A collision is said to exist when there is contact between two ships regardless of whether they are moving or at anchor. Therefore, it is necessary to draw a distinction amongst contracts between:
- a ship and another ship whether moving or stationary (i.e. a 'collision')
- a ship and a floating object which is not a ship (such as a floating oil rig, loading/discharge tank or mooring buoy); OR
- 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).
The contracts in relation to collision between ships is governed by different rule of law as against the contracts between a ship and a 'fixed or floating object' ("FFO") that is not a ship.
Claims for losses and damages to goods and property arising as a result of collisions between ships are very complex. They usually occur without much warning and require quick decisions to be taken, which can have a major impact on the future handling of the incident and on the merits of the consequent claims and liabilities. The issues commonly involve damage to each of the vessels, general average, salvage, damage to cargo, security and limitation of liability.
When vessels collide, there is usually a degree of fault or responsibility on each of the vessels involved. When such an incident occurs, investigation needs to take place and evidence be obtained in order to try to determine the circumstances surrounding the collision as well as the resulting losses to the vessels and any cargo involved. An apportionment of responsibility for the collision is then agreed or determined on a percentage basis between each of the vessels depending upon the circumstances surrounding the incident. Where a collision involves two vessels both at sea, responsibility is usually apportioned around 50-50 or 60-40 between the vessels, unless one of the vessels involved is more exceptionally at fault.
For losses and damages to cargo due to a collision between vessels there is a possible recovery claim against the vessel carrying the cargo and also against the other colliding vessel. Generally, in a collision case, the carrying vessel will attempt to try to defend liability on the basis of an "error in navigation" defence. Therefore, unless it is possible to prove that the collision was caused by un-seaworthiness of the carrying vessel say due to a mechanical failure or a lack of crew or unqualified crew on the bridge, then it could be difficult to establish liability against the carrying vessel.
When two vessels collide the following claims are likely to arise:
- Collision damage to the hulls of the colliding vessels;
- Damage to the cargo carried on one or both vessels;
- Personal injury claims;
- Salvage claims;
- Pollution claims;
- General average claims;
- Delay claims.
It is pertinent to note that any failure to act efficiently and appropriately could lead to jeopardising the ability to recover in full under the collision liability insurance; undermine future strategies that seek to minimise liability towards the opponent(s);result in unwanted legal and jurisdictional complexities; And create avoidable delays and additional financial exposures.
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 rules was undertaken by the International Maritime Organization (IMO) 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" and have been accepted by almost all countries.
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.
Mariners are expected to have specific knowledge of the COLREGS and any breach of these Rules 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 and following are some of the important Rules:
- 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.
- 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 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.
- 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.
- Action to avoid collision (Rule 8): In many cases collisions occur since 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 enough.
- Narrow Channels (Rule 9):
- A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit or the channel or fairway which lies on her starboard side as is safe and practicable.
- A vessel of less than 20 m in length or a sailing vessel shall not impede the passage of a vessel which can safely navigate only within a narrow channel or fairway.
- A vessel engaged in fishing shall not impede the passage of any other vessel navigating within a narrow channel or fairway.
- A vessel shall not cross a narrow channel of fairway if such crossing impedes the passage of a vessel which can safely navigate only within such channel or fairway. The latter vessel may use the sound signal prescribed in Rule 34 (d) if in doubt as to the intention of the crossing vessel.
- Any vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel.
- 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.
- 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.
- Crossing situation (Rule 15): Vessels crossing at sea are also often involved in collision situations. This is despite the clear Rule requiring the vessel that has the other on her starboard side, to 'give way', i.e. to keep clear,
which 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.
- 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.
- 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 one another" for the purposes of the Rules. Excessive speed in restricted visibility, regardless of circumstances, is never acceptable.
Given the complexity and the impact, it is advisable to have an early engagement with insurers, legal representation, technical survey experts and crew are each of these are vital components in the management of collision cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.