection 2 of the 
Insurance Contracts Act is an overriding mandatory rule.
(58) The requirement that «such direct actions are permitted» indicates that the essential point is 
whether this is generally permitted under the law of the chosen state. Norwegian law is applicable, 
and Norwegian law generally permits direct actions, see section 7-6 subsection 1 of the Insurance 
Contracts Act. The meaning of this condition cannot be that the court, without prejudice for 
subsequent ruling, must consider individual requirements for the direct claim to succeed as part of 
considering whether the court has jurisdiction. Insolvency is not a requirement for instituting 
proceedings, but a substantive condition subject to regular evidence rules when the direct claim is 
to be considered on the merits.
(59) Under the assumption that the courts agree to hear the action against Gard, it is contended that the 
Stolt companies may be joined in the proceedings.
(60) The Stolt companies may be joined in the proceedings in accordance with Article 6(1) of the 
Lugano Convention. The action against the Stolt companies is not an insurance claim, but a pure 
claim for damages governed by the provisions in Sections 1 and 2 on tort. The claims against Gard 
and the Stolt companies may be joined under Article 6(1).
(61) A number of issues concerning the conditions for liability will be the same in both cases, which 
implies a risk of irreconcilable judgments if the cases are to be decided by different courts. 
Considerations of costs and effective presentation of facts also suggest that the cases should be 
heard jointly.
(62) Under any circumstance, the Stolt companies may be joined in the proceedings with a legal basis 
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Side 8in Article 11(3). Article 11(3) of the Lugano Convention must be read in the light of the general 
rules on joinder of causes of action.
(63) The considerations behind the rules on joinder of causes of action are also applicable here. Barring 
the injured party from bringing the injuring party into the case is not an intended consequence of 
Section 3. The purpose of Section 3 is to protect the weaker party.
(64) There is no reason for differentiating between this case and other cases involving alleged joint and 
several liability without insurance. The Stolt companies' submissions entail that the injured party's 
right to bring an action against the injuring party and the latter's liability insurer will be more 
limited than in other cases on joint and several liability for the same loss.
(65) It is contended that the wording in Article 11(3) is a reference to the chosen country's legal rules – 
Norwegian law in the case at hand. Pursuant to section 15-2, cf. section 15-1 of the Dispute Act, a 
joinder of actions is possible.
(66) A Line Corporation Trust Company Complex and Marship MPP GmbH Co. KG have submitted 
this prayer for relief:
«In the appeal from Assuranceforeningen Gard (Gjensidig) case no. 2017/1119:
1.The appeal is to be dismissed.
2.Assuranceforeningen Gard (Gjensidig), Stolt Commitment BV and Stolt-Nielsen BV 
are jointly to pay costs in the Supreme Court to A Line Corporation and Marship MPP 
GmbH Co. KG.
In the appeal from Stolt Commitment BV and Stolt-Nielsen B.V. case no. 2017/1124:
1.The appeal is to be dismissed.
2.Assuranceforeningen Gard (Gjensidig), Stolt Commitment BV and Stolt-Nielsen BV 
are jointly to pay costs in the Supreme Court to A Line Corporation and Marship MPP 
GmbH Co. KG.»
(67) My view on the case:
(68) The appeal is a further appeal against an order, and the Supreme Court's authority is limited to 
reviewing the Court of Appeal's procedure and general interpretation of a written legal rule, see 
the Dispute Act section 30-6 b and c. «Written legal rules» also include international conventions, 
see Supreme Court rulings Rt-2012-1486 paragraph 25 and Rt-2012-1951 paragraphs 31 and 68. 
Thus, the Supreme Court may review whether the Court of Appeal has interpreted the Lugano 
Convention correctly when presenting Article 2(1) as a basis for bringing a direct action against 
Gard in Norway, and Article 6(1) as a basis for including the Stolt companies.
(69) Whether or not the actions may be brought before Norwegian courts, must be answered based on 
the rules in the Lugano Convention 2007. The Lugano Convention 1988 was, with effect from 1 
January 2010, replaced by the Lugano Convention 2007, but the rules governing the issues in the 
case at hand have not been altered. Case law prior to 2010 is thus of interest.
(70) The Convention applies as Norwegian law, see the Dispute Act section 4-8, and prevails as lex 
specialis over conflicting national rules, see Supreme Court ruling Rt-2012-1951 paragraph 33 
with further references to case law and preparatory works.
(71) The Lugano Convention is modelled on the Brussels Convention 1968 and Council Regulation 
44/2001 – Brussels I – applicable between the EU member states. For the part of the Convention 
text relevant to our case, the rules in the Lugano Convention 2007 and Brussels I are substantively 
identical. That was also the case with the relationship between the Lugano Convention 1988 and 
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Side 9the Brussels Convention, see Supreme Court ruling Rt-2012-1951, paragraphs 34 and 35 with 
further references.
(72) Pursuant to Protocol 2 Article 2 of the Lugano Convention, the courts must duly consider the 
rulings of the ECJ and those of national courts concerning Brussels I. EU case law is thus an 
important source when Norwegian courts are to interpret the Convention, see Supreme Court 
rulings Rt-2012-1951 paragraphs 34 and 35 and Rt-2015-129 paragraph 24.
(73) The Court of Appeal has based its decision on the view that the action against Gard may be heard 
pursuant to Article 2(1) of the Lugano Convention. I will first discuss whether the Court of Appeal 
has interpreted the Convention correctly when concluding that Article 2(1) may also be applied in 
an insurance case like the one in question, for which comprehensive rules are provided in Section 
3. The question is whether Section 3 provides self-contained rules on jurisdiction in insurance 
matters in general, and, in particular, whether Article 2(1) may supplement Article 11(2) in direct 
actions.
(74) Article 2(1) establishes the Convention's main rule that actions can be brought before the courts of 
the state of the domicile «[s]ubject to the provisions of this Convention». This alone indicates that 
other rules in the Convention may prevail as lex specialis.
(75) Section 3, which contains Articles 8 – 14, deals with «Jurisdiction in matters relating to 
insurance». Actions brought directly against the insurer are dealt with in Article 11(2).
(76) Article 8 sets out that «[i]n matters relating to insurance, jurisdiction shall be determined by this 
Section, without prejudice to Articles 4 and 5(5)» Articles 4 and 5(5) have no relevance to the 
issues raised in this case.
(77) The wording in Articles 2 and 8 suggests that Section 3 exhaustively regulates jurisdiction in 
insurance matters except for the express reservations in Article 8.
(78) In my view, systemic concerns suggest the same: Several of the general provisions have parallel 
rules in Section 3. For instance, Article 9(1) permits actions against the insurer in the courts of its 
domicile, and a parallel rule is found in Article 2(1). Under Article 10, concerning P&I insurance, 
the insurer may be sued in the courts of the place where the harmful event occurred, and a parallel 
rule is found in Article 5(3) on the right to sue in the courts for the place where the harmful event 
occurred in matters relating to tort. It is hard to understand the relevance of Section 3 if the general 
rules were applicable.
(79) Section 3 being a self-contained regulation of jurisdiction in insurance matters is also reflected in 
the preparatory works to the Lugano and Brussels instruments, see Jenard Report 27 September 
1968, reproduced in the EC Official Journal 5.3.79, no. C 59/32 and in the Evrigenis and 
Kerameus Report paragraph 45, reproduced in the EC Official Journal, 24.11.86, no. C 298/01.
(80) I also find support for my interpretation in the House of Lords' ruling 16 December 1998 Jordan 
Grand Prix Ltd. and others v. Baltic Insurance Group, page 133 reading:
«The structure of the Convention, the language of Section 3, and in particular the express 
qualification contained in the words 'without prejudice to the provisions of articles 4 and 
5.5' in article 7, demonstrate that Section 3 is a self-contained and exclusive code 
governing insurance.»
(81) The reference to «Article 7» relates to the current Article 8.
(82) The same perception is found in Norwegian legal theory, see Henrik Bull Norsk Lovkommentar på 
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Side 10nett, online comments to the Dispute Act, notes to the Convention's Article 2, and Stein Rognlien 
Luganokonvensjonens kommentarutgave, online comments to the Lugano Convention 1993, page 
163.
(83) The Court of Appeal has referred to the ECJ's ruling 13 December 2007 in Case C-463/06 
Odenbreit paragraph 21, setting out that the regulation of jurisdiction in Section 3 are 
«additional» to the general provisions – in the Danish translation føjes til [are added to].
(84) The Court of Appeal has used this statement in support of its view that the rules in Section 3 apply 
in addition to Article 2(1). However, the statement is not clear, and, under any circumstance, I 
cannot see that Odenbreit has such relevance as given to it by the court of appeal.
(85) The Court of Appeal has also emphasised the purpose – the consideration for the weaker party, see 
Odenbreit paragraph 28. To this I would comment that the ECJ, in that case, referred to purpose 
considerations in support of an interpretation in line with the wording in Article 11(2), cf. Article 
9(1)(b), which had the consequence that the injured party in addition to «the policyholder, the 
insured or the beneficiary» could sue the insurance company in the courts of its domicile, see 
paragraph 26.
(86) In the light of the other legal sources in our case, I cannot see that purpose considerations carry 
much weight. I emphasise that if the purpose were to justify the application of Article 2(1), it 
would entail an interpretation contrary to the wording of the Convention.
(87) Against this background, I find that the Court of Appeal has erred in its interpretation of the 
Lugano Convention when concluding that Article 2(1) permits a direct action brought before the 
courts of Gard's domicile.
(88) The next question is whether the conditions for Norwegian jurisdiction are met under the Lugano 
Convention Article 11(2), cf. article 9(1)(a), as assumed by the Court of Appeal.
(89) Article 11(2) reads:
«Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against 
the insurer, where such direct actions are permitted.»
(90) When determining the jurisdiction the court must first consider the choice of law, see Supreme 
Court ruling Rt-2002-180 Leros Strength page 185:
«When Article 10(2) provides conditions for direct actions, the intention is that this must 
be considered according to lex causae, the chosen law with regard to the substantive legal 
rules, see the Jenard Report, reproduced in Danish translation in De Europæiske 
Fællesskabers Tidende, 5.3.79, No. C 59/32 [EC Official Journal]. This implies that a 
choice of law must be made before it can determined whether jurisdiction is present. The 
jurisdiction provision must be considered in context with the substantive law pursuant to 
lex causae, and the injured party's possibilities of having the claim against the insurance 
company decided on the merits.»
(91) The Lugano Convention 2007 Article 11 corresponds to the Lugano Convention 1988 Article 10.
(92) The choice of law issue must be decided based on Norwegian international private law. Supreme 
Court ruling HR-2016-1251-A Eimskip paragraph 27 reads:
«To establish the choice of law – where there is no legislation, custom or other clear rules 
to regulate the issue – one must find the state to which the case after an overall assessment 
is most closely or strongly connected (the Irma Mignon formula). If the choice of law 
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Side 11issue does not have a clear answer in Norwegian law, there may also be reason to closely 
consider EU's choice of law rules provided in the Rome Regulations. I refer to Supreme 
Court rulings Rt-2009-1537 paragraphs 32 and 34 and Rt-2011-531 paragraph 29 and 46 
on the Irma Mignon formula and the application of the Rome Regulations in Norwegian 
law. ...»
(93) I will first examine whether a statutory choice of law rule exists that may be applied to our case.
(94) The claim against Gard is rooted the Insurance Contracts Act section 7-6 subsection 1, cf. 
subsection 5. Subsection 1 permits the injured party to bring a direct action, and subsection 5 
reads:
«An action against the insurers under this section must be brought in Norway unless 
anything else follows from Norway's obligations under international law.»
(95) The Court of Appeal has assumed that section 7-6 subsection 5 of the Insurance Contracts Act – in 
addition to being a substantive law rule – is a choice of law rule implying that Norwegian law is 
applicable in direct actions in Norway, regardless of where the harmful event occurred.
(96) My first comment to this is that the wording of the provision does not support such a view. The 
provision merely states that direct actions must be brought in Norway, and linguistically, it does 
not regulate the choice of law. In order for the provision, nevertheless, to be seen as a choice of 
law rule, this must be rooted in other sources of law.
(97) The Court of Appeal has based its view on statements in preparatory works and on purpose 
considerations. According to the preparatory works, the Insurance Contracts Act section 7-6 
subsection 5 was based on the insurance companies' concern that the right to bring direct actions 
could lead to proceedings in countries with different legal traditions relating to actions for 
damages and the level of compensation. The committee drafting the Insurance Contracts Act 
found that this could be avoided to a certain extent by establishing by law that the extended right 
to direct action was made conditional on the action being brought in Norway, and the Ministry 
concurred, see Norwegian Official Report 1987:24 page 149 and Proposition to the Odelsting no. 
49 (1988–1989) page 83.
(98) The statements may support the view that the provision is based on the legislative intent that 
Norwegian law apply in all direct actions brought in Norway, regardless of where the harmful 
event occurred. However, I cannot see that these «clearly» require such a solution, as assumed by 
the Court of Appeal.
(99) In this connection, I mention that the Insurance Contracts Act Committee also stated that 
regulating choice of law in nonlife insurance matters would go beyond what it considered 
necessary, see Norwegian Official Report 1987: 24 page 37. This suggests that the non-regulation 
of choice of law issues was a conscious choice. If the intention was that section 7-6 subsection 5 
of the Insurance Contracts Act should contain a choice of law rule, this ought to have been pointed 
out.
(100) Furthermore, I refer to the preparatory works to the Act on the choice of law in insurance, see 
Proposition to the Odelsting no. 72 (1991–1992) paragraph 5.2 «More on the current Norwegian 
rules» page 19, reading:
«If the contractual relationship is internationally connected, e.g. by the policyholder, the 
insured or the insured object or undertaking being located abroad, there are currently no 
positive provisions regulating the choice of law issue. This applies both when the 
insurance company is Norwegian and when it is a foreign company with a branch in 
Norway that functions as the insurer.»
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Side 12(101) Hence, the Ministry found that we do not have any explicit legal provisions regulating choice of 
law. This, too, indicates that the Insurance Contracts Act section 7-6 is not a choice of law rule.
(102) Against this background, I find that the Court of Appeal erred in its interpretation of the law when 
concluding that the Insurance Contracts Act section 7-6 subsection 5 contains a choice of law rule. 
As I see it, the provision alone does not solve the choice of law issue. However, the intent of the 
legislature may nevertheless be relevant in the choice of law issue, to which I will revert shortly.
(103) In my view, the Supreme Court is not competent in the case at hand to assess whether the Court of 
Appeal's result can be upheld on a different basis. Here, I refer to Supreme Court ruling Rt-2005-
1476 paragraph 14, where the Supreme Court's Appeal Selection Committee explains this 
limitation in further detail:
«The interpretation of the law also comprises determining which considerations are 
relevant when the interpretation entails an assessment based on discretionary criteria, and 
deciding whether the Court of Appeal has made a sufficiently broad assessment. The 
Committee refers to Schei, Tvisteloven [the Dispute Act], 2nd edition page 1085 and to 
Skoghøy, Tvisteløsning [Dispute resolution] page 965. The application of the law to the 
specific facts cannot be reviewed.»
(104) The specific balancing of the various considerations – the very result of the discretion – is thus not 
to be reviewed by the Supreme Court. In the case at hand, the Court of Appeal has decided the 
choice of law issue on the wrong legal basis. When the application of the law to the specific facts 
cannot be reviewed, it follows that the Supreme Court cannot assess whether the Court of Appeal's 
result could have been upheld on different grounds, see Skoghøy, Tvisteløsning [Dispute 
resolution], 3rd edition, page 1265 with reference to Supreme Court ruling Rt-1985-1036. The 
Supreme Court can only review whether the legal basis applied by the Court of Appeal is correctly 
interpreted.
(105) Against this background, the order of the Court of Appeal must be set aside. In its new trial, the 
Court of Appeal must assess whether the choice of law follows from a different, firmer rule, or if 
one must fall back on an overall assessment in accordance with the Irma Mignon formula, see 
Supreme Court ruling HR-2016-1251-A Eimship paragraph 27. In both cases, the legislative intent 
of section 7-6 subsection 5 of the Insurance Contracts Act is crucial.
(106) It is thus not for the Supreme Court in the context of the present case to assess how the condition 
in Article 11(2) of the Lugano Convention «permitting» direct actions is to be interpreted when 
Norwegian law is chosen.
(107) The right to include the Stolt companies in the case depends on whether legal action against Gard 
can be brought in Norway. As I have concluded that the order in the case between Gard and the 
Thorco companies must be set aside, the same must apply to the Court of Appeal's order in the 
appeal case between the Stolt companies and the Thorco companies.
(108) The appellants have claimed costs in all instances. Taking into account that they have demanded 
that the action be dismissed for lack of jurisdiction, and not set aside, my conclusion is that neither 
of the parties have succeeded in full or to a significant degree, see section 20-2 of the Dispute Act. 
In my view, there is also no basis for awarding costs under section 20-3 or section 20-4. Following 
an overall assessment, I conclude that costs should not be awarded in any instance.
(109) I vote for this
ORDER:
In case no. 2017/1119:
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HR-2018-869-A
Side 131.The order of the Court of Appeal is set aside.
2.Costs are not awarded.
In case no. 2017/1124:
1.The order of the Court of Appeal is set aside.
2.Costs are not awarded.
(110) Justice Bull: As opposed to Justice Normann, I believe it is clear from section 7-6 subsection 5 of 
the Insurance Contracts Act that a direct action brought in Norway by an injured party against a 
P&I insurer is governed by Norwegian law. Whether or not one finds that section 7-6 subsection 
5, stating that a direct action under section 7-6 must be brought in Norway, is also a choice of law 
rule, or that such a choice of law rule derives from the legislative intent, is a matter of taste in my 
view.
(111) As pointed out by Justice Normann, section 7-6 subsection 5 was added due to the insurance 
companies' concern that the right to bring direct actions could lead to proceedings in countries 
with different legal traditions relating to actions for damages and the level of compensation. The 
intent was to avoid such proceedings by making a direct action conditional on being brought in 
Norway.
(112) The level of compensation is however determined by the legal system governing the claim. The 
intent of section 7-6 subsection 5 is thus only achieved to a limited extent through a jurisdiction 
rule – and hardly at all if the direct claim, in a choice of law context, is regarded as a tort claim. 
That would entail that the choice of law, also before Norwegian courts, is established according to 
the principle of application of the law of the country where the harmful event occurred. And there 
would be very limited scope for applying the ordre public exception under these circumstances.
(113) From this, I believe one may derive a legislative intent that direct actions against a P&I insurer in 
Norwegian courts are governed by Norwegian law.
(114) Justice Normann has pointed out that the legislature desisted from including choice of law rules in 
the Insurance Contracts Act, without this being a weighty counter-argument in my view. The 
statements in the relevant preparatory works concern general and statutory choice of law rules. 
They cannot prevent single provisions on direct claims from being considered to require a specific 
solution to the choice of law issue for such claims.
(115) Thus far, on a practical level, I follow the Court of Appeal's interpretation of the law.
(116) In «Rule 90», Gard has a clause in its terms of contract stating that even if the agreement is 
governed by Norwegian law, the Insurance Contracts Act does not apply. «Rule 87» contains a 
«pay to be paid clause», which excludes direct claims. However, under section 1-3 subsection 2 of 
the Insurance Contracts Act, one cannot «contract out of» section 7-8 subsection 2 stating that 
direct claims in any case may be brought against the insurer when the insured is insolvent. When 
applying the requirement in Article 11(2) of the Lugano Convention that «such direct actions are 
permitted», the question becomes whether the court must verify if the insured is insolvent before it 
decides whether it has jurisdiction.
(117) The Court of Appeal found that since in Norwegian law, this is a substantive condition for the 
claim to succeed and not a condition for allowing the action, the same must apply when Article 
11(2) is to be applied by Norwegian courts. Here, my view differs. I read this to mean that even if 
the conditions for direct claims in the applicable legal system, in isolation, must be understood as 
substantive conditions, they are under Article 11(2) to be understood as conditions for allowing 
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Side 14the action. Why then «stop halfway» and omit to consider also the insolvency condition as a 
condition for proceedings?
(118) I find, nonetheless, that the appeals must be dismissed, as my view on the consequences of this 
condition not being met differs from that of Justice Normann. I agree with the Court of Appeal 
that Norwegian courts' jurisdiction in this case follows from Article 2 of the Lugano Convention.
(119) It is true that Chapter II Section 3 of the Lugano Convention on jurisdiction in insurance matters is 
self-contained. As pointed out by Justice Normann, this has been established in a number of 
rulings by the ECJ and by legal theory.
(120) But these rules cannot be more self-contained than what they provide for themselves. When 
Article 11(2) states that «Articles 8, 9 and 10 shall apply to actions brought by the injured party 
directly against the insurer, where such direct actions are permitted», it is, in my view, natural to 
take the provision at its word: If such direct actions are not permitted, Article 8 does not apply 
either, which is in fact the provision stating that the provisions in Section 3 – with a couple of 
exceptions – are exhaustive in insurance matters. The argument that such direct claims concern 
insurance matters within the meaning of the Convention can thus not lead to a different result. I do 
not see this as a restrictive interpretation of the provision.
(121) As far as I can see, this particular issue has not previously been dealt with in case law or in legal 
theory. The issue is generally irrelevant because the Convention's Chapter II Section 3 itself 
contains a rule that the insurer can always be sued in the courts of the state of the insurer's 
domicile. This has made it possible to formulate Article 8 in so absolute terms. Yet, the wording in 
Article 11(2) makes it possible to disregard Article 8 in a case like the one we are dealing with.
(122) The practical consequence of this is that Gard can be sued in the courts of the state of its domicile 
in accordance with the Convention's basic rule in Article 2 – as the company was, and as the 
Convention forces everyone else to accept. But the company could not have been sued in courts of 
the claimant's domicile. Such a right can only be derived from the separate provisions on 
insurance matters in Chapter II Section 3, more specifically Article 9(1)(b).
(123) Whether a foreign P&I insurer, in accordance with Article 5(3), could also have been sued in 
Norway if the harmful event had occurred here is a question that does not need to be answered in 
the context of this case. This would in any case presuppose that such a direct action would have 
had to be regarded as covered by «matters relating to tort».
(124) In my view, the reservation «[s]ubject to the provisions of this Convention» in Article 2 cannot 
give any other result as long as Article 11(2) reads as it does with respect to the application of 
Article 8.
(125) It may seem inexpedient to permit proceedings in the domicile state under Article 2 when the 
condition in Article 11(2) – as I interpret it – for falling outside the special jurisdiction rules in 
insurance matters, is that direct actions are not permitted: Why permit an action that will not 
succeed? However, it is not a condition under the Lugano Convention that also other requirements 
for instituting proceedings must be met. Under Norwegian law, one must also assume that the 
insolvency condition in section 7-8 subsection 2, cf. section 1-3 subsection 2 of the Insurance 
Contracts Act is not a condition for proceedings at all, but a substantive condition for the claim to 
succeed. If one disregards the very particular provision in Article 11(2), which here in a way 
«transforms» a substantive requirement of insolvency for the insured to a condition for 
proceedings, it is not consistent with the system of the Lugano Convention to let the prospects of 
success dictate whether jurisdiction exists.
(126) As emphasised by the Court of Appeal, it is also inexpedient to consider such an insolvency 
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Side 15requirement when the court early on is to establish whether it has jurisdiction. The same may 
apply to any other conditions for direct action under other countries' law. The consequence of my 
reading of Article 11(2) is that if the action is brought in the domicile state of the P&I insurer, it is 
unnecessary to consider specifically the conditions for direct action as part of the review of the 
court's jurisdiction.
(127) As I see it, purpose considerations also suggest that Article 2 applies in a case like the one at hand. 
The special jurisdiction rules in insurance matters are not there to protect the insurers, but their 
counterparties. The intent of these rules can thus not have been that an insurer cannot even be sued 
in the courts of its domicile, as everyone else must accept. The ECJ's judgment 13 December 2007 
in Case C-463/06 Odenbreit, concerning a slightly different issue relating to the interpretation of 
Article 11(2), demonstrates in my view that the Court takes the provision for its word – the way I 
believe I do in my interpretation of the reference to Article 8 in Article 11(2) – when this is in 
accordance with the protective intent of the provisions.
(128) My conclusion is that Gard under any circumstance can be sued in the courts of the state of its 
domicile under Article 2. With such a standpoint, it is necessary to consider whether the Lugano 
Convention permits the inclusion of the Stolt companies in the proceedings at Gard's domicile in 
Arendal, as concluded by the Court of Appeal.
(129) When assuming that the action against Gard has its legal basis in Article 2, this question may be 
answered based on Article 6(1) on the right of joining several defendants in the proceedings when 
the action is brought in the courts for the place where any of them is domiciled. However, the 
claims must be so closely connected that it is desirable to hear them jointly to avoid the risk of 
irreconcilable judgments resulting from separate proceedings. The Court of Appeal has concluded 
that this condition is met.
(130) The Stolt companies contend that the action against Gard has been brought in Norway primarily to 
make it possible to sue the Stolt companies here. In this regard, I refer to the ECJ's judgment 11 
October 2007 in Case C-98/06 Freeport, establishing in paragraphs 51-54 that as long as the 
claims are so closely connected that it is expedient to hear and determine them together to avoid 
irreconcilable judgments, there cannot be yet another requirement that the co-defendants must not 
have been joined in the case only to prevent that their cases are decided by a different court. 
Secondly, it follows from Case C-103/05 Reisch, the ECJ's judgment 13 July 2006, that a co-
defendant may be introduced to the case in accordance with Article 6(1) even if the action against 
the defendant being sued at his domicile court has already been dismissed. Hence, Article 6(1) is 
applicable even if the action against Gard has been brought primarily to make it possible also to 
sue the Stolt companies in Norway.
(131) Against this background, it is not necessary for me to consider whether it would have been 
possible to include the Stolt companies in the action against Gard if the action against Gard had 
had a legal basis in Article 11(2). But with my view on the application of Article 2 and Article 
6(1) in this case, it would be a paradox if the Stolt companies could not also have been included if 
the action against Gard were permitted under Article 11(2). I will therefore say a few words in that 
regard.
(132) First of all, the need to avoid irreconcilable judgments is of course the same.
(133) The right to introduce other defendants would then seem to depend on Article 11(3), which states 
that «[i]f the law governing such direct actions provides that the policyholder or the insured may 
be joined as a party to the action, the same court shall have jurisdiction over them». At the outset, 
the purpose of this provision is probably to enable the insurer to include the policyholder or the 
insured. It is possible that the German version, using the term «Streitverkündung», is limited to 
this possibility. If so, the consequence must be that Article 11(3) cannot prevent the alleged 
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Side 16injuring party from being included under Article 6(1) when the action – like here – is brought 
against the insurer in the courts of the insurer's domicile. The claim against the alleged injuring 
party is not an insurance claim, but a regular tort claim. There is no reason why Section 3 on 
insurance matters should have a limiting effect on such actions.
(134) The wording in the Norwegian version and – as far as I can see – also in the English, French, 
Danish and Swedish versions seems more open in terms of reading Article 11(3) also to permit the 
injured party to include the alleged injuring parties in the case against the insurer.
(135) Apart from that, I cannot see that Norwegian law regulating direct actions – which under the 
circumstances must be the provisions in the Insurance Contracts Act – should prevent this. They 
do not regulate this issue.
(136) There are a couple of English rulings reflecting such an interpretation of Article 11(3). These are 
[2009] EWCA Civ 1191 Maher, ruling 12 November 2009, and [2015] EWCA Civ 598 Keefe, 
ruling 17 June 2015, both given by England and Wales Court of Appeal. The latter is currently 
pending before the UK Supreme Court, which has submitted several questions to the ECJ. The 
questions seem to be based on the premise that Article 11(3) in principle allows an injured party to 
include the alleged injuring party – they only ask on which terms.
(137) If Article 11(3) is to be read in this manner, it becomes possible to include alleged injuring parties 
in the case against the insurer also when the action has not been brought in the courts of the 
insurer's domicile. That was the situation in the two English cases. It is not obvious that this 
should be possible, as the right to introduce the injuring party would then extend beyond Article 
6(1). However, if it is not possible, the result of that must be that one falls back on reading Article 
11(3) as a provision on the insurer's right to introduce the policyholder and the insured in the 
proceedings, with the consequence that the provision – and Section 3 – do not at all regulate the 
injured party's right to introduce the injuring party.
(138) In other words, I cannot see that Article 11(3) – to the extent Article 11(2) gives the injured party 
a right to bring a direct action against the insurer – constitutes an argument against my 
interpretation of Article 11(2).
(139) Against this background, I vote for a dismissal of the appeals.
(140) Acting Justice Sverdrup: I agree with the justice delivering the leading opinion, Justice Normann, 
in all material aspects and with her conclusion.
(141) Justice Bergsjø: Likewise.
(142) Justice Tønder: I agree with Justice Normann that the question of Norwegian jurisdiction is 
exclusively governed by Article 11(2) of the Lugano Convention. With respect to the choice of 
law issue, I agree with Justice Bull. I have, too, concluded that the Court of Appeal's order must be 
set aside, as I – on the same grounds as Justice Bull – find that the Court of Appeal must consider 
whether the insolvency requirement in section 7-8 subsection 2 of the Insurance Contracts Act has 
been met.
(143) Following the voting, the Supreme Court gave this
ORDER:
In case no. 2017/1119:
1.The order of the Court of Appeal is set aside.
2.Costs are not awarded.
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HR-2018-869-A
Side 17In case no. 2017/1124:
1.The order of the Court of Appeal is set aside.
2.Costs are not awarded.