Collision, Pollution, Salvage, General Average
By Dr. Arun Kasi
Last Updated 13th August 2021
Collisions at sea are regulated by the common law relating to the tort of negligence. A shipowner (or demise charterer) will be vicariously liable for the consequences of the negligence on part of the crew. A shipowner (or demise charterer) will be directly liable for the consequences of negligence committed at its management level. However, the shipowner (or demise charterer) will not be liable for the negligence committed by the independent contractors like stevedores, unless the independent contractor can be treated as the agent of the shipowner. For instance, the shipowner must ensure that the ship is seaworthy at the outset of the voyage. This is treated as a non-delegable duty. If the shipowner appoints a repairer to perform some repairs before the voyage and due to the negligence of the repairer the ship subsequently meets a collision, the shipowner may be liable for the negligence of the repairer (an independent contractor). This is because the concerned duty here is a non-delegable one and for that reason, the repair may be treated as an agent of the shipowner. In such a case, the liability taken by the shipowner is not a vicarious liability but the liability as the principal.
Convention on the International Regulations for Preventing Collisions at Sea 1972 (COLREGs) is an IMO convention that provides the rules to be observed by seamen on the sea. COLREGs has been ratified by about 160 jurisdictions. However, different jurisdictions have ratified different versions of COLREGs, which has been amended in 1981, 1987, 1989, 1993, 2001, 2007 and 2013.
The UK has given force to the COLREGs by the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996. Malaya has given force to it by the Merchant Shipping (Collision Regulations) Order 1984 (amended 2000). Colreg is divided into six parts (A through F) containing 41 rules. In addition to that, there are four annexes. The six parts and annexes are these:
- Part A : General
- Part B : Steering and Sailing
- Part C : Lights and Shapes
- Part D : Sound and Light Signals
- Part E : Exemptions
- Part F : Verification of compliance with the provisions of the Convention
- Annex I – Positioning and technical details of lights and shapes
- Annex II – Additional signals for fishing vessels fishing in close proximity
- Annex III – Technical details of sounds signal appliances
- Annex IV – Distress signals, which lists the signals indicating distress and need of assistance
Some key matters in the COLREGs include lookout, safe speed, lights, light and sound signals, use of radar, navigation in restricted visibility/narrow channels, overtaking, crossing and head-on situations.
It must be observed that:
- COLREGs are rules for seamen to observe and the same is true of bylaws as to navigation.
- Breach of COLREGs does not automatically mean negligence.
- Compliance with COLREGs does not automatically no-negligence.
The agony of the moment can be a defence where a master responds to an immediate danger wrongly that results in a collision. Similarly, a defence can be available to a master where he reasonably decides to take a risk and ends up in a collision where he was put in a condition by the damaged vessel to take such risk. The burden of proving the damage is on the claimant. AIS records will be of assistance in determining the course and speed of the vessels involved in a collision.
The claimant in a collision action may be the owner of the damaged vessel, salvor and cargo interest who incurred a general average contribution. A demise charterer may be entitled to claim damages where it has suffered a loss. It is unlikely that a time charterer will be eligible to be a claimant. The general rule against the recovery of economic loss must be noted in this connection.
There have been cases where the courts have refused to allow a deduction from the claim amount on account of betterment enjoyed by the claimant vessel when repairing the damages caused by the respondent vessel. Damages for loss of use of the vessel may be claimed. The practice has been that to award 1% of the allowed claim sum for disruption to the business.
To claim damages there must be the causal link between the collision and the damage. Courts have widely construed causal link so that it is not broken in many cases. It was once thought that a tug is the servant of the tow, so that the liability of the tug will be passed on to the tow. However, it is clear now that this is not the law. A dumb barge may not be liable where the collision happened by fault only of tug and another ship. However, a vessel improperly on anchor or a dumb barge improperly moored can be liable in contributory negligence.
In collisions at sea, the liability of each of the ships at fault is limited to the proportion of its fault, i.e. the liability is several and not joint. This is true only insofar as a claim is made by a ship at fault. If a claim is made by a ship that is completely not at fault, then the innocent ship can claim the entire from any of the ships at fault on principles of joint liability. This is the effect of s 187 of the UK Merchant Shipping Act 1995. In Malaysia, s 1 of the now-repealed UK Maritime Conventions Act 1911 (materially similar to s 187 of the 1995 Act) will be largely imported by ss 3 and 5 of the Civil Law Act. The liability will be apportioned in the equal portion where the degree of fault cannot be ascertained.
The claim of the cargo on board a ship, her freight/hire/passage money and property on board against another ship at fault are treated in the same way as a ship making claim for purposes of s 187 of the 1995 Act/s 1 of the 1911 Act, so that the fault of the carrying ship will be attributed to the cargo, etc.
A shipowner is strictly liable (i.e. without any need for negligence on part of the ship) for the acts of compulsory pilots. This is the effect of the UK Pilotage Act 1987. In Malaysia, the now-repealed UK 1913 Act (materially similar to the 1987 Act) will be largely imported by ss 3 and 5 of the CLA 1956.
Similarly, the liability is strict when damage is done by a ship to harbour, dock, or pier, or the quays or works connected therewith. This is the effect of s 74 of the UK Harbour Docks and Piers Clauses Act 1847, which is largely imported into Malaysia by ss 3 and 5 of the CLA 1956.
The time limitation in collision cases is two years only. However, the court may extend the time and in certain cases must extend the time. This is the effect of s 190 of the UK Merchant Shipping Act 1995. There is a similar provision in Malaya in s 517 of the Merchant Shipping Ordinance 1952.
Tonnage limitation will limit the liability of the shipowner. This has been dealt with in Dr. Arun Kasi’s works on admiralty. When ships involved in a collision are contributorily liable to one another, there is only one net liability, i.e. in the net, who must pay whom. The tonnage limitation will work on this net amount.
There are some limitations to in personam actions in collision cases, which has been dealt with in Dr. Arun Kasi’s works on admiralty. These limitations are from s 22 of the UK Senior Courts Act 1981, which applies in Malaysia by s 24 of the Courts of Judicature Act 1964.
It is not uncommon for parties in a collision case to enter into an arbitration agreement to resolve their disputes by arbitration. A common form used for this is the ASG Collision Arbitration Agreement, under which a single QC of the English Bar will hear and decide the case. If the parties cannot agree on the name of the QC, then the secretary of the ASG will make the appointment.
There will be preliminary acts to be filed in collision cases, dealt with in Dr. Arun Kasi’s works on admiralty. In England and Wales, it is now called Collision Statements of Case under the CPR.
The P&I Club of the respondent ship will usually pay for the damages caused to the claimant ship, while the H&M insurers of the claimant ship will pay for the damages caused to the claimant ship.
Compiled by Arun Kasi
Last Updated 4th May 2021
DOUGLAS SEA STATE SCALE and WMO CODE TABLE 3700
(SEA STATE/WAVE HEIGHT MEASUREMENT)
Douglas Sea State
(as adopted by the International Meteorological Organisation in 1929)
WMO Code Table 3700
BEAUFORT SCALE (WIND MEAUREMENT)
(as presently adopted by the UK Met Office – specs for observation added)
Mean Wind Speed
Limits of wind speed
Wind descriptive terms / specs for observation on board ship in open sea
Probable wave height
Probable maximum wave height
(Sea like a mirror)
(Ripples with the appearance of scales are formed, but without foam crests)
(Small wavelets, still short but more pronounced; crests have a glassy appearance and do not break)
(Large wavelets; crests begin to break; foam of glassy appearance; perhaps scattered white horses)
(Small waves, becoming longer; fairly frequent white horses)
(Moderate waves, taking a more pronounced long form; many white horses are formed [chance of some spray])
(Large waves begin to form; the white foam crests are more extensive everywhere (probably some spray])
(Sea heaps up and white foam from breaking waves begins to be blown in streaks along the direction of the wind)
(Moderately high waves of greater length; edges of crests begin to break into the spindrift; the foam is blown in well-marked streaks along the direction of the wind)
(High waves; dense streaks of foam along the direction of the wind; crests of waves begin to topple, tumble and roll over; spray may affect visibility)
(Very high waves with long overhanging crests; the resulting foam, in great patches, is blown in dense white streaks along the direction of the wind; on the whole, the surface of the sea takes a white appearance; the tumbling of the sea becomes heavy and shock-like; visibility affected)
(Exceptionally high waves (small and medium-sized ships might be for a time lost to view behind the waves); the sea is completely covered with long white patches of foam flying along the direction of the wind; everywhere the edges of the wave crests are blown into front; visibility affected)
(The air is filled with foam and spray; sea completely
white with driving spray; visibility very seriously affected)
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Disclaimer: While every effort has been taken to ensure the accuracy of the information freely provided online as of the date they were uploaded, no liability is accepted in the event of any inaccuracy. Readers are to independently ensure both their accuracy and currency. © Dr. Arun Kasi, 2020. All rights reserved