1800 - NAVAL SAILING INSTRUCTIONS
1846 - Steam Navigation Act
Trinity House Rules
1848 - Admiralty Regulations on Lights
1911 - Maritime Conventions Act
1972 - International for the Prevention of Collisions at Sea (COLREGS 1972) by IMO
UK - Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1983
UK - Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1989
It first sets out an array of legal duties. All British ships and all foreign ships in British territorial waters are to obey the regulations, owners and masters being specifically so required. The duties are absolute and do not depend upon intention, recklessness or negligence. The effect is to make a breach of these rules a legal 'fault', clearly relevant in civil proceedings, despite the repeal of the statutory presumption. The removal of the 'statutory presumption' means that proof of a breach of the Collision Regulations no longer disposes of a case on its own force but it is still relevant to proof of negligence.
The 1894 Act provides for the recording of collisions by masters and owners.
There is also the duty to assist under section 422, whereby the master or person in charge of a vessel must stand by and render assistance to a vessel in collision so far as he can do so without danger to his own vessel, crew and passengers if any.
Also relevant is the Merchant Shipping (Safety Conventions) Act 1949, which imposes on the master a duty to respond to a distress signal, if he is able and unless the circumstances make such action unnecessary or unreasonable.
The Merchant Shipping Act 1979 confers a general power to make regulations for the survey of ships, and such surveys are in any event required by ship construction regulations.
Not all these duties are reinforced by criminal penalties and when they are, there is a variation in the strictness of the criminal liability.
Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1989 provides as follows:
1(a) Where any of these regulations is contravened, the owner of a vessel, the master and any person for the time being responsible for the conduct of the vessel shall each be guilty of an offense...
2.It shall be a defense for any person charged under these regulations to show that he took all reasonable precautions to avoid the commission of the offense.
The offense may be committed without proof of intention to break the regulations, or even recklessness towards the breach: the only defense is reasonable precautions.
The same act provides that in any case where a ship does not comply with the requirements of these Regulations, it shall be liable to be detained under section 692 of the 1984 act.
Application of the Regulations
The only purpose of having international regulations for the prevention of collisions at sea is to have the great bulk of the world's tonnage obeying the same rules.
COLREGS (Collision Regulations) declare themselves to cover all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels. But they can only be given effect to, as law, by provisions of the statutes of the states that have accepted them.
These regulations are extended to hovercrafts but they do not apply to rowing boats (not a 'ship' according to the definition), and to Crown ships.
Local binding rules override the international rules (e.g. harbor rules). Often these rules differ from the international meaning and when conflicts arise, the local rules are the legally binding ones.
The Collision Regulations declare exactly what must be done to respond to precisely defined risks.
But just as often, they are rather more general in their requirements.
Rule 2. Responsibility
(a) nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
(b) in construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.
Rule 3. Definition Rule
Defines vessels, sailing vessels, vessels under way (not at anchor), vessels not under command, vessels constrained by draught, vessels restricted in their ability to maneuver (operating cable layers, minesweepers, dredgers, vessels towing, vessels transferring cargo or passengers), restricted visibility.
Rule 5. Look-out
Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate to the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision which clearly includes radar watch.
Rule 6. Safe Speed
Every vessel 'at all times to proceed at 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'.
Rule 6 also addresses the question of visibility and radar (efficiency, limitations, range scale, small vessels, ice, fog, number and position of vessels detected).
Rule 7. Risk of Collision
(a) every vessel shall use all available means to determine if risk of collision exists.
(b) radars should be properly used (long range scanning and plotting).
(c) no assumptions to be made on scanty information.
i) risk of collision exists if the compass bearing of the approaching vessel does not change
ii) risk of collision exists if the compass bearing of the approaching vessel changes e.g. when approaching a very large vessel or a tow or a vessel at close range.
Rule 8. Action to avoid Collision
(a) any action shall be positive, made in ample time and with good seamanship.
(b) alterations of course and/or speed shall be large enough to be apparent to the other vessels.
(c) if there is sufficient sea-room, alteration of course should be effective.
(d) actions should result in passing at a safe distance.
(e) slow speed or stop or reverse are acceptable as actions to avoid collisions.
Rule 9. Narrow Channel Rule
All vessels to keep as far to the starboard side of a narrow channel or fairway as is safe and practicable and avoid anchoring.
The Regulations operate in many cases, by systems of precedence, the assign the 'right of way'.
Rule 10. Traffic Separation Schemes
Traffic Separation Schemes : involve legal obligation approved by IMO.
The essential idea is than an area of the ocean is reserved for navigation in one direction only. (Traffic Separation Line or Zone).
All vessels must navigate only parallel to that line and must leave it on the port hand.
(a) this rule applies to all ship and does not relieve any vessel of her obligation under any other Rule.
(b) vessels shall:
i) proceed in the appropriate traffic lane in the general direction for that lane,(c) avoid crossing traffic lanes and when obliged to do so do it at right angles,
ii) keep clear of Traffic Separation Line or Zone,
iii) join or leave a traffic lane at the termination of the lane and doing so at as small angle to the general direction of traffic flow as possible.
Applies only to sailing vessels.
Rule 13. Overtaking Vessel
Applies to all vessels and requires the overtaking vessel to keep out of the way of the vessel she is overtaking.
This rule is paramount: it applies 'notwithstanding anything contained in the Rules of ... Section I and II'.
Rule 14. Meeting Rule
Applies only to two power driven vessels and requires when approaching 'on reciprocal or nearly reciprocal courses' each to alter course to starboard so as to pass port-to-port.
Rule 15. Crossing Rule
Applies only to two power driven vessels and requires when crossing so as to avoid risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall avoid crossing ahead of the other vessel.
Rule 16. Action by give way vessel
The vessel must take early and substantial action to keep well clear.
Rule 17. Action by stand-on vessel
i) it shall keep her course and speed.(b) in a close quarters situation she shall take such action as will best aid to avoid collision.
ii) it may take action if the other vessel is not taking the appropriate action.
Courts treat these regulations as the distilled product of the standards of worldwide good seamanship.
Rule 18. Responsibilities between Vessels (Precedence Rule)
(a) a power driven vessel under way shall keep out of the way of:
i) a vessel not under command,(b) a sailing vessel under way shall keep out of the way of:
ii) a vessel restricted in her ability to maneuver,
iii) a vessel engaged in fishing,
iv) a sailing vessel,
i) a vessel not under command,(c) a fishing vessel under way shall keep out of the way of:
ii) a vessel restricted in her ability to maneuver,
iii) a vessel engaged in fishing,
i) a vessel not under command,(d) :
ii) a vessel restricted in her ability to maneuver,
i) any vessel other than a vessel not under command or a vessel restricted in her ability to maneuver shall, avoid impeding the safe passage of a vessel constrained by her draught, exhibiting the signals in rule 28.(e) a seaplane on the water shall, keep well clear of all vessels and avoid impeding their navigation. Where a risk of collision exists she shall comply with these Rules.
ii) a vessel constrained by her draught shall navigate with particular caution having full regard to her special condition.
This rule applies to 'vessels not in sight of one another when navigating in or near an area of restricted visibility. It requires a safe speed adapted to the prevailing circumstances and conditions of restricted visibility'.
When detecting a vessel visually, aurally or by radar, the observing vessel shall determine if a close-quarters situation or risk of collision exists and must take avoiding action.
When fog signals have been heard, a vessel shall reduce speed or if necessary stop.
Rules 20-31. Lights and Shapes
Vessels must display certain lights by night and shapes by day. The purpose is two-fold: first, the lights of a ship should indicate its position and its bearing; secondly, that lights by night and shapes by day should demonstrate any special facts about the vessel or the operation upon which it is engaged which are relevant to its navigation.
Rule 21 defines lights.
Rule 22 defines their required visibility which varies with the size of the vessel.
Rule 23 says that power driven vessels must display a masthead light, sidelights and sternlight.
These lights are designed to enable another vessel to see where a ship is, which is its direction, as well as showing whether it is a vessel to be crossed or overtaken and from which side it is being approached.
Specific lights must be used for:
Lights and shapes to be displayed in all weathers.
Vessels of 12 meters or more in length to carry a whistle and a bell, and, if over 100metres long, a gong as well.
Rule 34. Maneuvering and Warning Signals
These provide a series of whistle and light signals for the different maneuvers which may be authorized or required by the Rules.
There are signals for:
Special signals must be displayed by a vessel intending to overtake another and prescribed responses must be given.
Sets out the signals to be given 'in or near an area of restricted visibility whether by day or by night'.
The fog signals that are laid down vary with the type of vessel and the maneuver that is being undertaken at that time.
Rule 36. Attention Signal
There are signals to attract attention of the other vessel which must not be mistaken for any aid to navigation.
Rule 37. Distress Signals
There are 15 recognized signals for vessels requiring assistance (SOS). These must authorized by the master if serious and imminent danger exists and needs immediate assistance.
They are divided into three sections:
The general scheme of the rules of the road or steering Rules is to designate one vessel the 'stand on vessel', the other the 'give way'. Subject to this qualification, rules 16 and 17 apply.
Notices to Mariners
These are documents made available to those concerned with ships and navigation intended to bring matters of importance to their attention. They may contain warnings of contemporary obstructions, of forthcoming events, of changes to accepted systems of navigation, or they may be more 'regulatory' and long term in their effects.
Admiralty Notices to Mariners ('M' Notices) are in truth a sort of subordinate legislation.
Apart from the Admiralty, other bodies also issue Notices to Mariners:
The Trinity House undertook responsibilities for seamarks and lighthouses, and later pilotage.
Pilots and Pilotage
Subjects of interest:
Pilots offer professional advice to the master as to the navigation of his ship.
Lighthouses and other Aids to Navigation
Lighthouses, buoys, beacons, day marks and other aids to navigation have been placed around the coasts for the assistance of seafarers. The Trinity House took an active interest in such matters.
The Trinity House is responsible for England and Wales, the Commissioner of Irish Lights for Ireland and the Commissioner of Northern Lighthouses for Scotland.
Such power have also harbor authorities and local lighthouse authorities.
A general lighthouse authority has the management and supervision of all lighthouses, buoys, beacons, lightships, foghorns, sirens and other aids to navigation.
It is an offense willfully or negligently to injure, remove, alter or destroy any lighthouses, buoys, beacons. The penalty is a level 4 fine on the standard scale plus the cost of making good any damage.
Harbours, Docks and Piers
There is a public right of navigation in the sea and in tidal waters and there is a right to anchor or land upon the foreshore in the course of navigation and owners or occupiers of land adjoining the sea or tidal waters are entitled to access to the sea for the purpose of navigation.
The Crown has the right to create harbors.
Harbor authorities have powers to make by-laws (rules for regulating the use of a harbor).
The harbor master has authority to give directions related to the movement of ships, times of entry and exit, position and method of mooring, discharge and loading, dangerous goods , harbor maintenance (wreck removal).
Harbor masters have also authority to prohibit entry to vessels which constitute grave and imminent danger to the safety of any person or property, the environment or the harbor itself.
Shipowners are strictly liable to harbor authorities for any damage done by their vessel to the harbor, the quays or works connected therewith.
LEGAL ASPECTS OF COLLISION
The operation of ships, like the operation of land or air transport, can give rise to legal liabilities. The liabilities of carriers towards cargo-owners or passengers are essentially based on contract. In this case we are concerned with liabilities which arise outside contractual arrangements: liabilities in tort.
One of the most important heads of these liabilities is liability for damage done by a ship. Within that category, the most common example is liability for collisions between ships, but the applicable legal principles are far wider and cover other matters, for example, collisions with harbor installations, responsibility for pollution of several different kinds and liability for the costs of wreck-removal.
The public control of navigation, the Collision Regulations, have an important indirect effect upon liabilities, for they set the standard, but their primary purpose is to ensure the safe navigation of the seas. The civil law of tort comes into operation only after the event--when damage or loss is suffered. Here we are concerned with the proper compensation of injuries resulting from poor navigation rather than punishing or deterring that poor navigation itself.
"Damage done by a ship" will give rise to a maritime claim under the Supreme Court Act 1981 (s.20(2)(e)) which gives the right to arrest and proceed in rem. The maritime lien was said to be created by the collision itself. The lien gave the plaintiff the right to proceed in rem against the ship itself for compensation. The effect of that background upon the language of collision claims can often be misleading.
For example, if the Saucy Sue is navigated at night with inadequate look-out and collides with the Esmeralda Z. which is moored without lights, and both are damaged the result of the case is that Saucy and the Esmeralda Z. were both at fault, the latter being 60 per cent. to blame: the Esmeralda Z. could therefore recover only 40 per cent. of her loss from the Saucy Sue." In short, vessels are personified and treated as if they have their own life and legal existence, and if they take legal action, are held liable.
Liability for collisions is liability in tort. Liability in tort depends upon proof by the plaintiff of the commission of an identifiable civil wrong (or tort) by the defendant. The defendant must be shown to have broken a rule of civil law, to have failed to meet a legally required standard to have failed in a duty laid upon him by law. That failure must generally be shown to have caused loss or damage, of a type recognized as compensatable by the law, to a person who is legally entitled to make complaint .
There are several torts that might apply to maritime collision, but one, the tort of negligence is far more important than all the others.
Negligence may be described as a failure to take reasonable care to avoid reasonably foreseeable risks of injury or damage to persons or property (Donoghue v. Stevenson (1932)) This is not a precise formulation, but it helps to make the point that liability is not absolute, arising out of the simple causation of damage, but is based upon unreasonable behavior. Damage can be caused without liability in negligence or, indeed, without any legal liability to compensate at all.
To establish a claim in negligence one needs the following:
Vicarious Liabilities and Collision
The most obvious candidate as defendant in a collision case is the human being actually responsible for the mistake which brought about the damage: the master who gave the wrong command, the engineer who failed to maintain the steering-gear that broke down, the somnolent look-out.
The actual wrongdoer is, of course, responsible for his own wrongdoing. If sued, he would be personally liable for the damage caused.
Of course, it is rarely worth a plaintiff's while to sue the actual wrongdoer. The wrongdoer is very often an employed person, with insufficient funds to meet the claim and no insurance cover (although in that case the "stood by" the master and the damages were paid). Employers, on the other hand, are generally richer and usually insured. And the law permits actions against employers in such circumstances.
An employer is said to be vicariously liable for the torts of his employees while those employees are acting in the course of their employment.
Who is an employee? point that the question is in practice one which depends upon the facts of each case.
The traditional test was to ask whether or not the individual was subject to control by his employer, i.e. whether he took orders as to how his work was to be carried out. If he was not controlled in this way and had the right to make all the decisions he was an independent contractor.
Since that point was made and taken, the courts have not found it difficult to hold senior skilled staff-members to be employees for the purpose of vicarious liability, despite the fact that their skill and seniority took them out of the reach of everyday detailed control. Some judges have gone further and held employers liable for those who are "part of the organization" which the employer runs, or if the individual's position is "consistent with" his being an employee.
If these principles are applied to ships, it follows that a ship's company (master, officers and seamen) are all employees of the shipowner for the purposes of establishing vicarious liability. It is the owner, or some company or person who stands in the owner's shoes, who has the ultimate practical right to give orders, in whose organization such persons belong and who has a legal relationship with the crew that is consistent with employment.
In practice, these peculiarities of the pilot's professional status may make little difference. If his advice is clearly absurd (if, for example, he is incapacitated), then the master who takes it is clearly himself negligent. Similarly, the master is negligent if he rejects good advice. If the advice seems good but is not, and is accepted, then, the owners will be vicariously liable if it can be said that, at least for a short period, the pilot has been integrated into the ship's "organization." The case-law, however has rarely addressed the general question.
For our present purposes, the important question is whether the owner of a vessel receiving pilotage services might be vicariously liable to those damaged by the negligence of the pilot who is providing the services to his ship. It is not easy to answer.
The Pilotage Act 1987 section 16 reads:
The fact that a ship is being navigated in an area and in circumstances in which pilotage is compulsory for it shall not affect any liability of the owner or master of the ship for any loss or damage caused by the ship or by the manner in which it is navigated.
On general principles a shipowner may be liable, if the pilot can be seen to be acting as part of the crew. But that may be hard to prove. The change the wording also means that it is no longer the case that such a shipowner would not be able to make a negligent pilot liable for damage caused to another ship.
Single-ship companies and Management companies
Commonly, ships in a fleet will be owned by single-ship companies and the operation of the fleet will either be confided to a managing company within the group, or contracted out to an entirely independent firm.
"Internal" employment of the first type probably presents little practical difficulty: the courts will most likely approach the matter "factually" and hold the single-ship-owning corporation vicariously liable for its own ship's company despite their having service contracts with the related managing corporation. The ship-owning company is "employing'' them for its purpose of running its ship.
The ship's master is an employee for purposes of vicarious liability just like any other member of the ship's company. All are fellow-employees, employed (usually) by the owners. If negligence be shown to have occurred in the navigation or management of a given vessel, it will generally be the owners, as employers, who will be held liable to pay the damages.
This means that the actual wrongdoer, the seaman or officer to blame, is relieved of liability. They could be sued as well but that is usually quite impracticable.
If a salvor is negligent while rendering salvage services and causes damage to the vessel he is assisting, he is liable to the owners of that vessel. If by negligence he causes damage to a third party, he is in principle liable to that third party. Is the beneficiary of salvage services vicariously liable to third parties for damage caused by a negligent salvor? In most cases, the answer is "no." A voluntary salvor who offers services for reward only if successful, "no cure, no pay, is hardly likely to be under the legal control of the owners. He can decide what to do and how to do it, both in fact and in law. He is an independent contractor and the owner is not vicariously liable for his negligence.
There may be those who offer services in the nature of salvage on lump-sum or other fixed terms. Such persons may well be treated as employees for the purpose of vicarious liability so that the shipowner will be liable for any of their negligence that damages third parties.
There are many varieties of towage. A vessel may "pass a line'' to another in distress. A large vessel may need the assistance of a tug in confined waters. Barges, vessels not under command, oil rigs, floating structures. large and small, of many descriptions. are moved by tugs. When a collision occurs which involves vessels or structures under tow, the immediate question is raised, whether the owners of the towed vessel or the tug owners are to be held vicariously responsible for the negligence that might have taken place either aboard the tug. or aboard the tow or in both places.
United Kingdom Standard Towage Conditions (1983) states in cl.3 (repeating similar statements in earlier editions) that "the master and crew of the tug . . . shall be deemed to be the servants of the Hirer and under the control of the Hirer . . . and the Hirer shall accordingly be vicariously liable for any act or omission by any such person..."
This, however, cannot be a universal rule. The facts may simply be different. When a tug tows a rake of dumb barges, for example, the navigational control of the operation lies aboard the tug, not the barges. Each case must depend upon its particular circumstances. More importantly, it is a basic rule of the law of contract ("privity of contract") that the terms of a contract are binding only upon the parties to the contract. Thus the inclusion in a towage contract of words such as those that appear in clause 3 of the United Kingdom Standard Towage Conditions cannot directly affect third parties outside the contract.
Negligence during towage is therefore best approached by firstly establishing whether there was negligence which contributed the loss aboard either vessel and then by asking whether, in respect of that particular matter, practical control lay aboard the tow or aboard the tug. The inquiry may be complex.
Joint and Several Tortfeasors
In many collision cases there is more than one person who is negligent and who, therefore, can be held liable. The legal position begins by distinguishing between joint and several tortfeasors. Joint tortfeasors are both liable for the same tort. Where two or more defendants are joint tortfeasors, they are technically described as several tortfeasors. "Several" is antique term meaning "separate" or "severable." Several tortfeasors may be several concurrent tortfeasors. If two or more persons commit separate acts of negligence, and these acts combine to cause one indistinguishable item of loss to the plaintiff, the defendants are concurrent tortfeasors. They are no concurrent tortfeasors if their separate acts of negligence produce separate distinguishable losses. Most collision cases involve concurrent tortfeasors.
Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage.
A person is negligent who fails to observe the standard of care which would in all the circumstances be regarded as reasonable. This cannot be precise, the law would lose its purpose if it were to be so. Liability must depend upon accepted standards of behavior and these must be expressed in general, flexible terms. In maritime cases, one often comes across terms such as "good seaman-like behavior." This does not advance the matter much.
A defendant is liable if he, or someone for whom he is vicariously liable, can be shown to the satisfaction of the court to have acted with less than reasonable care.
In shipping cases, such lack of reasonable care may manifest itself in a variety of ways. It may lie in bad navigation, poor look-out, matters intimately concerned with the day-to-day running of the vessel. It may lie in defective maintenance , incompetent loading or faults in construction, matters which may have occurred months or years before the casualty. It may lie in poor management, for example, failure to man the vessel properly, to equip her with charts, to arrange for training, the provision of information the organization of maintenance and control of risks. It may also be a combination. The breach of some binding regulation will almost always amount to negligence. In many cases the regulation will itself be cast in terms of "reasonableness," so as to make it and negligence virtually indistinguishable. But not always. It is at least theoretically possible for a court to decide that in all the circumstances it was reasonable for the particular requirements of a rule to be disregarded. But a finding that there was a breach and that that breach constitutes a fault says nothing about the causative value of that breach (how far, if at all, the breach contributed to the loss suffered) or to its relative value for the purpose of division of loss. Nor does such a finding settle any question of burden of proof.
Burden of Proof
In general, in a civil claim, the plaintiff must prove, "on the balance of probabilities," all the elements of the tort, i.e. breach of duty, causation and loss. "He who alleges must prove.
Some accidents are such that it can be said that in all common sense , i.e. could not have happened without someone being at fault, it is for the person who looks likely to have been at fault to come forward with an explanation. The legal application of this common-sense observation is provided for in a rule that where the events are within the control of the defendants and the occurrence is of a kind that does not usually happen without negligence on the part of those in control the burden lies on the defendant to prove that on this occasion it did happen without his negligence. The classic defendant's negligence. The plaintiff must show what sort of negligence is to be under review.
In order to activate the maxim, then, a plaintiff must make a prima facie case of negligence against the defendant. Something must be placed before the court to convince it that the defendant has something to explain.
Inevitable Accident and the Agony of the Moment
The standard of care is a reasonable one. It follows that some shipping casualties occur without negligence. Non-negligent accident when it occurs, is often the result of extremes occurrences: weather or of unexpected mechanical failure. Such cases are sometimes called cases of "inevitable accident." The principle is that there can be no liability if the exercise of reasonable care could not have guarded against the eventuality.
The converse point is that there will be liability if, on close inspection, it turns out that reasonable care might have avoided the accident. Thus, the issue of inevitable accident may only be preliminary to a deeper search.
Where circumstances press and the wrong decision is taken the agony of the moment " it will not be accounted negligence. The circumstances of The'Bywell Castle were extraordinary and subsequent decisions have shown how hard it is to prove the necessary facts for the principle to apply. In particular, the vessel in which the "agony of the moment" occurred must not have contributed, through her fault, in any way to the circumstances which caused the "agony." If it had, the mistake is not excused and there must be division of loss (see The Winona (1944)).
Most commonly, a decision will have been taken in the full knowledge of the risks involved which risks come to pass. There is then loss or damage which has quite clearly been contemplated and which obviously derives from a decision taken by one of the participants. A vessel crosses ahead of another, for example, calculating that the relative speed of the two vessels will be such as to avoid a collision: the other vessel unexpectedly increases speed or changes course. There may yet be no negligence if the decision was fairly, reasonably and properly made.
Liability in negligence, as in most other torts, depends upon proving that loss or damage was caused to the plaintiff by the tort for which the defendant is to be held responsible. As a preliminary point of particular application in maritime cases, it is worth emphasizing that it is the damage or loss that is at issue not the collision.
Generally, however, causation problems arise because more than one event seems to have contributed to the damage or loss.
Sometimes those events can be seen as all contributing to the loss. If the different causative events are the responsibility of various parties to the action, then the court will apportion damages, on the basis of causation as well as comparative blameworthiness, under the Maritime Conventions Act. Such events may be quite distant from the damage or loss.
Chains of causation do not, however, stretch to infinity. At some point, the court will hold that the original negligence is no longer responsible for the damage. In a general sense, events lose their causative significance simply through lapse of time.
More practical difficulty occurs where the alleged "intervening act" is an act of negligence by one of the parties. One obvious solution is to apportion damages under the Maritime Conventions Act, holding that both acts of negligence contributed. But it is often strongly argued that the subsequent act of negligence 'broke the chain." This can only be said with any confidence when a clear choice has been made.
Both to Blame
"Where by the fault of two or more vessels, damage or loss is caused to one or more of those vessels to their cargoes or freight, or to any property on board, liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault. Provided that:
(a) if, having regard to all the circumstances of the case, it is not possible to establish the different degrees of fault, the liability shall be apportioned equally; and
(b) nothing in this section shall operate so as to render any vessel liable for any loss or damage to which her fault has not contributed; and
(c) nothing in this section shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability on any person from which he is exempted by any contract, or as affecting the right of any person to limit his liability in a manner provided by law."
Several points arise:
The Act speaks throughout of vessels being at fault. Property damage and personal injuries. The Act applies to damage to or loss of ship or cargo or other property aboard ships. It does not apply to damage to property not aboard ships. There, the Law Reform (Contributory Negligence) Act 1945 will apply to Cargo and "both-to-blame" clauses.
If two parties have claims against each other arising out of the same occurrence, then it makes sense, in practice, to deduct the lesser sum from the greater and order that the balance be paid.
Remoteness of Damages
Damages in tort are not recoverable for losses which are "too remote" from the tort. For many years, the rule of remoteness in negligence was thought to depend upon proof of direct physical causation between the negligent act and the resulting damage. All direct consequences, however bizarre, unexpected or unlikely, could be brought to the tortfeasor's account. However, that strict rule has been relaxed. It is now established that the proper test is reasonable foresight. A defendant is liable for those consequences which might reasonably have been foreseen as likely to ensue from the tortious act.
Types of Losses
In one sense, all losses are financial. If a shipowner loses his ship, he should receive damages which fairly represent its value, that is, what it represents to him as an investment. How that reasonably expected financial losses consequent upon physical damage are recoverable. That is partly a matter of remoteness but also a simple question of causation. If the loss of a ship causes unexpectedly high financial loss, that may well be the result of the owner's peculiar financial position, not the defendant's action in sinking the ship.
So, it would seem to follow that the loss expected by a shipowner from future charterparties will rarely be recoverable, although the pront on a current engagement may be. Even disregarding the loss of specific on-chartering arrange
The discussion above has been about the application of the tort of negligence to shipping claims. There are other torts. Trespass is liability for direct interference with property. Nuisance is liability for interference with the ordinary use and enjoyment of other persons' property.
They all impose "strict" liabilities. The most likely maritime application of such torts is in the field of pollution.
Systems of limitation of Liability
Systems of limitation exist in all maritime nations. The justification is simple, namely, that a shipowner should not be required to risk liability greater than the capital put at risk by the maritime adventure. The same need is recognized in single-ship companies and complex corporate structures designed to isolate and limit the assets associated with particular vessels or ventures.
The Convention on Limitation of Liability for Maritime Claims (London 1976) came into force in the United Kingdom, defined claims that might be limited as claims for loss of life or personal injury, or loss of or damage to certain property based upon a fault in the navigation, management or loading of a ship, or based on the fault of some person on board.
The following claims, whatever the basis of liability may be, shall be subject to limitation of liability:
(a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbor works, basins and waterways and aids to navigation) occurring on board or in direct connection with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;
(b) claims in respect of loss resulting from the carriage by sea of cargo, passengers or their luggage,
(c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship or salvage operations;
(d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship
(e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;
(f) claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures."
Some claims are declared not to be limitable. These are set out in Article 3 of the Convention. They are: salvage and general average contributions; oil pollution claims for which special limitation provisions apply; nuclear damage claims, and crew claims exempted by the law governing their contract of employment. Such exemption is granted to crew members whose contracts are governed by English law (Merchant Shipping Act 1979, s.35(1))
This list is not, in fact, quite complete. Other groups have special limitation regimes. Pilots and pilotage authorities may limit liability (otherwise than as shipowners) under the Pilotage Act
Limitable claims may be based on any legal ground: contract, tort, or statutory entitlement. The Convention expressly says "whatever the basis of liability may be." However they must still precise and be based upon the circumstances mentioned in one of the heads: for example, they must relate to loss of life or damage to property under (a), must be non-contractual under (c), etc. Some claims will, therefore, not qualify.
Finally, there are two claims to which limitation does not apply because the shipowner is given a complete defense, these are fires aboard ship and undeclared valuables lost through theft (Merchant Shipping Act 1979, s.l8, replacing section 503 of the 1891 Merchant Shipping Act).
The 1976 Convention approaches this question, which in earlier law had caused considerable difficulty, with the deceptively simple phrase "shipowners and salvors" (Art. 1(1)). The first term is further defined as "owner charterer, manager and operator of a seagoing ship" (Art. l(: )). The right to limit is extended, in English law, to non-seagoing ships and to 'any structure, whether completed or in the course of completion) launched and intended for use in navigation as a ship, or part of a ship" (Merchant Shipping Act 1979, Sched. 4, Pt. II) and to hovercraft (s.48, Sched. 5, para. 4). In addition section 41 of the 1979 Act confers on the Secretary of State the 'power to declare by order that a "thing designed or adapted for use at sea" is a "ship" for any purposes connected with the Merchant Shipping Acts. The power has not yet been used. Even without these extensions, the further definition is very broad. "Charterer" must include not only demise charterer but voyage and time charterer.
Under the old law, the phrase which stood for "manager and operator" included the requirement that such a person be "interested in or in possession of a ship." The shorter formulation clearly covers management terms or corporations who may easily incur liabilities "in connection with the "operation formulation clearly covers management terms or corporations who may easily incur liabilities" in connection with the operation of the ship " but who have no legally defined interest or possession. Insurers, who may be liable in some jurisdictions on
"If any claims ... are made against any person for whose act, neglect or default the shipowner or salvor is responsible such person shall be entitled to avail himself of . . . limitation of liability . . .
Anyone for whom anyone else is vicariously liable can stand in his employer's shoes for limitation purposes.
Salvors are treated specially.
The new limits are higher are based upon a sliding scale designed more closely to reflect the values of modern ships of different types, and are linked to the Standard Drawing Right of the International Monetary Fund (the SDR), rather than the Gold Franc. SDRs are based upon an international "basket" of leading currencies and value are declared daily. On the day that this section was written the SDR stood at f0.715238.
As has been the case in the United Kingdom since the 1850s there are two funds. One is to meet claims for loss of life and personal injury. Should that fund be exhausted, the balance of those claims are considered with the claims for property-damage .That applies to all ships built after 1982 and to the older ships after 1994. The "limitation tonnage" for the 197 Convention will be the "new" GRT, which figure will appear in the Register Rook, a public document.
Under the 1957 Convention, and earlier regimes, the right to limit was lost unless the shipowner claiming limitation could demonstrate that the loss had occurred ''without his actual fault or privity".
The 1976 Convention instead allows the shipowner to "break limitation" it by proving that "the loss resulted from his act or omission committed with intention person knowledge that such cause such loss, or recklessly would probably result".
The new law requires a "personal act or omission." No act by delegate would seem to be relevant. Further, the sort managerial fault found in the cases mentioned above (which is by far the most common type of "fault" alleged in limitation proceedings will have to show a clear event, something done not done, rather than a system which did not work very well..
Instead, the 1976 Convention has introduced the requirement that it be proved that the act or omission was done either "with intent to cause such loss" (which will be a very rare case indeed or "recklessly and with knowledge that such loss would probably result." These are high hurdles indeed
Limitation Act 1980 lays down general limits of six years for contract claims, running from the breach of contract, and seven years for tort claims, running (usually) from the date of the damage. But as in pollution, salvage and carriage of goods and passengers, there is a special short limitation period for collision claims of two years from the date the damage was caused.