Sentimientos de fondo (background)

the 1910 Collision Convention

Article 4 of the 1910 Collision Convention provides that when cargo or other property belonging to third parties is lost or damaged as a result of a collision, each ship is liable only for that proportion of the loss or damage that can be attributed to its fault. However, if the collision results in death or personal injury, each ship that is at fault is jointly and severally liable in full for such claims without prejudice to the right of a party that has paid more than its proportion of blame to recover contribution from the other party or parties at fault for any sums that it may have paid in excess of that proportion.

Therefore, in a collision between ship A and ship B, if ship A is 70 per cent to blame and ship B is 30 per cent to blame, ship A will bear 70 per cent of the property claims that may be brought by the ship B interests and ship B will bear 30 per cent of the property claims that may be brought by the ship A interests. Such liabilities will then be set-off against each other and payment of the residual sum will be made by the one ship to the other.¹⁹ However, if the collision resulted in death or personal injury on ship A, ship A and ship B are jointly and severally liable for 100 per cent of such claims. If ship A pays such claims in full then ship A is entitled to claim 30 per cent of such payment from ship B whereas if ship B pays such claims in full it is entitled to claim 70 per cent of such payment from ship A.

17 See Chapter 22.2 (Maritime Regulation and Compliance).

18 See Chapter 22.4.1 (Maritime Regulation and Compliance).

19 For a specific example see the Case Study in Chapter 6.10 below.

In very exceptional circumstances²⁰ it may not be possible to establish the degree of fault (sometimes referred to as ’inscrutable fault’), or a collision may occur where nobody could be said to have been at fault, e.g. if the collision is caused by an inevitable accident.²¹ In both cases, the Convention provides that the loss shall ’lie where it falls’, i.e. each side shall bear its own damages and neither shall have a claim against the other.

6.3.1.1 Liability in Respect of Cargo

Article 4 of the 1910 Collision Convention provides that each ship is liable to each other for that proportion of cargo claims that can be attributed to its proportion of fault for the collision.²² However, it is necessary to distinguish between claims that may be brought by cargo interests against its carrying ship and claims that may be brought against the non-carrying ship.

In a collision between ship A and ship B where ship A is 70 per cent to blame and ship B is 30 per cent to blame, the cargo on ship A has a choice. It can either seek to recover 100 per cent of its loss from the carrying ship A under the contract of carriage, or it can choose to make claims against both ships. If it chooses to sue the carrying ship A, that claim will normally be subject to contractual terms contained in the relevant contract of carriage. Therefore, when cargo is carried under contracts of carriage that are subject to the Hague or Hague-Visby Rules or to domestic rules of law that are based on those Rules (which is usually the case), the carrier may be able in most circumstances to rely on the negligent error in navigation exception in Article IV Rule 2 (a) of the Rules as a defence to the claim. On the other hand, if the cargo on ship A chooses to bring a claim against ship B in tort, that claim is not subject to any contractual defences since there is no contract between the cargo on ship A and ship B. However, under the 1910 Collision Convention, the claim against ship B can only be made for that ship’s proportion of blame for the collision. Therefore, the cargo on ship A can only recover 30 per cent of its loss from ship B and is unable, because of the

’error in navigation’ defence, to recover the remaining 70 per cent from ship A.

The position may be different if the owners of the cargo on ship A are able to prove that the loss or damage was caused by the failure of ship A as carrier to exercise due diligence to make the ship seaworthy before and at the commencement of the voyage (e.g. due to the incompetence of the officers and navigators) since, in such circumstances, the carrier may not be able to rely on this defence.²³ Similarly, if

20 Article 2. One example might be a collision on the high seas that results in the sinking of both ships with all hands in circumstances in which it is not possible to establish the cause of the collision.

21 For example, when two ships at anchor break loose and collide as a result of a tsunami.

22 The position is different under uS law pursuant to the ’innocent cargo rule’ that is considered in Chapter 6.3.2.1 below.

23 For more detailed commentary see Chapter 3.2.9.2.1(Cargo Claims).

the contract of carriage is governed by the Hamburg Rules or the Rotterdam Rules (if and when in force) or by domestic rules of law based on those Rules, the error in navigation defence is not available, in which case, the cargo on ship A may be able to recover 100 per cent of its loss from ship A which would then include such payments as part of its claim against the other ship, and recover from ship B 30 per cent of the claim pursuant to the proportional fault rule.

The carrier may also be entitled to limit his liability for claims brought by the cargo that is carried on his ship pursuant to the Hague, Hague-Visby or Hamburg Rules or domestic rules of law (whichever may apply to the contract of carriage)²⁴ and/or pursuant to any relevant global limitation convention.²⁵

Therefore, a cargo claimant will normally have to consider the terms of the relevant contract of carriage carefully before deciding how best to pursue his claim.

6.3.1.2 Liability in Respect of Death or Personal Injury²⁶

Where a collision causes personal injury or death, each ship is jointly and severally liable in full for such claims without prejudice to the right of a vessel that has paid more than its proven proportion of blame to recover contribution from the other vessel or vessels at fault according to the proportion of blame that can be attributed to the other ship. This principle is enshrined in Article 4 of the 1910 Collision Convention and also applies in the uSA.²⁷

However, for similar reasons to those discussed in Chapter 6.3.1.1 in relation to cargo, it is necessary when considering such claims to draw a distinction between claims that affect passengers that are carried on board pursuant to a contract (e.g. passengers on a ferry or a cruise liner) and claims that affect other personnel (e.g. crew members, stevedores, repairers etc.) whether or not they are carried on board.²⁸

liability for causing death or personal injury to a passenger that is carried pursuant to a contract is governed by the Athens Convention on the Carriage of Passengers and their luggage by Sea 1974 (The Athens Convention),²⁹ Article 1.4 of which defines a passenger as:

24 For more detailed commentary see section Chapter 3.2.9.4 (Cargo Claims).

25 The Hague, Hague-Visby and Hamburg Rules all provide that the package limitation rules contained therein do not prevent the carrier form also relying on global limitation rights should this be necessary.

26 For more detailed commentary see Chapter 11 (People Claims).

27 See Chapter 6.3.2.

28 For more detailed commentary see Chapter 16 of the Gard Handbook on P&I Insurance and Chapters 11.2.2 and 11.2.3 (People Claims).

29 For more detailed commentary on the Athens Convention and the 2002 Protocol thereto see Chapter 11.3.2 (People Claims).

“… any person carried in a ship:

(a) under a contract of carriage; or

(b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods not covered by this Convention.”

Article 14 of the Athens Convention expressly provides that any passenger (or next of kin) who wishes to bring a claim against the carrier for personal injury or death must do so pursuant to the rules of the Convention and that such claims cannot be brought against the carrier on any other basis. However, the Athens Convention does not prevent such claims being brought against the non-carrying vessel if the negligence of the latter has caused or contributed to the collision.³⁰ Therefore, where the collision has been caused by the fault of both ships, the claimant has a choice and in making that choice the claimant may need to consider the following:

• Proving fault. Whereas it is necessary to prove fault if a claim is to be brought against the non-carrying vessel, a carrier is presumed to be at fault under Article 3 of the Athens Convention if the injury or death is caused by a collision incident;

• Jurisdiction. The jurisdiction for claims against the non-carrying ship may be uncertain whereas Article 17 of the Athens Convention gives the claimant a discretion to bring his claim against the carrier: (i) where the defendant is domiciled or carries on business, or (ii) where the contract was made, or (iii) in the country of departure or destination specified in the contract, or (iv) where the claimant is domiciled if the defendant carries on business in that country;

• Limitation of liability. Individual claims for personal injury and death are subject to limitation under the Athens Convention³¹ whereas this form of limitation does not apply to individual claims that are brought against the non-carrying ship.

However, the non-carrying ship may be entitled to limit liability in respect of such claims under whichever global limitation convention that may be applicable;³²

• Security. If security is required to support a claim against the non-carrying ship then it will be necessary to arrest or to threaten the arrest of that ship or a sister-ship to secure whatever funds the value of those sister-ships can provide. However, if a claim is brought against the carrier, then (following the entry into force of the 2002 Protocol to the Athens Convention) such claim may be brought directly against the provider of the guarantee for the carrier’s liability under the Convention, which in most circumstances will be the P&I club.³³

30 For a similar situation affecting cargo claims see Chapter 6.3.1.1 above.

31 This form of limitation is similar to the package limitation that applies to individual cargo claims under the Hague, Hague-Visby, Hamburg and Rotterdam Rules. See Chapter 3.2.9.4 (Cargo Claims).

32 See Chapter 6.5 below.

33 A similar form of guarantee (the so-called FMC Section 2 Guarantee) is provided pursuant to uS law in the case of ships that operate in the uSA.

However, should the claimant decide to bring his claims against the carrier, there is nothing to prevent the carrier from seeking recourse from the other colliding vessel in accordance with the principles outlined above.

6.3.1.3 Liability to Other Parties

The apportionment of liability under the 1910 Collision Convention is only binding as between the ships that are involved in the collision and the owners of the cargo or any other property that is on board the ships. Therefore, the convention does not restrict the traditional right of the owners of any other ship or property or any other personnel that have suffered loss or damage or injury as a result of the collision, to sue either of the colliding ships jointly or severally for its entire loss. For example, if ship A has been soiled by bunker oil that has escaped from ship B after ship B has been involved in a collision with ship C, ship A may claim a full recovery from either ship B, or from ship C, or from both ships provided that there is some degree of fault on the part of both ships.³⁴