Collision Convention

The clause was upheld according to its strict terms in The Jason (1911) but it was only partly effective because the U.S. Courts adopted the construction that the exercise of due diligence was a condition precedent to the owners’ right to recover the cargo contribution independent of causative effect. This resulted in the introduction of the New Jason Clause which is a contractual adoption of the English law position, so that only the shipowners actionable fault causing the loss will defeat his claim in general average. A both to blame collision clause is designed to deal with a rule of U.S. law. The U.S. is not a party to the 1910 Collision Convention unlike the UK which originally gave effect to it in the Maritime Conventions Act, 1911. An American shipowner whose ship is involved in a collision can attach in an American port any ship in the same ownership as the one with which he has collided, even if the collision occurred in some distant part of the world. By the law of the U.S. where cargo is lost or damaged in a ship for which both ships are to blame, the cargo-owners may recover in full against the non-carrying ship. The non-carrying ship will then claim an indemnity from the carrying ship with the result that the carrying ship ends up indirectly paying for cargo’s collision loss, yet it would have been exempted for this under the Hague or Hague-Visby Rules. The Both to Blame Collision Clause allows the carrier to claim an indemnity from the cargo-owner for the appropriate sum paid to the non-carrying ship. However, it should be noted that the legality of the clause was tested in the United States in United States of America v Atlantic Mutual Insurance Co. (1952) where a bill of lading contained the clause. The Supreme Court decided that the clause was invalid as being a violation of the rule which in general forbids carriers from stipulating against the negligence of themselves or their employees.