What is a ’Collision’?

A collision is defined in the Oxford English Dictionary as “the violent encounter of a moving body with another”. However, for the purposes of maritime law, there is a collision when there is contact between two ships regardless of whether they are moving or at anchor. Therefore, it is necessary to draw a distinction between contacts between a ship and another ship whether moving or stationary (i.e. a

’collision’) and contacts between a ship and a floating object that is not a ship (such as a floating oil rig, loading/discharge tank or mooring buoy), or between a ship and an object that is not afloat, (such as a bridge, wharf, crane or offshore structure sitting on the seabed) (i.e. an allusion). A collision between ships is usually governed by different rules of law than those that regulate contact between a ship and a

’fixed or floating object’ that is not a ship (an FFO). Similarly, a distinction is drawn in marine insurance between a collision between ’ships’ (whether both are moving or one is stationary) and a contact between a ship and a ’fixed or floating object’

(FFO). Therefore, the liability that arises as a result of a collision between ships and as a result of contact between a ship and an FFO may be (but does not have to be) insured with different insurers.

It is not necessary for the purposes of a collision that there be contact with the hull of another vessel so long as there is contact with some part of another vessel.

Therefore, there can be a collision if ship A comes into contact with the anchor chain of ship B or with the fishing net of another vessel. Indeed, the English court has held that a collision can occur even without actual contact if there is sufficient proximity between the vessels to cause damage to one or both vessels, as may occur, for example, if the wash of a ship proceeding at excessive speed causes ranging damage to another ship which is already berthed.⁷

7 The Royal Sovereign, [1950] 84 lloyd’s Rep. 549 and The Royal Eagle, [1950] 84 lloyd’s Rep. 543.

Perhaps surprisingly, it is not always easy to decide whether something is a ’ship’ or an ‘FFO.’ For example, a floating offshore oil storage and off-taking unit is equipped with machinery and propulsion and may therefore be operating at one moment in time as a ship transporting cargo, but is otherwise used for the storage and for the off-taking of oil and remain stationary offshore for long periods of time.⁸

This Chapter deals solely with issues that arise as a result of collision between ships whereas Chapter 9 deals with issues relating to contacts between ships and FFOs.

6.2 Fault

Most countries have laws which impose a duty of care on persons and corporations and require them to take reasonable care not to injure the person or property of other people or corporations.⁹ Breach of such duty usually gives rise to liability in tort¹⁰ and it is this principle that has traditionally formed the basis of collision liability.

Therefore, the mere fact that two ships collide is not in itself sufficient to establish liability; it must be proved that the collision was caused by the fault (i.e. negligence) of one or both ships.¹¹

To establish fault it is necessary to establish blameworthiness for a navigational error and that such error caused or contributed to the collision. The owners of ships are answerable for the faults of their own servants and agents including those of pilots, irrespective of whether the ship is under voluntary or compulsory pilotage.

To establish blameworthiness it is necessary to establish negligence or “a failure to exercise that degree of skill and care which is ordinarily to be found in a competent seaman” under the prevailing circumstances.¹² The key question is: could the collision have been prevented by the exercise of ordinary care, caution and skill?

The standard of care is the same for all vessels, regardless of type, trade or size and has been defined legally as follows: “the standard of skill and care to be applied by the court is that of the ordinary mariner and not the extraordinary one, and seamen under criticism should be judged by reference to the situation as it reasonably appeared to them at the time, and not by hindsight.”¹³

8 This aspect is also important in relation to the international conventions that regulate compensation for marine pollution, such as the ClC. The IOPC Fund has established a working group and commissioned a legal analysis in this regard. See their website: www.iopcfund.org for further details.

9 For more detailed commentary see Chapter 14 of the Gard Handbook on P&I Insurance.

10 This is referred to as ’delict’ or ’culpa’ in civil law jurisdictions.

11 For a searching review of this history see for example David R Owen, The Origins and Development of Marine Collision Law 51 Tul. L. Rev. 759 (1977). In the US, a different rule of ’divided damages’ applied for about 120 years until 1975 when it was changed in the landmark US Supreme Court decision: United States v Reliable Transfer Co., 421 U.S. 397, S. Ct. 1708, 44 L. Ed. 2d, 251, 1975 AMC 541.

12 Viscount Maugham in The Llanover, [1944] 78 lloyd’s Rep. 461.

13 Brandon, J in The Boleslaw Chrobry, [1974] 2 Lloyd’s Rep. 308, at 316.

The standard of care against which fault is measured is based on three broad principles:

i General concepts of prudent seamanship and reasonable care;

ii Statutory and regulatory rules on the movement and management of ships;

iii Traditionally accepted customs and usages.

The burden of proof rests upon the party that asserts a cause of action against the other party and when both ships have suffered damage, each party has the burden of proving a cause of action against the other.

liability for collision can be imposed even if there is no breach of any statute or convention. However, the most frequent basis for collision liability is the violation of internationally recognised regulationsor a local regulation such as a local harbour bye-law.

6.2.1 COLREGS

When assessing fault, courts have traditionally been guided by a widely accepted set of international rules for the conduct of vessels at sea that has been in existence since the end of the 19th century. A major revision of such rules was undertaken by the International Maritime Organization (IMO)¹⁴ in 1972, which produced the International Regulations for Preventing Collisions at Sea, 1972, more widely known as ’the COlREGS.’ These Rules are applicable “to all vessels upon the high seas and in all waters connected therewith”¹⁵ and have been accepted by almost

all countries.

The COlREGS are divided into five parts and have four attached annexes.¹⁶ Part A, Rules 1-3, deals with General Principles; Part B, Rules 4-19, contains the Steering and Sailing Rules, of special relevance in collision matters; Part C, Rules 20-31, governs the lights and shapes that ships must show for identification purposes; Part D, Rules 32-37, sets out the required sound and light signals; and, Part E, Rule 38, contains information about exempted vessels.

14 See Chapter 22.2 (Maritime Regulation and Compliance).

15 States are permitted to make specific rules for harbours, rivers, lakes, roadsteads and inland waterways connected to the high seas, but such rules should comply as closely as possible with the main rules. In many states the COlREGS also apply to inland waters. However, it should be noted that this is not so in the case of North American inland waters. For more detailed commentary see the Gard Handbook on P&I Insurance, 5th edition Chapter 9, p. 171-172.

16 COlREGS Annex I deals with the positioning and technical details of lights and shapes; Annex II deals with additional signals for fishing vessels fishing in close proximity; Annex III provides technical details of sound signal appliances; and, Annex IV lists the various distress signals.

It should be noted that, although the COlREGS were not designed or intended for establishing liability, fault or damages, the breach of these Rules, nevertheless, leads in most cases to the finding of fault or negligence that has been discussed in Chapter 6.2 above. It is particularly important to note that Rule 2 of the COlREGS provides that, whilst a breach of the Rules may demonstrate negligence, adherence to the Rules does not in itself mean lack of negligence or lead to exoneration from liability.

Mariners are expected to have very specific knowledge of the COlREGS and any breach of these Rules will always provide prima facie evidence of negligence. This is especially so in cases where a breach of the Steering and Sailing Rules appears to have occurred. Important examples are:

i look-out (Rule 5): Many collisions occur because of a lack of a proper look-out.

This has become especially problematic in the case of modern vessels and smaller crews. Nevertheless, the law does not make allowances for this and has interpreted a proper lookout to include: (a) Visual look-out; (b) Aural look-out;

and (c) Intelligent interpretation of data received from electronic navigational aids on board, at sea and ashore.

The number of persons that are necessary to constitute a proper look-out will depend on a number of factors, such as the size of the vessel, the degree of visibility, and the density and speed of traffic.

Monitoring or observing a radar screen, without proper plotting, does not constitute a proper look-out. Indeed, there have been a number of so-called ’radar-assisted collisions’ that have occurred as a result of the fact that undue reliance has been placed on radar information to the exclusion of other information.

ii Safe speed (Rule 6): Many collisions occur because vessels operate at speeds that are considered unsafe under the prevailing circumstances. unsafe speed usually means excessive speed, but not always so since there may be circumstances when an increase in speed may be a safe manoeuvre.

There is no one rule to define what is or is not a safe speed. The term ’safe’ is relative; the vessel must proceed at a speed that is considered safe for each particular circumstance, i.e. clear visibility on the open ocean; clear visibility in restricted waters or in dense traffic; in restricted visibility; with restricted draught etc. It is sometimes asserted that being able to stop a vessel in half the range of visibility may be a safe speed, but this cannot be relied on as a rule of law.

iii Risk of collision (Rule 7): Many collisions occur because vessels have failed to appreciate or determine that a risk of collision has developed. Careful observation is transformed into inference and prediction as to what may occur. Vessels are required to be constantly aware of the risk of collision and to determine, in the presence of other vessels, if such a risk exists. This determination must be made through all means available; i.e. look-out, electronic plotting, bearings etc.

iv Action to avoid collision (Rule 8): In many cases collisions occur due to the fact that inadequate or incorrect action has been taken to avoid collision. Rule 8 requires avoiding action to be taken early, to be positive and consistent with good seamanship. In many cases a timely and substantial course alteration alone may be sufficient.

v Traffic separation schemes (Rule 10): Although Traffic Separation Schemes (TSS) and Vessel Traffic Management Systems (VTMS) are specifically designed to separate vessels in order to avoid collisions, many collisions still occur within or close to such systems, either because vessels do not obey the COlREGS, which still apply fully within such systems, or because they simply navigate improperly within such systems based on fixed assumptions in the face of changing data.

vi Overtaking (Rule 13):This is a surprisingly frequent cause of collision. It is clear that overtaking vessels must keep out of the way of vessels being overtaken. If doubt exists, the faster vessel should assume that she is overtaking.

vii Head-on situation (Rule 14): A case of two vessels colliding head-on has the potential for the most serious damage. It occurs too frequently, even when relatively minor avoiding action could have prevented the collision. The expression in the Rule of “vessels meeting end-on or nearly end-on”, has been interpreted to mean opposing courses that are within some six degrees of each other. The Rule indicates that it is the direction of the vessel’s head and not the vessel’s course that must be used to determine if an end-on situation exists.

viii Crossing situation (Rule 15): Vessels crossing at sea are also often involved in collision situations. This is despite the very clear Rule that requires the vessel that has the other on her starboard side, to ’give way’, i.e. to keep clear. This can be achieved by (a) altering course to starboard so as to pass astern of the other vessel; (b) reducing the speed sufficiently to allow the other vessel to cross ahead; or (c) making a full-turn alteration to port. In some cases, doubt may arise as to whether there is a crossing or overtaking situation, which will depend on the degrees of the respective vessels’ courses to each other.

ix Action by ’stand-on’ vessel (Rule 17): This Rule sets out proper navigation rules for different stages of ’an emerging collision situation’: (a) At long range and before risk of collision exists, both vessels are free to take any avoidance action;

(b) When risk of collision first emerges, the give-way vessel is required to take early and substantial action to achieve a safe passing distance, whilst the stand-on vessel must keep her course and speed; (c) When it becomes apparent that the give-way vessel does not take appropriate action in accordance with the Rules, the stand-on vessel is required to give sound signal as per Rule 34(d) and is permitted to take action to avoid collision by her action alone, but must not alter course to port to avoid another vessel on her port side. Meanwhile, the give-way vessel is not relieved of her obligation to keep out of the way; and, (d) When collision cannot be avoided by the give-way vessel alone, the stand-on vessel is required to take such action as is most appropriate to avoid collision.

x Responsibilities between vessels (Rule 18): Many collisions occur because vessels do not understand the responsibilities that they have to each other, especially when hampered vessels are involved.

xi Conduct of vessels in restricted visibility (Rule 19): This has always been, and continues to be, the most serious cause of collision and is usually caused by excessive speed and/or improper look-out in restricted visibility. The Rule applies only to vessels “not in sight of one another” and applies not only when navigating in restricted visibility but also when doing so in the vicinity of such conditions. Observing another vessel by radar is not considered to be “in sight of …” for the purposes of the Rules. Excessive speed in restricted visibility, regardless of circumstances, is never acceptable.

Whilst COlREGS does not contain rules regulating radio (VHF) communication between ships on a collision course, case law has numerous examples of so-called

’VHF aided collisions’, which refers to the danger of inadequate communication between ships on a collision course in the time leading up to the collision.

The vessel that creates a situation of danger is generally assigned a higher proportion of fault than a vessel that fails to extricate itself from the dangerous situation that has been so created and the apportionment of fault is a qualitative rather than a quantitative exercise, i.e. it is not a matter of adding up the faults on both sides.

6.3 Liability

Traditionally, the law of many countries stipulated that when loss or damage was caused by the joint action of two or more negligent parties, the innocent party was entitled to claim his entire loss from one or all of the negligent parties leaving the negligent parties to claim contribution from each other thereafter. However, the disparity between the laws of different countries made it difficult to predict the outcome of collisions that involved multiple interests from multiple countries.

Therefore, the issue was considered by the Comité Maritime International (CMI)¹⁷ in depth at the beginning of the 20th century resulting in The International Convention for the unification of certain Rules of law with Respect to Collision, 1910 (The 1910 Collision Convention) which has been widely adopted throughout the world and which still remains in force as the basis of regulation of collision liability. The uSA is not a signatory to the 1910 Collision Convention, but follows the same principles with some exceptions.¹⁸

6.3.1 The liability of Colliding Ships to each Other and to Personnel, Cargoes