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The International Conventions & National Legislation on Collision of Ships

—Capt. Ashwani Jhingan

 

Ship collision is the structural physical impact between two ships or between a ship and a stable and fixed object such as port, or between a ship and a floating structure like an offshore drilling platform. The impact could be devastating and damaging to one or both. Collision damages make this peril transcendental for international law.

 

The technological advancements in the shipping industry and the growth in commerce compelled the maritime nations to work towards the development of an international standardised and homogeneous framework, which deals with the economical consequences of contingencies, such as collisions.

 

Historically and traditionally, the risk of collision between vessels has had a juridical reaction in three different ways:

 

1. A preventive reaction, gave birth to a system of rules (COLREGs) focused to prevent the risk of collision between vessels.

 

2. A civil reaction, translated into a law system (Brussels Conv.) with the function of guaranteeing the compensation of losses caused by a vessel at fault.

 

3. A punitive reaction, translated into criminal sanctions of certain conducts.

 

In Roman Law, the right to sue compensation for damages caused by a collision was based in the "actio legis Aquiliae" where the "claimant" had to prove the wrongfulness of the "defendant" in order to have the right of compensation. "Vis Mior" (superior force), Acts of God were considered to be circumstances of liability exoneration.

 

Concerted international efforts attempting to develop a uniform panorama of regulations cannot be found until the beginning of the 20th century.

 

The first effort of the International Maritime Committee (CMI), established in 1897, in respect of the adoption of international conventions on maritime subjects was the "Convention for the Unification of certain Rules of Law with respect to Collision between Vessels (Brussels on September 23, 1910)".

 

This Brussels Convention is one of the oldest conventions in force in respect of maritime topics, the central aim of which is to define, in the case of a collision between vessels, who is responsible for the compensation of the caused damages and to what degree. The activities of the CMI on this topic were centered on the civil impact of collision between vessels.

 

Three general rules of legal liability are established by the Brussels Convention:

 

1. If a collision occurs that is accidental or of uncertain cause, the damages are borne by the party that suffers them;

 

2. If a collision occurs that is the fault of a party, the party at fault is liable for the damages that were caused; and

 

3. If a collision occurs that is the fault of more than one party, the parties at fault are liable in proportion to the faults, respectively, committed. (If it is not possible to determine the proportional fault, the liability is apportioned equally between the parties at fault.)

 

The implementation of these rules abolished any pre-existing legal presumptions as to which party bore fault in maritime collisions. In reality, the essence of the principle of collision liability has not changed too much over the years since the creation of this juridical institution.

 

Thus, the contemporary system of the Brussels Convention is based on the principle of "proved fault" (Article 3). Liability for damages caused by a collision is attached "… to the one which has committed the fault". As a consequence of this principle, the question of appropriate conduct, a conduct free of fault, became of crucial importance. This was the reason of the development of the International Regulations for Preventing Collision at Sea (COLREGs) by the IMO, which are an implementation of the regular procedures of shipping. Its latest version was done at London in 1972.

 

One of the concerns of the international maritime community has been the setting of regulations to prevent collisions at sea and sailing regulations (COLREGs) aimed at diminishing collision risks. In general it can be said that a vessel failing to comply with these regulations can be declared in fault by the respective court, and, therefore, liable for the collision. Nevertheless, in the actual case of a collision, they also help to clarify the question of who is responsible for the collision.

 

Later on, in 1987, the CMI developed a "complementary" system of "Lisbon Rules 1987". These Rules do not have the force of law and are not part of any international convention signed by state governments, but are intended rather as guidelines for judges, arbitrators, insurers, average adjusters and others concerned with evaluating and assessment of damages in a ship collision and to deal with the difficult matter in practice of the concrete scope of the compensation liability. They may also be chosen by the parties to a collision dispute, after it arises, to govern damage assessment.

 

There have been a series of international conventions and rules related to the collision of ships:

 

1. The International Convention for the Unification of Certain Rules of Law With Respect to Collision Between Vessels, Brussels, September 23, 1910, which entered into force on March 1, 1913.

 

2. The International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision, 1952, which entered into force on September 14, 1955.

 

3. The International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation, 1952, Brussels, May 10, 1952, which entered into force on November 20, 1955.

 

4. Convention on the International Regulations for Preventing Collision at Sea (COLREG), London, 1972, which entered into force on July 15, 1977.

 

5. International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction, Choice of Law, and Recognition and Enforcement of Judgments in Matters of Collision, Rio de Janeiro, September 1977.

 

6. Lisbon Rules, 1987.

 

Merchant Shipping Act, 1958 in India for collisions

 

Laws relating to collision of ships is subject matter of a number of international conventions and are connected to the norms evolved in international law with respect to safety of life at sea. In India, the MSA 1958 brings some of these norms into the national legal systems (which are more or less verbatim reproductions of international norms).

 

A bare perusal of the MSA itself would reveal the haphazard manner in which the provisions regarding collision lie scattered in the said statute, lacking coherence and clarity. Generally, the collision regulations have been incorporated in Chapter IX, X and XI-A of MSA 1958. A consolidated and updated MS Bill 2016 has been pending in Parliament for some time.

 

(To be continued)

 

 

(Article compiled and contributed by Capt. Jhingan, Chairman and Managing Director of Malaxar. He is also an Advocate of Bombay High Court. Capt. Jhingan can be contacted at legal@malaxar.com. Views expressed here are his own.)

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