Maritime Collision

Most maritime torts arise because of ship collisions. Basic rules governing ship collisions are well established. Even tough modern ships are equipped with advanced technology, ships still collide with each other or fixed objects. Ship collisions cause millions of dollars in direct property damage. Ship collisions cause losses due to delays, personal injuries, and death.

In maritime law, ship collision occurs when two floating objects come in contact unintentionally. When ships come into contact on purpose, for example a tug boat contacts a larger ship to provide assistance, that would not be a collision.

In maritime law, allision is when a collision occurs between a floating object and a fixed object. For example, a ship strikes into a villa during Bosporus Strait passage. Allision is a more precise term and includes a few unique presumptions. Maritime law governing allisions is the same as the law governing collisions. Except unique presumptions of allision, in broader term collision include allision.

In ship collisions, in order to determine faulty party, court or the jury analyze all of the facts and evidence and determine whose negligence or failure to follow the maritime navigation rules are to blame for the collision. If two ships involved in maritime collision, then both ships will be at least partly at fault and each ship will being assigned a percentage of the total fault. In many cases, court is concerned with proximate fault or proximate cause rather than culpability. Courts search for how much one ship’s fault is responsible for actually causing the collision and not how wrongful one ship’s actions were or negligence was. One ship may be at fault, that does not mean that its fault is proximate cause of the collision. If the fault does not actually or directly cause the accident, then the fault is not proximate and does not lead to liability.

Particularly, maritime law recognizes the doctrine of superseding cause (displace in favor of another). A situation where damage is resulting from the fault of one party is superseded by the subsequent, independent negligence of another party. Doctrine of superseding cause is a showing that damage from the original act of negligence has been superseded by the independent negligence of another.

Maritime Navigation Rules:

Since ancient times, certain rules for the prevention of ship collisions have been recognized. International law governing the navigation of ships to avoid collisions is the Convention on the International Regulations for Preventing Collisions at Sea 1972 and later amended significantly in 1983.  Now, International Regulations for Preventing Collisions at Sea is called COLREGS. COLREGS have been adopted by virtually all maritime nations. In the United States, rules of the road were originally written as:

  • Navigation Rules for Inland Waters – Inland Rules
  • Western Rivers – Western Rivers Rules
  • Great Lakes – Great Lakes Rules

After the COLREGS were developed, United States rules were updated and unified through the Navigational Rules Act 1980. Later on, United States updated in response to COLREGS amendments of 1983. In the United States, navigation rules are called NAVRULES. NAVRULES are in many cases identical to the International Rules. COLREGS and NAVRULES have an identical structure, but may certain differences remain. COLREGS and NAVRULES have an identical structure and both address:

  • general matters like definitions and applicability
  • conduct of ships generally
  • conduct of ships in sight of each other
  • conduct of ships in restricted visibility
  • lights and shapes
  • sound and light signals
  • exemptions
  • technical details

COLREGS and NAVRULES set out the rules of the road for ships. COLREGS and NAVRULES provide the standard for evaluating conduct of ships and are principle basis for evaluating fault in a collision. When a ship violates one of COLREGS and NAVRULES, that ship will be presumed to be at fault, unless the ship can show that the fault could not have caused the collision under a presumption called the Pennsylvania Rule. Pennsylvania Rule comes from a case called “The Pennsylvania” in which the United States Supreme Court held that:  “When a ship at the time of collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case, the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.”

In maritime collisions, in addition to the Pennsylvania Rule, courts also use a few other presumptions in collision cases:

  • presumption of fault on the part of a ship underway under its own power involved in a collision with a fixed object or ship moored or anchored (Oregon Rule)
  • presumption of fault on the part of a drifting ship in a collision with a fixed object (Louisiana Rule)
  • presumption that a material witness in the control of a party but not called would be adverse to that party
  • presumption that log books not produced would be adverse to the party that fails to produce them
  • presumption of regularity in log books
  • presumption that unexplained erasures contain unfavorable information
  • presumption that given equally credible evidence, the positive testimony outweighs the negative

In some collision cases, a ship, ship owner or shipyard can also be at fault for ship collision despite the best efforts of the crew. For example, when collision is found to have occurred because unseaworthy ship.

Primary defense to faulty ship in a collision is proving that the persons operating a ship operated it as reasonably prudent mariners and exercised due care. Furthermore, ship was fit for the voyage and crew members navigated the ship in accordance with the COLREGS and NAVRULES. Practically, in maritime collision cases, COLREGS and NAVRULES will show that crew members did not act promptly or carefully enough in accordance with the rules.

In some maritime collision cases, both ships and crew members appear to have operated their seaworthy ships appropriately, but a collision came about anyway. A maritime ship collision may come about through forces beyond the reasonable control of crew members like Act of God or Inevitable Accident:

  • Heavy weather and unable to maneuver, or see over large seas
  • Crest a wave and be unable to avoid each other
  • Ships becalmed and adrift may be carried by currents into other ships or fixed objects

In some maritime collision cases, court is unable to determine which ship is at fault and court may declare ship collision to be due to inscrutable fault (difficult or impossible to comprehend). However, as navigation and communication equipment has improved significantly, such mysterious ship collisions have become less frequent.

Another maritime ship collision defense is the “Error Inextremis Doctrine”. If a ship is in extremis, ship and crew members are in a very difficult situation and have to use extreme methods. When a ship is said to be “inextremis”, it means that ship is in the last moments of peril and must act immediately and correctly to avoid collision or other disaster. “Error Inextremis Doctrine” is that a ship A is put in extreme peril by ship B’s misconduct. However, at that moment of extreme peril, ship A does something wrong so as to contribute to accident that ship B brought about. Ship A will not be held liable, because perfect presence of mind, accurate judgment and promptitude under all circumstances are not to be expected. Key point of “Error Inextremis Doctrine” is that the ship A has been put in extremis by the wrongful conduct of ship B. A mistake at that moment of peril, will not result in a finding of fault against ship A or ship A’s operator.

In ship collision cases, liability for a collision is based on the determination of fault for the collision. When court assigns ship collision parties their respective percentages of fault, liability for the damages is apportioned based on that percentage. So, when plaintiff sues defendant and plaintiff is found partially at fault. Then, plaintiff’s recovery is reduced by the amount of fault assigned to the plaintiff.

In United States, unlike some state law which require a plaintiff to be less culpable than the defendant or at least less than 50% at fault, maritime law does not bar a plaintiff from recovering damages, so long as the defendant is at least partially at fault. Effect of plaintiff’s fault is only to reduce the recovery to which the plaintiff is entitled.

In maritime case when multiple defendants are involved, maritime law also applies an allocation called joint (collective) and several (individual) liability. Under joint (collective) and several (individual) liability approach, all of the defendants responsible for the harm are jointly (collectively), as well as severally (individually), liable for the total damages payable to the plaintiff. For example, imagine maritime case where the plaintiff (Ship A) brings a case against two defendants (Ship B and Ship C). Plaintiff (Ship A) claims a total of $1,000,000 in damages. Maritime court finds that Ship A was 10% at fault, Ship B was 80% at fault, and Ship C was 10% at fault. Defendants (Ship B and Ship C) are jointly (collectively) and severally (individually) liable, in addition to being liable for the damages attributable to their own percentage of fault, Ship B and Ship C are also jointly liable for the total damages. After reducing by Ship A’s percentage of fault.

Calculation of individual liability would be as follows:

  • Total Damages: $1,000,000
  • Reduction due to Ship A’s fault (10%): $100,000
  • Ship B’s direct liability (80%): $800,000
  • Ship C’s direct liability (10%): $100,000

Ship B and Ship C are also jointly and severally liable, Ship B and Ship C are individually as well as jointly responsible to Ship A for the total damages to which Ship A is entitled. So, if Ship B goes bankrupt, or disappears, or is otherwise unable to pay his portion of the damages, Ship A can proceed against Ship C for the full $900,000. Ship C could then bring an action against Ship B to seek contribution for Ship B’s share of the liability. if Ship C is not able to collect from Ship B, Ship C is simply has to pay the full $900,000.