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Apportionment of liabilities following maritime collision

“Amalgamation of Maritime Law thus becomes instruments, not answers to the riddles”

Master's Thesis 2014 47 Pages

Law - Miscellaneous

Excerpt

Table of Contents

1 SUMMARY

2 INTRODUCTION
2.1 General
2.2 Duty to maintain proper look-out – Rule 5
2.2.1 Introduction
2.2.2 Extra attention in certain areas or under certain conditions
2.2.3 Look-out by the use of instruments
2.2.4 Look-out while anchored
2.3 Safe Speed - rule 6
2.3.1 Safe speed in areas of restricted manoeuvrable waters
2.3.2 Safe speed in relation to bow- stern wakes
2.3.3 Reduced visibility
2.3.4 Small craft and safe speed in darkness.
2.4 Risk of Collision -rule 7
2.5 Action to Avoid Collision - rule 8
2.6 Narrow Channels - rule 9
2.7 Section II – Conduct of Vessels in Sight of One Another
2.7.1 The manoeuvre rules 13-15
2.7.2 Action by Stand-on Vessel - rule 17
2.7.3 Responsibilities between vessels - Rule 18
2.8 Section III - Conduct of vessels in Restricted Visibility- Rule 19

3 Apportionment of liability
3.1 Collision with other objects than ships.
3.2 Distribution Of Liabilities.
3.2.1 Only one ship at fault
3.2.2 Technical failure as the main triggering event.
3.3 Both To Blame.
3.3.1 50/50
3.3.2 60/40
3.3.3 75/25

4 BURDEN OF PROOF

5. GENERAL AVERAGE

6.ECONOMICAL CONSEQUENCES
6.1 LAW AND ECONOMICS
6.2 CARGO INSURANCE
6.3 P&I INSURANCE
6.4 STRICT LIABILITY OF BILL OF LADING
6.5 FREIGHT
6.6 RECOURSE AGAINST THE CARRIER'S SERVANT

7. CONCLUSION

Bibliography

1 SUMMARY

The aim of this thesis is to get a better understanding of collision liability between vessels, apportionment of liabilities and how combination of various maritime laws and regulations just serves as an instrument and not answers to the riddle. An event when a vessel is involved in collision it mostly leads to some damages to be suffered by the vessel/vessels, crew, cargo owners, state etc.

In a situation where the cargo gets damaged or lost, the claimant will bring a claim with an argument that carrier could have avoided or reduced the damage if he would have adhered to good seamanship, made right nautical decision in ample time and complied with Colregs. Which at when legally speaking is digging your own grave in most of the admiralty courts.

Art IV, rule 2(a) of Hague Visby Rules provide that neither contracting carrier nor the ship shall be responsible for loss and damage to the cargo resulting from "act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship.1 This defence available for the carrier against liabilities for cargo is known as "Nautical Fault."

I will not dig too much in past historical developments of maritime legislations and rules and regulations as that is not the core subject of the thesis rather I will give a brief outlay of the same.

The concept of Nautical fault defence stems out from the enactment of Harter's Act which later on was adopted as Hagues Rules by International Conventions that defined the carrier's rights and immunities.

Further on in 1978 Hamburg Rules changed the regime and deleted these immunities. The application of which was different in different situations. Abolition of Nautical Fault defence in Rotterdam Rules is a major attempt to amend this imbalance. Till what extent will it be able to serve the purpose is yet to be seen.

Art 4 (a) of Hamburg rules provide The carrier is liable:

(i) for loss of or damage to the goods or delay in delivery caused by fire, if the claimant proves that the fire arose from fault or neglect on the part of the carrier, his servants or agents;

(ii) for such loss, damage or delay in delivery which is proved by the claimant to have resulted from the fault or neglect of the carrier, his servants or agents, in taking all measures that could reasonably be required to put out the fire and avoid or mitigate its consequences.

(b) In case of fire on board the ship affecting the goods, if the claimant or the carrier so desires, a survey in accordance with shipping practices must be held into the cause and circumstances of the fire, and a copy of the surveyor's report shall be made available on demand to the carrier and the claimant.2 I have divided the objective of the work into two main parts. First I have concentrated on the International Regulations for Preventing Collisions at Sea 1972 (the Colregs) an indepth work on maritime collision respective to various situations. These are the rules of the road to the mariner, and a good understanding of these is vital in order to understand the collision liability between vessels. Some of them are quite simple and absolute rules that do not require much consideration, they are supplemented with some more general rules which serve as a guidance upon how to perform the navigation of the vessel. These rules of guidance can only be fully understood by knowledge of case law. I have, therefore, studied collision case law. I have included both civil collision cases and public prosecutions against officers on watch (OOW) subsequent to collisions.

The second main objective of the work has been to investigate the actual apportionment of liability. In this investigation I have looked at civil collision cases, and tried to see whether there is any general tendency of how the liability has been apportioned and also if the different apportionments can be said to contain any characteristics.

However, about the first main part concerning the Colregs, I have not attempted to give a complete account of case law in relation to all the relevant Colregs. The thesis has got a maximum restriction of 15000 words, and a full account would require much more space. Even though my investigation included all the relevant Steering rules, I have for the purpose of this thesis only included a thorough survey of the two most frequently used rules: Rule 5 – Look-out and Rule 6 – Safe Speed. Both are rules within the category mentioned above, which serves as guidance to the navigation. In order to avoid the thesis from appearing to incomplete, I have also written some very short accounts of the other most frequently used rules in the Colregs, which are relevant in the process of apportioning liability.

2 INTRODUCTION

2.1 General

The most distinguishing and important characteristic of sea transport is a great value possible to carry onboard each ship. Maritime commercial trade I believe is one of the most international industry in itself. A ship registered in one country; owner could be from another country; master and crew could be from third country, carrying cargo of the owners from fourth country, transitting different waters and carrying out commercial activity in other country's judicial boundaries. This makes it unarguably an industry that deals with legislation from so many different jurisdictions. And hence the uniformity in all these various legislation seeks a right balance. Which I feel that, unfortunately, the right balance between this various maritime legislation is still yet to be achieved.

Ships travel worldwide and it is quite evident that seafarers need a common set of rules upon how to manoeuvre and navigate in relation to each other, in order to avoid confusion and chaos by too many varying local rules. Several centuries of development have led to the Convention on the International Regulations for Preventing Collisions at Sea 1972 (the Colregs), which agreed upon on at an international conference organised by the International Maritime Organisation (IMO) in 1972, and put into force in 1977. The Convention is adopted by 144 contracting states which covers 98% of the world tonnage3, and is given application “to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels,” cf Colreg rule 1 (a). Applicability and enforcement is determined in relation to the flag of the vessel and the location. Coastal states have jurisdiction under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to extend the rules to foreign vessels, other than public vessels, within the adjacent territorial sea, even if the vessel is on an innocent passage, cf UNCLOS article 214.

CHAPTER 1

COLREGS

The 1972 Collision Regulations are divided into five major parts:

Part A: General

Part B: Steering and Sailing Rules

Part C: Lights and Shapes

Part D: Sound and Light Signals

Part E: Exemptions

Part B is the most interesting part in relation to this Thesis. It is divided into three subsections:

Section I Conduct of Vessels in any Condition of Visibility

Section II Conduct of Vessels in Sight of One Another

Section III Conduct of Vessels in Restricted Visibility

Section I – rule 5-10 - serves mainly as a mandatory guidance upon how to perform the navigation. In order to avoid close encounters or risk of collision situations, e.g. safe speed, proper look-out, no assumption to be made on the basis of scanty information, action to avoid collision to be positive, made in ample time and with the observance of good seamanship, etc. Section II consists mainly of more or less absolute manoeuvre rules and Section III of the guidance upon how to manoeuvre in restricted visibility.

I will start by giving a thorough account of rule 5 and 6. Then I will give a short presentation of rule 7, 8 and 9, which also are relevant in the context of apportionment of liability for collisions. Thereafter I will very shortly mention the headlines of the manoeuvre rules in Section II and finally I will briefly give an account for rule number 19 in Section III regarding restricted visibility.

2.2 Duty to maintain proper look-out – Rule 5

2.2.1 Introduction

Every vessel shall at all times maintain a proper look-out by sight and 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 rule refers both to the duty of the OOW to at all times. During his or her service as navigational officer, to keep a proper look-out in order to have a sufficient overview of the situation, and to the additional duty of having a seaman dedicated solely to the role as look- out when the circumstances so requires. The latter is to report any lights, vessels or large floating objects which he or she sees, and, in low visibility, any fog signals which can be heard. The extra look-out is to be posted during the dark hours of the night and sometimes at day, especially when the visibility is restricted. When considering the sufficiency of this extra look-out, the Courts are likely to

take into account the number of seamen available in addition to the state of visibility, probability of meeting other vessels and some other factors. No definite rules apply. At night in areas with heavy traffic, even relatively small vessels may be expected to have a man posted on look-out. While out in the open ocean the degree of look-out might be relaxed even on large ships if other vessels are infrequently seen and are unlikely to be encountered.

I will mention some examples from case law where the duty to maintain proper look-out has been central.

Case 1: A dredger collided with a fishing vessel in Dover Traffic Separation Zone, in daylight, calm conditions and clear visibility. The dredger had been on passage and followed the flow of traffic, and the fishing vessel was not engaged in fishing when in the separation zone. The vessels approached each other on a collision course for 10 to 12 minutes with the fishing vessel on the dredger’s port bow. The watchkeeper on the dredger had seen the other vessel and having identified it as a fishing vessel not engaged in fishing, was expecting her to alter the course at the last minute.

About the provision of a lookout, STCW 95 states that the officer in charge of the navigation watch may be the sole lookout “in daylight” provided it can satisfy the provisions in STCW for lookout requirements (STCW, 95). Despite this international requirement to maintain a lookout at night, the MAIB research also points that at least three of fifteen vessels involved in accidents had failed to do so.5

2.2.2 Extra attention in certain areas or under certain conditions

Proper look-out is naturally one of the keystones in the collision avoidance procedures and also in the term “good seamanship”. Failure to comply with this weighs heavily in the evaluation of faults, even though the vessel was not the give way vessel. It is even more highlighted if the failure takes place in the area or under a condition which requires extra attention, like mentioned in the start above, during the dark hours of the night, reduced visibility, areas of high traffic density, etc.

Case 2 : Trekroner – Klitjyden case illustrates this. The fishing vessel Klitjyden had been lying more or less still and was literary run down when she was fishing, her master was found to be particularly blameworthy for not having secured his vessel by sufficient look-out in an area with quite high traffic density.

2.2.3 Look-out by the use of instruments

The term in Colreg 5: “By all available means appropriate,” have always been interpreted by the courts as including the effective use of available instruments and equipment, in addition to the use of both sight and hearing. This applies particularly to radar, but also the use of binoculars and information received by VHF from a VTS or other ships would be included in the term “all available means appropriate.6 Most likely also information by Automatic Information System (AIS) is included, even though I have not yet found any collision cases discussing the use of AIS. Some authors of nautical articles states that this instrument will be very important for future look-out duties and also a future revision of the Collision Regulations, since it transmits automatically information about the meeting vessels speed, heading, type, characteristics, etc; thus making the extraordinary rules in Colreg 19 superfluous. The nautical authors might prove to be right one day, but it is a long way to go since the system is still subject to several sources of errors that have an impact on the accuracy of the system. Also, very few smaller vessels have the system installed and the smaller vessels neither have radar, ECDIS or any accurate Electronic Chart Display ECD, which is a precondition to make use of the information in an effective way. However, failure to make use of information by the AIS that e.g. a fully laden tanker is on a heading that involves risk of collision, will most likely be looked upon as a failure to maintain proper look-out, similarly as the failure to make use of information from a VTS. According to the theory a proper look-out also includes paying attention to what is happening aboard own vessel; e.g. keeping a check on the steering and seeing that equipment required for keeping the vessel on course is functioning correctly.7

2.2.4 Look-out while anchored

The duty to maintain look-out also applies while anchored, especially in circumstances where forces of wind or currents can cause dragging of the anchor, or if the anchorage is exposed to passing vessels.

CHAPTER 2

2.3 Safe Speed - rule 6

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 consideration: For a complete list please confer the Colregs.

From the time the steamships started to appear on the scene, speed has been an important element of the nautical rules of the road. In the present set of rules, the obligation to proceed at safe speed is perhaps the most important risk management factor. Excessive speed reduces the time available to detect and assess developing risks and to take effective avoiding action. High speed also increases the potential of more devastating damages if a collision should incur.

The total overview after investigating collision cases shows that this is the rule in the Colregs that has been most frequently used by the courts.The safe speed requirement appears twice in the Collision Regulations. First in rule 6, which is applicable to all conditions of visibility, and then in rule 19(b), which is applicable in low visibility. However, also rule number 2, responsibility, due care and practice of seamen, is of importance when considering safe speed.

Rule number 6 enumerates a list of extensive, but not exhaustive, risk assessment factors to be considered by the mariner when determining what would be safe speed under the circumstances. As a starting point, the rule sets an objective standard, but the result of what is considered may be different for two ships in the same collision. Each vessel must apply the factors to the particular circumstances and conditions. If the circumstances change, the assessment of speed must be reassessed in the light of the changes. There have been some attempts at finding a clearer and more comprehensive understanding of what is to be considered safe speed. IMO has discussed diagrams with average stopping or turning distances seen in relation to ships mass, speed, breaking effect, etc. However, this has only ended in an obligation for each ship to have its own manoeuvring data displayed on the bridge. The number of varying factors is too great for a more accurate common approach to succeed. The manoeuvre data must be referred in relation to visibility, number of vessels in the area, how much room there is to manoeuvre, experience of the crew, tiredness, whether the ship is fitted with radar, etc. Earlier case law also had a rule of thumb that a vessel navigating in restricted visibility should be able to stop at half the visible distance. This is however no longer a valid guidance in modern case law, at least not if the involved vessels are equipped with radar. By indicating that the listed factors are “among those taken into account,” rule number 6 makes it clear that the list is not meant to be exhaustive. As mentioned, it must also be seen in relation to, for example, the responsibilities in rule number 2. Eg. A vessel carrying hazardous cargo or transporting passengers must consider the additional risk when determining safe speed. A vessel navigating in the area of particular environmental sensitivity must consider the potential danger of her fuel or oil cargo. etc.8 The term “safe speed” does not mean that setting a high speed under good conditions is precluded.9 If a ship is involved in a collision it does not necessarily follow that she was initially proceeding at an unsafe speed. In clear visibility, collisions can be attributed to bad look-out, or to wrongful action subsequent to detection, rather than to high initial speed.10

2.3.1 Safe speed in areas of restricted manoeuvrable waters

A larger ship may need 10 or 15 ship lengths to perform a crash stop when proceeding at normal service speed at the open sea. This often means several kilometres. When entering waters with restrictions in manoeuvring space due to shallow water or a solid shore, service speed will usually not be safe, and the speed must be reduced. Also hazards resulting from reduced line of sight due to the surrounding geography, number of other vessels in the area, hydrodynamic effects, such as bow cushion, bank suction and interaction between ships, can be eliminated or reduced by a reduction of speed.

Also in the case law, regarding collisions between ships, it is at times quite self-evident that one of the ships did not proceed at a safe speed under the given circumstances. In such cases, the conclusion that this was one of the major causes is often quite close.

Case 3: Concerning suction and speed took place at Iceland. Bakkafoss a 3539 gt containership was proceeding into the harbour entrance at Vestmannaeyar Harbour at a speed of 5-6 knots. A side wind contributed to the ship drifting towards one of the breakwaters, and the master and pilot had to increase to half speed ahead. Due to suction from the breakwater and a steep mountain wall on one of the sides, the ship did not react as normal to the rudder, and the ship collided into several moored vessels. The court concluded that it was blameworthy to proceed into the entrance at a speed of 5-6 knots. The speed most likely contributed to the suction from the breakwater and the rock. OOW the master must have been in a dilemma, if he had chosen a lower speed, it would have meant lower steering speed and stronger influence by the wind. The bow thruster could perhaps have helped him off, since it is more efficient at lower speeds; however the master was likely to be damned at whatever speed he chose. That was also reflected in the judgement which concluded that the ship should have had a tug at the stem. The harbour authorities and pilot were blamed for not requiring this since they had previous experience from similar incidents with ships of this size in the harbour entrance.

[...]


1 Hague-Visby Rules

2 Hamburg Rules

3 www.imo.org/Conventions

4 Allen (2005) p.56

5 http://www.marifuture.org/Publications/Papers

6 Cockroft 1996, p.20

7 Cockroft 1996, p.23

8 Allen (2005) p.177

9 Allen (2005) p.175-177

10 Cockroft (1996) p.26

Details

Pages
47
Year
2014
ISBN (eBook)
9783668006027
ISBN (Book)
9783668006034
File size
652 KB
Language
English
Catalog Number
v301416
Institution / College
University of Southampton
Grade
Merit
Tags
apportionment following maritime collision amalgamation

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Title: Apportionment of liabilities following maritime collision