Collisions at Sea

Negligence

The law of negligence applies to collisions of vessels at sea.  Similar principles to those applicable to road traffic accidents apply.

Collisions are generally attributable to the negligence of the crew.  The ship owner is generally liable for the negligence as the crew’s employer unless the action is due to a frolic outside the remit of their employment. In accordance with the general principles of law, the crew may also be personally liable.

If the damage is due to the actions of an independent contractor, then the employer will not be liable unless in negligence unless there is negligence in the selection of the independent contractor.

The general principle is that the tug is the servant of the tow.  Accordingly, the owners of the ship under tow are vicariously liable for default on the part of the tug in most cases.

Pilots will generally be regarded as independent contractors. However, the Pilotage Act 1913 makes the ship owner vicariously liable for the default of compulsory pilots.  In consequence, the ship owners may not take action against such pilots for negligence.

The standard of care in respect of persons involved in collisions is judged by standards of prudent seamanship.  This is a question of fact to be determined by the judge or jury, as the case may be.

Navigation Rules

The Collision Regulations have been made for over 150 years.  As with rules of the road and road traffic bye-laws, they are likely to inform the standard required of prudent seamanship.

Where a collision occurs in international waters, the domestic courts apply domestic law.  Where it occurs within the jurisdiction of a foreign state, the law of that state applies.  In this case, the collision regulations and law of negligence will apply to the extent provided for under the law of the jurisdiction where the collision occurred.

The rules set out provisions in relation to look out, safe speeds, use of lights, , giving of signals, light and sound.  They deal with navigation where visibility is restricted or along a narrow channel.  They impose duty by all means including radar if present, to determine if there is a risk of collision.  If there is a risk of collision they impose a duty to take a positive action to avoid collisions.

The regulations do not exonerate the ship from the consequences of neglecting to take precautions which are required by the ordinary practice of seamen or by special circumstances.

Approaching Ships

The regulations deal with overtaking and with ships coming head-to-head.  The overtaking ship must keep out of the way of the ship being overtaken.  At sea, there are rules as to when a ship is deemed to be overtaking.

Where power driven ships approached each other head on, they must alter course to starboard to pass on the port-side of the other.  Where power-driven ships are crossing each other and there is a risk of collision or close proximity, the ship that has the other on her starboard side must keep out of the way.

This give-way ship must take early and substantial action to keep well clear of the other.  That other being the stand-on ship, its duty is to keep the speed and course.  Where for any cause the vessel required to keep a course speed, finds itself so close, that collision cannot be avoided by the action of that vessel alone shall take such action as best to avoid the collision.

Fault Issues

The Maritime Conventions Act reversed the prior principle that a breach of the regulations created a presumption of fault.  Each vessel will need to prove the other is in breach of duty of care.  The fact of collision will usually raise a presumption of negligence on the part of the one or other ship.

A ship owner may not be liable if it can show that the crew acted in the agony of the moment, due to sudden, unexpected and unforeseen crisis, provided they acted with due care and skill in the circumstances, there may not be negligence.

The negligence must cause the loss in the usual way in order to sustain a claim, where the general principles of causation apply.  An intervening supervening event may be the approximate cause.  See generally the sections on causation.

Many collisions will involve elements of fault on the part of both parties.  The court may apportion liability between the ships under the Maritime Conventions Act 1911.  Principles similar to those applicable to contribution and concurrent wrongdoers apply in situations akin to a pileup.  Each ship’s contribution must be considered and assessed separately.

Where a default arises other than from vessels, then ordinary law on apportionment and civil liability arises under the Civil Liability Act.

The Maritime Conventions Act applies where two or more ships collide, but one is not at fault.  As regards the innocent ship, the apportionment arise under general Civil Liability Act principle.

Damages

General principles of negligence apply to damage.  It must be foreseeable by a reasonable person at the time of the negligent act or omission.  Principles for remoteness apply.

There is no recovery for pure economic loss.  The loss must be for physical damage and its financial consequence.  Accordingly, a vessel held by a time charter cannot recover in the claim for negligence. Where the claimant has the necessary proprietary or possessory interests, a claim may be sustained.

If the ship is lost, total damages are awarded on the basis of the ship’s value at the date of collision.  If it can be repaired, the cost of repair is the principal category of loss.  The full cost will generally be allowed even if it would be beneficial to the owner by avoiding the need for repairs.

It is generally possible to claim loss of operating profits at the end of the voyage in accordance with the ships existing charters.  The purpose is to put the innocent party in the position it would have been in but for the negligence.

Damages may be given for a loss of charter. Even if the vessel is not trading, compensation for loss of use would be awarded.

The Harbour, Docks and Piers Clauses Act makes provision for damage caused by ships to harbours, docks and piers owned by public authorities.  There is strict liability even if the authority has contributed.  Loss may extend to the pier, docks and works connected with it. The liability covers the cost of maintenance and repair but not consequential loss.

Time Limits

The Maritime Conventions Act 1911, provides a two year time limit in respect of collisions at sea.  Proceedings to enforce a claim made in respect of a  ship, its cargo, freight or any property on board or damages for loss of life or personal injury caused by default of a ship to any other person on board another ship are subject to a two-year time limit.

The court may extend the time limit to the extent sufficient to give a reasonable opportunity of arresting the ship, if it is satisfied that there has not been during the time allowed for bringing proceedings any reasonable opportunity for arresting the ships within the jurisdiction of the territorial sea of the court to which the plaintiff ship belongs or in which the plaintiff arises.

Jurisdiction

The Collision and Civil Jurisdiction Convention 1952 provides that actions for collisions between seagoing vessels or between seagoing vessels and inland navigation craft may only be commenced before the court

• where the defendant has his habitual residence or place of business,
• before the court or place where the arrest has been effected of the defendant ship or of any other ship belonging to the defendant which can lawfully be arrested or where the arrest could have been affected and bail or other security furnished or
• before the courts of the place of collision where the collision has occurred within the limits of a port or inland waters.

This second ground allows the court to assume jurisdiction in relation to collisions which have taken place outside the jurisdiction.