Under English law, the responsibility for collisions at sea is derived from the tort of negligence. The tort of negligence enforces accountability upon an individual who inflicts harm due to their carelessness. To successfully pursue a claim under the tort of negligence, the plaintiff must be able to establish the presence of the three essential components:
1- Duty of care owed by the defendant to the plaintiff
2- Breach of that duty.
3- Resulting damage.
In The Dundee case, the concept of duty of care was explicated as follows:
“a want of that attention and vigilance which is due to the security of other vessels that are navigating the same seas, and which, if so far neglected as to become, however unintentionally, the cause of damage of any extent to such other vessels, the maritime law considers as a dereliction of bounden duty, entitling the sufferer to reparation in damages”.
To establish liability for a ship collision, it is necessary to demonstrate that negligence on the part of the defendant caused or contributed to the incident. In accordance with the principles of the tort of negligence, the responsibility of proving such negligence lies with the plaintiff. In determining the allocation of fault, the judge is tasked with carefully examining the evidence presented and considering the various perspectives involved:
1- Evaluating culpability and
2- Deducing its causative potency
The Statute of Liberty (1971) Case
In 1965, the MV Andulo was involved in a collision with the MT Statute of Liberty under conditions of good visibility at night, off Cape St. Vincent. MV Andulo argued that it had spotted the masthead and green light of the MT Statute of Liberty bearing 20º on the port bow, at a distance of 5 to 6 miles away. Subsequently, after five minutes, the bearing narrowed down to 10º. When the other ship’s green light was just to the starboard of the foremast and at a distance of around 7 cables length, the MV Andulo altered its course towards Casablanca. In response, the MT Statute of Liberty altered its course towards starboard, following which the MV Andulo made a sharp turn towards the port and then hard-a-port, resulting in an unfortunate collision.
According to the MT Statute of Liberty, it first spotted the MV Andulo on its starboard bow at a 20º bearing, noticing its red and masthead lights. When the distance between the two ships was approximately 3 miles, the MT Statute of Liberty altered its course towards starboard, bringing the MV Andulo on its port bow. However, when the distance between the two ships was about 3/4 mile, the green light of the Andulo suddenly appeared, while the red light disappeared, causing the MT Statute of Liberty to suddenly turn towards starboard. It was because the MV Andulo subsequently swung further toward the port that the collision occurred.
The court of appeal held that while the MV Andulo was at fault for not taking more accurate observations earlier, the such fault had no significant role in causing the collision and should not be taken into account when determining overall blame. The MV Andulo’s causative fault lay in its unjustified assumption that the MT Statute of Liberty would make no further change in its course. The substantial causative fault, on the other hand, was attributable to the MT Statute of Liberty for failing to give way earlier. The Lords upheld the percentage apportionment of fault, which was fixed by the Court of Appeal at 85% for the MT Statute of Liberty and 15% for the MV Andulo.
No Actual Contact is Required in Ship Collisions
While the term ‘collision’ typically denotes physical contact and/or impact between ships, it is important to note that a ship may cause damage to another ship due to its negligence, even without actual contact. The claim is founded on the premise that the defendant ship’s negligence resulted in damage to the plaintiff. Although the damage must not be too remote, the cause of action for negligence does not depend on physical contact between the ships.
The Carnival (1994) Case
The MV Carnival (1994) is an interesting example of the unusual circumstances of a collision situation without actual contact. The MV Danilovgrade was alongside the Setramar berth, north of the port of Ravenna. Before she was securely moored, the MV Carnival proceeded along the canal assisted by two tugs. When the MV Carnival passed the MV Danilovgrade surged and came into contact with the edge of the quay. The shell plating of the MV Danilovgrade pressed against a fender and the edge of the end plate pierced the ship’s shell plating. Water flowed into one of the holds, damaging the cargo. The owners of the MV Danilovgrade claimed damages from the owners of the MV Carnival on the ground that the latter ship was negligently navigated and caused damage. Shipowners also claimed against the voyage charterers on the basis that they had ordered the MV Danilovgrade to an unsafe berth.
The Court of Appeal deemed that the MV Carnival was at fault for its negligence in passing the MV Danilovgrade before it was properly and securely moored with all lines out and fastened. It was discovered that the MV Danilovgrade’s pilot failed to transmit a message on VHF 16 (radio) indicating that the ship was securely alongside and moored, and had not given consent for the MV Carnival to pass. Moreover, the Court of Appeal found that the berth was hazardous due to the design of the fender. The Court of Appeal concluded that the owners of the MV Carnival were significantly more culpable than the voyage charterers of the MV Danilovgrade. It is improbable that the MV Danilovgrade would have endured such harm if the MV Carnival had not passed prematurely. Nevertheless, the owners of the MV Carnival are entitled to recover one-third of the overall damages paid to the owners of the MV Danilovgrade from the voyage charterers of the MV Danilovgrade. The defendant’s assertion that the damage was too remote was dismissed. The Court of Appeal decided that the genuine criterion was whether it was foreseeable that, as a result of negligence on the part of the MV Carnival, the MV Danilovgrade would incur damages. It was unnecessary to specify foreseeability by referring to the actual damage suffered.
An argument that has consistently served as a valid defense in cases of negligence or contributory negligence is the assertion that the alleged negligent act was committed solely in the “agony of the moment.” This claim can override the general expectation that a seaman exercise due care and skill when confronted with a hazardous situation. For this defense to be successful, it must be demonstrated that the Master had no time to contemplate the imminent danger or devise a calculated alternative course of action to evade the critical situation. In other words, the defense of “agony of the moment” implies that the defendant did not act unreasonably given the specific circumstances of the situation.
The Regina D (1992) Case
In the case of The Regina D (1992), a collision occurred between the plaintiffs’ ship and the defendants’ ship, MV Regina D, in the River Scheldt during dense fog. Both ships were being navigated by licensed River Scheldt pilots. It was undisputed that at the moment of collision, MV Regina D was on the correct side of the channel while covering the preceding mile. However, the plaintiffs’ ship crossed onto the wrong side of the mid-channel approximately one minute before the collision and collided on the green side of the mid-channel. The plaintiffs acknowledged that their ship was traveling at excessive speed. The issues to be determined were whether MV Regina D was also at fault and how responsibility for the collision should be apportioned.
The Court of Appeal concluded that there was no reason to question the Admiralty Judge’s finding that the pilot of MV Regina D was not negligent. The Judge’s determination that the plaintiff’s ship was solely responsible for the collision was accurate. The pilot of MV Regina D had no advance warning that would have allowed him to take emergency action without causing damage to his own ship. Such action would not have been taken by any prudent navigator until it was absolutely necessary. Furthermore, there was no evidence of a decision made by the pilot of MV Regina D that was entirely unwarranted.
Ship Collision Regulations
A set of rules called the Collision Regulations has been created to prevent collisions at sea. The first regulations, known as the 1960 Collision Regulations, were later revised and updated based on the recommendations of the International Maritime Organization (IMO) to reflect technological advancements and the increased use of specialized vessels like hovercraft and hydrofoils.
Under International Law, any nation that is a party to an International Convention is required to incorporate its terms into its own legal system. However, this incorporation does not happen automatically, and the United Kingdom Parliament did not incorporate the Collision Regulations until 1977. The Regulations were initially adopted and given the force of law in the United Kingdom by the Collision Regulations and Distress Signals Order 1977 (SI982). Since then, the Regulations have applied to British ships navigating “on the high seas and all waters connected therewith navigable by seagoing vessels.”
The 1972 Collision Regulations were incorporated into English law through the 1977 Order under SI982. They were later amended by Resolution A464 (xi) of the International Maritime Organization (IMO). However, the 1977 Order was revoked in 1983, and the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1983 were introduced. These new regulations were made effective from 1st June 1983 through Statutory Instrument 708 of 1983 (SI708).
The primary objective of the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1983 was to implement the amendments made to the 1972 Collision Regulations. According to these new regulations, all vessels in United Kingdom waters, as well as United Kingdom vessels regardless of their location, must comply with the International Regulations as amended.
If one of the Collision Regulations is violated, it may constitute a breach of the duty of care imposed by the tort of negligence. The Collision Regulations primarily focus on navigational matters such as sailing, steering, maintaining a proper lookout, controlling speed, assessing collision risks, navigating in areas with heavy traffic, dealing with head-on situations, and displaying lights and shapes, among other things.
The Collision Regulations are crucial in practice as they aid the court in determining negligence and assigning blame for a collision. If it can be proven that one party violated the Regulations, it would create a case of negligence on the face of it (prima facie). The defendant may refute this evidence by presenting evidence to demonstrate that they were not negligent.
The Collision Regulations establish standards for care, skill, responsibility, and navigation that a vessel must adhere to. However, it is essential to note that Rule 2, paragraph (b) of the regulations recognizes that it is impossible to anticipate and address every possible situation that may arise at sea. Therefore, in order to avoid immediate danger, deviating from strict compliance with the Regulations is permitted. The Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1983 were amended in 1991 to incorporate IMO Resolution A678 (16). The current regulations governing collisions that apply to ships registered in the United Kingdom. are the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996. Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 regulations were repealed and replaced by the 1991 Collision Regulations.
It is worth noting that a violation of the Collision Regulations is not only critical in assigning responsibility for a collision but may also result in criminal liability.
According to Section 85 of the Merchant Shipping Act 1995, the Secretary of State has the authority to create safety regulations that he deems suitable. Such regulations may include any provisions that he deems necessary.
What is The COLREGS?
The COLREGS, or the International Regulations for Preventing Collisions at Sea, were established to govern the conduct of ships at sea and prevent accidents. Before this standard set of international rules was created, different maritime nations had their own conventions and unofficial practices, leading to inconsistencies and contradictions.
This convention was established by the International Maritime Organization on October 20, 1972, with the aim of updating and replacing the 1960 Collision Regulations. Since its adoption, the regulations have undergone several amendments.
It is required that each signatory country adopt the provisions contained in the COLREGS and domesticate them in local legislation. Additionally, every IMO member state must appoint an “administration” to administer the rules of the COLREG convention as they pertain to ships flying their flag. Of particular concern is Rule 6, which deals with ensuring a ship’s safe speed.
COLREGS Part B – Steering and Sailing Rules – Section I
RULE 5: Look-out
“Every vessel shall at all times maintain a proper look-out by sight as well by hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”
“The duty of ‘not neglecting to maintain a proper lookout’ is augmented to encompass the responsibility of utilizing one’s sense of sight and hearing, as well as all feasible means that are suitable in the current circumstances and conditions, in order to conduct a comprehensive evaluation of the situation and the potential peril of collision.”
The General VII (1990) Case
In 1990, a collision transpired between the Rora Head vessel and the motor tug, General VII, while sailing on the River Thames. The primary reason behind the unfortunate incident was the inability of both ships to maintain a proper lookout as per Rule 5. Moreover, General VII was also at fault for approaching the fairway in a manner that hindered the path of Rora Head. It was the navigation strategy of General VII that led to the problematic situation, and thus, it must accept the larger share of the responsibility for the collision. In particular, General VII was found to be 60 percent at fault, whereas Rora Head was 40 percent culpable.
RULE 6: Safe Speed
“Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions. In determining a safe speed the following factors shall be among those taken into account.”
Rule 6 introduces the concept of “safe speed” instead of “moderate speed”. COLREGS Rule 6 is related to the safe speed of a vessel. It states that every vessel must navigate at a safe speed that allows it to have proper control and stop within a suitable distance. The speed should be adjusted taking into account the traffic density, visibility, the vessel’s maneuverability, and other relevant circumstances. Furthermore, when navigating in restricted visibility, the speed should be reduced to such an extent that the vessel can avoid a collision and stop within a distance appropriate to the prevailing circumstances and conditions.
The San Nicolas and Fraternity L (1994) Case
In the case of The San Nicolas and Fraternity L (1994), it was determined that the sole reason for the collision was Fraternity L’s change of direction to port. The vessel was traveling at an unsafe speed, which rendered it incapable of managing its course.
RULE 7: Risk of Collision
Rule 7 is a relatively new addition and emphasizes the crucial significance of assessing the “risk of collision”. COLREGS Rule 7 pertains to the obligation of vessels to determine the risk of collision. It emphasizes the significance of keeping a proper lookout by sight and hearing, as well as using all available means appropriate in the prevailing circumstances and conditions, to make a full assessment of the situation and the risk of collision. The rule also mandates that the actions taken by the vessel to avoid collision should be both timely and positive.
RULE 8: Action to Avoid Collision
The effectiveness of Rule 8, which calls for actions to avoid collisions, has been reinforced by replacing the term “should” with “shall” to delineate the obligation of taking proactive measures. COLREGS Rule 8 describes the actions that should be taken to avoid a collision. The rule stipulates that any vessel that is deemed to be in a risk of collision must alter its course to avoid such a collision as soon as it becomes apparent. Furthermore, the actions taken by the vessel to avoid the collision should be positive, timely, and of such a nature that the other vessel can easily understand the intentions of the vessel. Finally, vessels that are obligated to keep out of the way must maintain their course and speed unless it becomes evident that the vessel is in danger of collision.
RULE 9: Narrow Channels
COLREGS Rule 9 pertains to the “narrow channels and fairways” and requires vessels to maintain a steady course while navigating such passages to avoid impeding other ships. Furthermore, vessels must maintain a safe speed to ensure a proper lookout and be prepared to yield the right of way to larger vessels that are constrained by their draught.
RULE 10: Traffic Separation Schemes
Rule 10 is established on the basis of the traffic separation schemes that have emerged in modern times. These schemes are currently defined and revised through IMO Resolutions and listed in Notice to Mariners No. 17. Moreover, the Department of Transport has issued an ‘M’ Notice outlining the protocols for observing traffic separation schemes.
COLREGS Part C
Part C of the Regulations deals with lights and shapes and now applies in all weather conditions. Part C of the COLREGS consists of Rules 19 to 31, which are specifically formulated for conduct of vessels in restricted visibility. These rules outline the steps and precautions that must be taken by vessels when they are navigating in reduced visibility such as fog, heavy rain, or snow. The regulations prescribe specific actions that should be taken by vessels to avoid collisions, such as sounding appropriate sound signals, reducing speed, and maintaining a lookout. Part C also defines key terms related to restricted visibility and provides detailed guidance on how vessels should operate in such conditions.
COLREGS Part D
Part D of the Regulations deals with sounds. Part D of the COLREGS comprises of Rules 32 to 38, which define the light and sound signals that vessels must use in various situations. These rules set forth the specific lights, shapes, and sound signals that must be displayed by different types of vessels, such as power-driven vessels, sailing vessels, fishing vessels, and vessels engaged in towing or pushing. The purpose of these signals is to enable vessels to communicate with each other and convey their position, direction, and status to avoid collisions. Part D also defines the key terms used for light and sound signals and guides how to interpret and apply these signals in practice.
According to the Merchant Shipping Act 1992 (Section 92), the Shipmaster of any United Kingdom or foreign ship that is within the United Kingdom is obligated to provide assistance, where possible, to another ship involved in a collision. The master must also furnish the other ship with details of his own ship and the intended route of the voyage. The failure to comply with this requirement does not imply fault for the collision, but it constitutes an offense. Section 93 (RSA 1992) imposes a similar obligation on the master to provide assistance to any ship in distress.
The concept of the remoteness of damage, which refers to the extent of the damages that a defendant is required to pay for, has been taken into consideration in legal cases such as The Wagon Mound (No. 1) (1961). The principle is that damages payable by the defendant should not be too remote from the wrongful act committed. In cases of negligence, the measure of damages is derived from the decision in The Wagon Mound (No. 1) (1961), which specifies that the plaintiff is entitled to claim compensation for all the damages that are reasonably foreseeable as a consequence of the act of negligence. Now, it is necessary to analyze these matters concerning the circumstances when:
1- Damages When The Ship is Lost
2- Damages When the Ship is Damaged But Not Lost
1- Damages When The Ship is Lost
It is imperative to recognize that the injured party cannot be placed in a better position than before the collision. For instance, if the ship is entirely lost as a result of the collision, the party cannot expect compensation that would enable them to purchase a new ship. Instead, the appropriate measure of damages in such a “total loss” situation would be the market value of the ship at the time of the incident. However, determining the market value may be challenging, and an alternative method to calculate a fair measure of damages would be to consider the ship’s value to its owner as a “going concern.”
If a vessel does not have a market value, the original cost of the vessel, less proportionate depreciation, becomes the only viable basis to estimate its value. In cases where a ship is lost due to the wrongful act of another party, the vessel may hold a special value to its owners. For instance, in Liesbosch Dredger v SS Edison (1933), the Liesbosch dredger was lost due to the negligence of the vessel Edison, which dragged it from its mooring in Patras harbor into the open sea. At the time of the incident, the Liesbosch was engaged in harbor dredging work under a contract that imposed strict penalties for delays. While the lost dredger could have been replaced by a newly purchased one, the owners were not in a position to do so immediately due to their financial constraints. As a result, they had to hire a replacement at considerable expense. In their claim for damages, the owners included the cost of hiring a replacement. The court held that although the cost of replacement was not recoverable under the measure of damages rule in Re Polemis (1921) since it was a direct consequence of the claimant’s financial instability and not the defendant’s negligence, the owners were still entitled to the value of Liesbosch as a “going concern” and not merely its value as an old dredger.
It is essential to note that the measure of damages and the test for remoteness of damages in tort were formerly based on the principle set out in Re Polemis (1921). This principle held that the plaintiff could claim compensation for all direct losses that were a direct consequence of the defendant’s negligence. In the case of Liesbosch Dredger v SS Edison (1933), it could be argued that the cost of hiring a replacement vessel was a direct result of the damage caused and therefore a recoverable loss. Moreover, the “eggshell skull” doctrine could also be invoked here, which states that the defendant must accept the plaintiff as they are found, even if the plaintiff is particularly vulnerable to injury. However, in practice, it is difficult to convince the court to apply this doctrine to financial losses. This difficulty is also evident in the issue of “pure economic loss”. In a case like Liesbosch, the court may rule that the cost of hiring a replacement vessel was purely economic and not necessarily dependent on the injury caused to the damaged vessel. The determination of how the courts will treat each case is complex, and the issue of pure economic loss is surrounded by a complex judicial authority.
It can be argued that in cases where financial loss does not directly result from physical damage, it may prove challenging to persuade the court to award compensation. Moreover, if the loss primarily pertains to profits rather than tangible assets, it becomes even more arduous to sway the court toward granting restitution.
It is important to note that the Re Polemis rule, which previously governed the test for determining remoteness in cases of negligence, has been overturned and replaced by the principle established in The Wagon Mound (No. 1) case of 1961. This decision, of course, came after the Liesbosch case. As per The Wagon Mound ruling, damages awarded in negligence cases must be reasonably foreseeable. Therefore, the plaintiff may be entitled to compensation for any losses that were reasonably foreseeable as a result of the defendant’s negligent actions, regardless of whether the harm caused was a direct consequence of the negligence.
2- Damages When the Ship is Damaged But Not Lost
The guiding principle for determining damages is “restitutio in integrum,” which means that the injured party should be restored to the same financial state they were in prior to the occurrence of the tort. If repairing the ship results in an increase in its value, the wrongdoer bears the consequences of this outcome. However, the repairs must be done adequately and at a reasonable cost given the circumstances. The wrongdoer does not have the right to choose the location of repair or the repairer. Conversely, the innocent shipowner must act prudently as if they were uninsured or unindemnified in making these choices.
The wrongdoer is also liable for any consequential losses, such as delays resulting from the collision or loss of profits from not being able to use the vessel. However, the loss of profit must not be too speculative or remote. The appropriate measure of damages is the net rate of profit under the immediate charter. It is crucial to note that this profit should not be confused with “pure economic loss.” Loss of profit from being unable to use the vessel is a direct and immediate consequence of the injury and, therefore, is not a “pure economic loss” and is recoverable.
Out-of-pocket expenses such as salvage and towage expenses, the cost of surveys, dock dues, repair costs, adjusting charges, and agency fees are recoverable. Detention expenses may also be recoverable, subject to certain conditions. To determine the damages owed for the detention of the vessel following a collision, the basic rule is that the actual consequential loss must have resulted, and the amount claimed must be reasonably demonstrated.
The 1910 Collision Convention and the Maritime Conventions Act 1911
The Presumption of Fault
If a collision occurs between a moving vessel and a stationary vessel, common law dictates that the moving vessel is presumed to be at fault. This means that the owner of the stationary vessel is not required to prove negligence to succeed in a lawsuit against the owner of the moving vessel. To avoid liability, the defendant must demonstrate that they were not negligent. In other words, the burden of proof shifts from the plaintiff (who usually must establish the three elements of negligence) to the defendant, who must prove a lack of negligence.
The 1910 Collision Convention
The allocation of responsibility in collision cases was addressed in a convention held in Brussels in 1910. The document created and signed by the attending delegates at the convention contained the following words:
“Damages caused whether to vessels or to their cargoes or to effects or other property of the crew, passengers, etc. are borne by the vessels in fault in said proportion without solidarity as regards third persons”.
Numerous European nations ratified the 1910 convention, including the United Kingdom, which enacted the Maritime Conventions Act 1911 in the following year. Section 1 of the Act reads as follows:
“If having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally”.
Essentially, the Maritime Conventions Act 1911 (Section 1) dictates that the court must allocate responsibility in proportion to the degree of fault of each vessel, except in cases where such apportionment is impossible. Before the introduction of the Maritime Conventions Act 1911, under the common maritime law, damages resulting from a collision were divided equally, regardless of any specific percentage of fault attributed to either vessel. This was known as the “equally divided damages” rule. Therefore, the Maritime Conventions Act 1911 (Section 1) represents a significant departure from this previous rule.
Today, only if the evidence is insufficient to clearly apportion specific percentages of blame and damages, should blame and damages be divided equally. In The Linde (1969) case, blame was allocated equally because although both vessels were guilty of three serious faults, there was no clear preponderance of blame when considering the case as a whole.
It is important to note that the Maritime Conventions Act 1911 (Section 1) pertains only to the establishment of the degrees of the fault of the vessels actually at fault. It does not limit the right of an innocent vessel to pursue legal action against either or both negligent vessels, jointly or separately, for the entirety of its loss.
The Maritime Conventions Act 1911 (Section 1) only applies to damage to property and does not extend to personal injury or loss of life. The position of a personal injury or wrongful death claimant differs from a claimant seeking compensation for property damage. In cases where death has resulted, the cause of action for wrongful death would be framed under the provisions of the Fatal Accidents Act 1976 if British jurisdiction is involved.
The Maritime Conventions Act 1911 (Section 2 ) ensures that the defendant is entitled to any right they have to limit their liability and any other defense that may be available to them.
The Maritime Conventions Act 1911 (Section 3 ) permits a defendant shipowner, who has had to pay damages for loss of life or personal injury that exceeds their proportion of fault due to partial fault, to seek contribution from other vessels whose faults contributed to the damage or loss. However, a condition for exercising this right is that the other ships involved must have been directly liable to the innocent claimant in the first instance.
The Maritime Conventions Act 1911 (Section 4(1)) partially eliminates the “presumption of fault” doctrine. It repeals sub-section (4) of Section 419 of the Merchant Shipping Act 1894, which previously stipulated that a ship was automatically deemed at fault in a collision if it had violated any of the Collision Regulations. The Maritime Conventions Act 1911 (Section 1), on the other hand, requires that liability be apportioned based on the degree of fault of each vessel unless such a determination is impossible. This interpretation of Section 1 was affirmed in the case of The Anneliese (1970).
The Peter Benoit (1915) Case
The Peter Benoit (1915) case involved a collision between two ships near the mouth of the River Tees. The trial court determined that both vessels were at fault and apportioned the blame at one-fifth and four-fifths, respectively. However, on appeal, the Court of Appeal found that the evidence was insufficient to determine fault with certainty, and instead divided the blame equally between the two ships.
The decision was based on the principle that establishing different degrees of the fault must be supported by evidence that has been arrived at judicially and is sufficiently demonstrated.
The term “clear preponderance of blame” originates from the language used by the court in The Peter Benoit (1915) case.
The Maritime Conventions Act 1911 (Section 1) has been repealed and replaced by the Merchant Shipping Act 1995 (Section 187) as follows:
1- Where, by the fault of two or more ships, damage or loss is caused to one or more of those ships, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was in fault.
2- If, in any such case, having regard to all the circumstances, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
3- This section applies to persons other than the owners of a ship who are responsible for the fault of the ships, as well as the owners of a ship and where, by virtue of any charter or demise, or for any other reason, the owners are not responsible for the navigation and management of the ship, this section applies to the charterers or other persons for the time being so responsible instead of the owners.
4- Nothing in this section shall operate so as to render any ship liable for any loss or damage to which the fault of the ship has not contributed.
The Merchant Shipping Act 1995 (Section 187) applies only to determine the degree of fault of the vessels actually involved in an incident causing property damage or loss. It does not limit the right of an innocent vessel to sue either or both of the negligent vessels jointly or separately for the entirety of its loss. However, a vessel that did not contribute to the loss in any way is not liable for damages.
The term “freight” under the Merchant Shipping Act 1995 refers to passage money and hire money, while “damages” includes salvage and other expenses resulting directly from the collision. The Merchant Shipping Act 1995 (Section 187) only pertains to property damage and loss and is not applicable to cases of personal injury or loss of life, which are dealt with under The Merchant Shipping Act 1995 (Section 188). In such cases, each claimant is entitled to sue either of the two vessels at fault for their entire loss. The defendant may use any available defenses in addition to their right to limit their liability.
The Merchant Shipping Act 1995 (Section 189) allows a defendant shipowner, whose fault is only partial, to claim contributions from other vessels whose faults also contributed to the loss or damage. However, this can only occur if the other vessels were directly liable to the innocent claimant in the first instance.
The United States Ship Collision Acts
The United States Ship Collision Acts refer to a series of laws enacted by the US government to regulate collisions between vessels. The first of these acts was passed in 1864 and was followed by subsequent legislation, including the Shipowners’ Limitation of Liability Act of 1851 and the Rules of Navigation Act of 1885. These laws established rules for determining fault and apportioning damages in cases of vessel collisions in US waters. The Ship Collision Acts were updated and amended over time to reflect changing circumstances and technologies in the shipping industry.
Unlike many European countries, the United States did not ratify the 1910 Convention, and as a result, it has continued to follow the common law principle that overall damages resulting from a maritime collision should be divided equally between the involved ships, regardless of the specific percentage of fault attributed to each vessel. This has caused a divergence in collision law between the US and the UK since 1911, with the UK developing statutory Admiralty Law and the US adhering to traditional common law principles. This has led to the continuation of the “Both to Blame Collision” Clause.
Both to Blame Collision Clause
With the U.S.A. not having ratified the 1910 Convention, it is necessary to look at the position of the cargo owner whose cargo is lost or damaged when on board a ship that is involved in a collision. The cargo owner has a choice to sue any of the vessels at fault which are involved in the collision for full damages.
If a cargo owner chooses to sue the ship that was carrying their goods, they may be met with a defense of error in navigation or management, which is protected under the Hague-Visby Rules and is typically incorporated into charter party terms. As a result, it is more likely that the cargo owner will choose to sue one of the other involved vessels that were at fault. Since there is no contractual relationship between the cargo owner and the other vessel, the cargo owner would need to sue the shipowner in tort, specifically for the tort of negligence.
Assuming that the cargo owner has successfully sued the non-carrying vessel for full damages for the injury to their cargo, the non-carrying shipowner may then seek a contribution from the carrying owner (i.e., the shipowner who was carrying the cargo). Since US law follows the principle of equally divided damages, regardless of the percentage of fault on each vessel, the contribution would be 50% of the amount that the non-carrying owner had to pay to the cargo owner.
This creates an anomaly where the cargo owner sues the carrying vessel owner for breach of contract regarding the goods being carried. In this case, the carrying owner can defend themselves with any exclusion or limitation provisions, even if they were 100% at fault. However, if the carrying vessel is involved in a collision with another vessel, and the cargo owner decides to sue the other vessel, the carrying owner may still be liable for 50% of the damages paid by the other vessel’s owner to the cargo owner, even if the carrying owner was only 1% at fault for the collision.
To address this issue, shipowners have included a clause in their contracts of carriage with the shipper/cargo owner, allowing them to seek back from the shipper/cargo owner the 50% contribution they may be obliged to pay out to the non-carrying vessel in a collision.
It is no longer accurate to state that the U.S. strictly adheres to a “50 percent each” division of damages approach. The Reliable Transfer (1975) case has paved the way for U.S. law to align with the legal perspectives of other traditional maritime nations. However, this does not mean that the “both to blame” approach has become outdated.
Damages Award Currency
In the past, it was commonly believed that English courts should only award damages in the currency of sterling, with the conversion taking place either at the time of the breach of contract or at the time of the loss incurred in tort. However, this approach fell out of favor in the 1970s, as seen in the Miliangos v George Frank (Textiles) Ltd. case, which established that courts had the power to give judgments in foreign currencies without the need for conversion into sterling. This development has had implications for maritime law as well. Since 1979, there have been three equally valid options for determining how damages should be awarded in maritime cases.
The old idea was to award damages in sterling only, and if the claim was in a foreign currency, it would be converted to sterling at the time of loss.
The second alternative is to award damages in the currency of the expenditure or loss. This means that the innocent party will be compensated in the currency in which they directly or immediately incurred the loss, rather than converting it into another currency such as sterling.
This option is often favored by the plaintiff claimant, as it involves awarding damages in the currency of the plaintiff. This means that damages would be awarded in the currency of the country where the plaintiff actually and effectively felt their loss, which is often the home-based currency of the plaintiff or the currency in which they normally operate.
Judges and arbitrators have become more flexible in their approach to currency, and the third method of awarding damages, in the currency of the plaintiff, seems to be the most preferred one currently. This method aligns with the fundamental principle of damages, which is to restore the innocent party to their original position, known as the “restitutio in integrum” basis. In other words, the innocent party should be compensated in the currency in which they suffered the loss to ensure that they are fully restored to their original position.
Limitation Period in Ship Collisions
The Maritime Conventions Act 1911 (Section 8) sets a time limit of two years from the cause of action for commencing legal proceedings in a collision suit. However, the court has the discretion to extend this period if there are justifiable circumstances. If the delay in commencing legal proceedings is solely due to the claimant’s lack of knowledge of their legal rights, it is unlikely that the court will grant an extension.
The Alter Tabith and Alan Fushi (1995) Case
In the case of The Alter Tabith and Alan Fushi (1995), the plaintiffs applied for an extension of time for the limitation period provided by the Maritime Conventions Act 1911 (Section 8) after negotiations between the P&I (Protection and Indemnity) Clubs of the vessels. However, the plaintiffs’ P&I (Protection and Indemnity) Club case handler made a mistake in noting down the time limit. The Court of Appeal ruled that the plaintiff had to demonstrate a good reason for an extension, which was essentially a question of fact. If a good reason was established, the court would then exercise its discretion and consider the balance of hardship in granting the extension. The failure to issue a protective writ was due to the plaintiffs’ P&I (Protection and Indemnity) Club case handler’s own mistake, which did not constitute a valid explanation for the extension. Mere carelessness has never been a good reason for an extension, and a valid explanation for the failure to issue a protective writ was imperative.
The Maritime Conventions Act 1911 (Section 8) has been replaced by the Merchant Shipping Act 1995 (Section 190) regarding the limitation period for legal proceedings in a collision suit. The current limitation period is two years from the date of the collision, and the court may exercise discretion to extend the period for a good reason. The burden of proving a good reason lies with the claimant, and mere carelessness or mistake is not a good reason. The court will also consider the balance of hardship when deciding whether to grant an extension.
What is Ship 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 (International Regulations for Preventing Collisions at Sea) 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 (International Regulations for Preventing Collisions at Sea) 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
- Technical details
COLREGS (International Regulations for Preventing Collisions at Sea) 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 Ship 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 (International Regulations for Preventing Collisions at Sea) 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 Ship 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
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.
What are the Collision Regulations?
The Collision Regulations, also known as the International Regulations for Preventing Collisions at Sea (COLREGs), are a set of rules and guidelines established by the International Maritime Organization (IMO) to ensure the safe navigation of vessels and prevent collisions on the high seas and in connected navigable waters. These regulations were first adopted in 1972 and have been periodically amended to address the evolving needs of the maritime industry.
The COLREGs consist of a series of rules that govern the conduct of vessels under various conditions, including:
- General rules: These outline the responsibilities of vessel operators and the importance of maintaining a proper lookout, safe speed, and risk assessment.
- Steering and sailing rules: These determine the actions vessels should take when they encounter one another, such as which vessel has the right of way, how to overtake, and how to maneuver in narrow channels.
- Lights and shapes: These prescribe the proper display of navigation lights and day shapes to indicate a vessel’s status, size, and operating conditions, ensuring that other vessels can identify and react accordingly.
- Sound and light signals: These establish the use of sound and light signals to communicate intentions, such as altering course, stopping, or reversing, to other vessels in various visibility conditions.
- Exemptions: These provide specific exceptions to the rules for certain types of vessels, such as fishing vessels, vessels not under command, and vessels constrained by their draft.
The COLREGs apply to all vessels on the high seas and in coastal waters that are connected to them, regardless of their flag state. All mariners must be familiar with these regulations and follow them to ensure the safety of navigation and prevent collisions at sea.
How should damages for injury caused by a collision be awarded?
The process for awarding damages for injury caused by a collision varies depending on the jurisdiction and the specific circumstances surrounding the incident. Generally, when a maritime collision occurs, the legal principles applied in determining liability and awarding damages are based on the concepts of negligence, causation, and apportionment of fault. Here are some general steps that may be followed:
- Establishing negligence: To determine liability, it must be established that one or both parties involved in the collision were negligent. Negligence is the failure to exercise reasonable care under the circumstances, which can include failure to comply with the COLREGs, failing to maintain a proper lookout, or operating at an unsafe speed.
- Proving causation: Once negligence is established, it must be shown that the negligent actions directly caused or contributed to the injury or damages sustained. This requires proving a causal link between the negligent behavior and the resulting harm.
- Apportioning fault: In many jurisdictions, the concept of comparative fault or apportionment of liability is applied. This means that if both parties contributed to the collision, the fault is apportioned between them based on the degree of their respective negligence. The damages awarded will then be adjusted accordingly.
- Assessing damages: Damages awarded in maritime collision cases can include compensation for property damage, personal injury, loss of earnings, and other related losses. The specific types of damages and the methods for calculating them will vary depending on the jurisdiction and the particular facts of the case.
- Legal proceedings: To recover damages, the injured party typically initiates legal proceedings against the negligent party. This process may involve negotiations, mediation, or litigation, depending on the jurisdiction and the circumstances of the case.
It is important to consult with a maritime lawyer who is familiar with the laws and regulations governing collisions and the specific jurisdiction in which the incident occurred. They can provide guidance on the appropriate steps to take and help navigate the complex legal process to seek compensation for damages resulting from a maritime collision.
What is the “Presumption of Fault’?
The “presumption of fault” is a legal principle that applies in certain circumstances when determining liability in an accident or collision. Under this concept, when a particular event or circumstance occurs, the law presumes that one party is at fault or negligent, even without direct evidence of their negligence. In the context of maritime collisions, the presumption of fault often arises when a vessel violates certain rules or regulations, such as the International Regulations for Preventing Collisions at Sea (COLREGs).
The purpose of the presumption of fault is to shift the burden of proof from the injured party to the presumed negligent party. This means that the party presumed to be at fault must present evidence to rebut the presumption and prove that their actions were not negligent or that their negligence did not contribute to the collision.
For example, in a maritime collision, if a vessel is found to have violated the COLREGs, the presumption of fault may be applied against that vessel. To overcome this presumption, the vessel’s operator would need to present evidence showing that their actions were reasonable under the circumstances or that the violation of the COLREGs did not contribute to the collision.
It is essential to note that the presumption of fault does not automatically determine liability; it merely establishes an initial assumption that can be rebutted by the party against whom it is applied. Ultimately, the determination of liability and the apportionment of a fault will depend on the specific facts and circumstances of the case and the legal principles applied in the relevant jurisdiction.
What is the relevance of the Tort of Negligence to Collisions?
The tort of negligence is a fundamental legal principle in determining liability and awarding damages in the context of collisions, including maritime collisions. It is relevant because it provides a framework for establishing fault when a collision occurs due to the failure of a party to exercise the proper standard of care.
In the context of maritime collisions, the tort of negligence has the following relevance:
- Duty of care: All vessel operators have a duty of care to other vessels, their passengers, crew, and property. This duty of care includes complying with the COLREGs, maintaining a proper lookout, navigating at a safe speed, and taking appropriate actions to avoid collisions.
- Breach of duty: A breach of duty occurs when a vessel operator fails to exercise reasonable care under the circumstances. This may involve a violation of the COLREGs, failure to maintain a proper lookout or other actions that deviate from the expected standard of care for a prudent mariner.
- Causation: To establish negligence, it must be demonstrated that the breach of duty directly caused or contributed to the collision and the resulting damages. This requires proving a causal link between the negligent actions and the harm suffered.
- Damages: If negligence is established, the liable party may be held responsible for compensating the injured party for their losses. Damages may include costs related to property damage, personal injury, loss of earnings, and other related losses.
- Apportionment of fault: In many jurisdictions, the concept of comparative fault or apportionment of liability is applied in cases involving negligence. This means that if both parties contributed to the collision, the fault is apportioned between them based on the degree of their respective negligence. The damages awarded will then be adjusted accordingly.
The tort of negligence is central to determining liability in maritime collisions, as it helps to identify the party or parties responsible for the accident and establish their obligation to compensate those who suffered damages as a result of their negligent actions.
How will damages be assessed for Collision Damage?
The assessment of damages for collision damage in a maritime context involves various factors and considerations, which can depend on the jurisdiction and the specific circumstances of the case. Generally, the goal is to compensate the injured party for the losses they have suffered as a result of the collision. Here are some common factors and types of damages that may be considered when assessing collision damages:
- Property damage: Compensation for property damage typically includes the costs of repairing or replacing the damaged vessel or its parts. This can involve assessing the extent of the damage, the market value of the vessel or its parts, and the costs associated with repairs or replacement.
- Loss of use: If a vessel is rendered unusable due to the collision, the injured party may be compensated for the loss of use during the period the vessel is being repaired or replaced. This could include lost profits or income, as well as any additional costs incurred, such as hiring a substitute vessel.
- Personal injury: If individuals are injured as a result of the collision, compensation may be awarded for medical expenses, pain and suffering, loss of earning capacity, and other related losses.
- Environmental damage: In cases where the collision results in environmental damage, such as an oil spill, the responsible party may be held liable for cleanup costs, fines, and any other related expenses.
- Salvage and wreck removal: The costs associated with salvaging a damaged vessel, removing any wreckage, or mitigating hazards to navigation may also be included in the assessment of damages.
- Apportionment of fault: As mentioned earlier, many jurisdictions apply the principle of comparative fault, where damages are apportioned based on the degree of negligence of each party involved in the collision. This means that the damages awarded to an injured party may be reduced in proportion to their own degree of fault, if any.
The assessment of damages in collision cases can be a complex process that requires a thorough evaluation of the facts and circumstances surrounding the incident. It may involve expert testimony from marine surveyors, engineers, or other specialists to accurately determine the extent of the damage and the appropriate compensation. Additionally, the specific methods and rules for assessing damages can vary depending on the jurisdiction, so consulting with an experienced maritime lawyer is essential for navigating the process and ensuring a fair outcome.
Why do “Both to Blame Clauses” exist?
The United States Ship Collision Acts pertain to a series of laws promulgated by the American government to regulate the incidence of collisions between ships. The first of these laws was passed in 1864 and was subsequently followed by other legal instruments, including the Shipowners’ Limitation of Liability Act of 1851 and the Rules of Navigation Act of 1885. These legislative measures laid down provisions for determining liability and damages in cases of vessel collisions occurring within US territorial waters. The Ship Collision Acts have undergone revision and modification over time to keep up with the changing circumstances and technological advancements in the shipping industry.
In contrast to many European nations, the United States did not ratify the 1910 Convention. Consequently, it has continued to follow the common law doctrine that mandates the division of overall damages resulting from a maritime collision equally between the involved vessels, regardless of the specific percentage of fault apportioned to each ship. This divergence in collision law between the US and the UK since 1911 has resulted in the UK’s development of statutory Admiralty Law, while the US adheres to traditional common law principles. As a result, the “Both to Blame Collision” Clause has persisted.
“Both to Blame Clauses” exist to address situations where multiple parties are found to be at fault in a maritime collision. These clauses are typically included in contracts such as bills of lading, charter parties, and other shipping agreements. The primary purpose of these clauses is to allocate liability and apportion damages between the involved parties when both have contributed to the collision due to their negligence.
There are several reasons why “Both to Blame Clauses” exist:
- Apportionment of fault: In many jurisdictions, the principle of comparative fault is applied when determining liability in a maritime collision. “Both to Blame Clauses” help to establish a contractual framework for apportioning fault and damages between the parties involved in the collision, in proportion to their respective degrees of negligence.
- Fair distribution of liability: These clauses promote a more equitable distribution of liability by ensuring that each party involved in a collision is held responsible for the damages resulting from their own negligence, rather than one party bearing the entire burden.
- Legal certainty: By including “Both to Blame Clauses” in shipping contracts, parties have a clearer understanding of how liability and damages will be apportioned in the event of a collision. This helps to reduce uncertainty and potential disputes that may arise from collisions where both parties are at fault.
- Risk management: From a risk management perspective, these clauses allow parties to anticipate and plan for potential liabilities arising from maritime collisions, making it easier to obtain insurance coverage and negotiate contractual arrangements.
- Settlement and dispute resolution: “Both to Blame Clauses” can facilitate settlement negotiations and dispute resolution by providing a predetermined framework for allocating liability and damages, reducing the need for lengthy litigation and associated costs.
It is important to note that the enforceability and interpretation of “Both to Blame Clauses” can vary depending on the jurisdiction and the specific language of the clause. Parties should consult with experienced maritime lawyers to ensure that these clauses are drafted and interpreted in accordance with applicable laws and regulations.
What is “apportionment of blame” in Ship Collisions?
Apportionment of blame in ship collisions refers to the process of determining the extent to which each party involved in a maritime accident is responsible for the incident. This process is necessary to establish liability for damages and to determine the compensation to be paid by each party.
In the event of a ship collision, several factors are taken into consideration to apportion blame, including:
- Navigational errors: The actions and decisions of the crew members of each vessel in adhering to the International Regulations for Preventing Collisions at Sea (COLREGs) will be scrutinized. This may include assessing whether proper lookout was maintained if the ships followed appropriate rules for crossing, overtaking, and head-on situations and if the crew took adequate action to avoid a collision.
- Communication failures: Communication between vessels is crucial to avoid collisions. If one or both vessels failed to communicate their intentions or misinterpreted the other vessel’s signals, this could contribute to the apportionment of blame.
- Equipment malfunctions: If any navigational, communication, or propulsion equipment malfunctioned or was improperly used, this could also impact the determination of fault.
- Weather conditions: The weather conditions at the time of the collision, such as visibility, sea state, and wind direction, are considered in determining the responsibility of the parties involved.
- Human factors: Fatigue, lack of training, or other human errors may contribute to the collision and will be factored into the apportionment of blame.
- Compliance with regulations: Compliance with international, national, and local maritime regulations and the company’s own safety management system will be assessed to determine if any breaches contributed to the collision.
After a thorough investigation, blame may be apportioned to one or both parties involved in the collision. In some cases, both parties may be found partially at fault, and the apportionment of blame will be divided between them based on the extent of their respective contributions to the accident. This will ultimately affect the amount of compensation each party will have to pay for damages and any legal consequences that may arise.
How a judge must consider the “causative potency” of an act alleged to have caused an accident?
When determining the causative potency of an act alleged to have caused an accident, a judge must consider several factors to establish the extent to which the act contributed to the occurrence and the resulting damages. Causative potency refers to the relative strength or influence of a party’s actions in causing the accident. The higher the causative potency, the greater the liability attributed to that party. Here are some factors a judge may consider when assessing causative potency:
- Proximity: The judge will examine how closely related the act in question is to the accident. If the act directly led to the accident or was the immediate cause, it would likely have a high causative potency.
- Foreseeability: The judge will evaluate if the consequences of the act were reasonably foreseeable. If the party could have anticipated the outcome of their actions, they may be held more liable for the accident.
- Intentionality: The judge will assess whether the act was intentional or negligent. Intentional acts or those resulting from gross negligence may be deemed to have a higher causative potency.
- Degree of control: The judge will consider the extent to which the party had control over the situation and their ability to prevent the accident. Greater control implies a higher causative potency.
- Multiple causes: In situations where multiple acts or parties contributed to the accident, the judge will determine the relative causative potency of each act or party. This involves weighing the significance of each contributing factor and apportioning liability accordingly.
- Mitigating factors: The judge will take into account any mitigating factors that may have reduced the impact of the act or contributed to the accident to a lesser degree. This could result in lower causative potency.
- Legal and regulatory compliance: The judge will consider whether the parties adhered to relevant laws, regulations, and industry standards. Non-compliance may increase the causative potency of an act.
By examining these factors, a judge can assess the causative potency of an act and determine the appropriate apportionment of blame and liability in an accident. This process ensures that the parties responsible for the accident are held accountable and that the victims are fairly compensated.