United States

The U.S.A. did not ratify the 1910 Convention and thus has continued all these years with the common law concept that overall/aggregate damages after a maritime collision should be divided equally as between the involved ships, regardless of any specific percentage of fault attributed against each. Thus English collision law and U.S. collision law have diverged since 1911 on this point, the U.S. sticking to traditional common law principles and the United Kingdom developing along statutory Admiralty Law lines. This has resulted in the continued life of the ‘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 which 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.  Of course, if he elects to sue the carrying vessel (the vessel which was carrying his cargo), presumably for breach of contract of carriage, he would be met with the Hague-Visby Rules defence of error in navigation or management (and such defence will normally have also been incorporated into any charter party terms). Therefore the cargo owner will elect to sue the non-carrier i.e. one of the other involved and at fault vessels. There is no contractual relationship between himself and such other vessel and therefore, of course, he will sue that shipowner in tort, the tort of negligence. So, we now have the position where the cargo owner has successfully sued the non-carrying vessel for full damages for injury to his cargo. This non-carrying shipowner will then seek a contribution from the carrying owner (i.e. the shipowner who was carrying the cargo of the cargo owner) who is also at fault for the collision. Because the United States law is founded upon the notion of equally divided damages, regardless of the percentage of fault on each vessel, the contribution would be 50% of the amount the non-carrying owner had to pay to the cargo owner.