Choice of Jurisdiction
The 1952 International Convention for the Unification of Certain Rules relating to Civil Jurisdiction in Matters of Collision only permits a court to accept jurisdiction in three situations: where the defendant has his habitual residence or a place of business in that State; where the collision takes place in the internal waters of that State; and where the ship or a sister ship has been arrested or could have been arrested but bail or other security has been provided.
This restriction permits an unseemly amount of manoeuvring by the parties to establish a jurisdiction which favours their case. This will require the appraisal of a range of factors, the most important of which is whether the ship for whom the lawyer is acting is likely to be the recovering or the paying party in the litigation. If the former, then the most desirable jurisdiction will be one in which a fair and objective judgment can be obtained as quickly as reasonably possible which will be such as can be enforced without undue procedural delays. The latter case would require a jurisdiction where the courts are not likely to be swayed by the large sums involved and where the principles of limitation of liability will be applied effectively.
Such an appraisal will require an informed estimate both as to the probable division of blame between the two ships and also of the likely amount of the damages ultimately recoverable. Neither of these will be available in the immediate aftermath of the collision, and the practitioner is therefore obliged to carry out continuous reappraisal of both as further information comes in from surveyors, shipowners and other parties involved in the litigation.
To avoid the jurisdictional conflict in practice jurisdiction is usually established by agreement.
Principles of Liability for Collision
- The International Regulation for Preventing Collisions at Sea: The duty of good seamanship requires compliance with the applicable navigational rules. These are set by governments and may vary between areas. The standards imposed in international navigation are based on the 1972 IMO COLREGs Convention. They form the basis for conduct to avoid collision between ships, and, where they are not observed, i.e. a collision takes place, for the assessment of blame for the collision.
The cardinal principle is that ships “drive on the right” – when two ships are approaching each other in a narrow channel, or on opposite courses, they must pass port to port, keeping to the starboard side of mid channel (Rule 9) and must alter course to starboard when approaching end- on (Rule 14). In a crossing situation the ship which has the other on her starboard side must give way (Rule 15).
- Claims by the owners of cargo damaged or delayed by collision: Cargo damaged as a result of a collision leads to the possibility of claims against the two colliding vessels:
- A claim in tort against the non- carrying vessel, which should lead to recovery of that proportion of the claim which is equivalent to the proportion of blame falling on that ship;
- A claim in contract against the carrying vessel. Such a claim may well be met with the defence of negligence in the navigation of the vessel under Article IV Rule 2(a) of the Hague and Hague–Visby Rules, unless the collision resulted from the incompetence of a watch- keeping officer amounting to unseaworthiness, or from a failure of the ship’s equipment which itself rendered the ship unseaworthy.
Remoteness and Causation
If negligence is found by the Court on the part of the crew of a colliding vessel, it will only be taken into consideration in the assessment of the division of blame if it is causative of the collision. Any negligence which is found by the court to be non- causative will be left out of the reckoning.
In the assessment of blame the Court will also take into account the “agony of the moment”. If a wrongdoing ship causes another vessel to take urgent manoeuvres in order to avoid collision, those manoeuvres may not be judged too harshly.
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