2.0 International Perspective:CollisionInternationalMaritime Committee (CMI) is the oldest international organization in themaritime field whereby the international conventions on maritime subjects thatwas internationally approved is “Convention for the Unification of CertainRules of Law with respect to Collision between Vessels” or known as BrusselsCollision Convention. This convention was established in respect of legalliability pertaining to the collisions between ships at sea and to determinewho is responsible for the compensation and to what degree. In 1987, CMIdeveloped a complementary system of rules which is known as Lisbon Rules 1997.
Thisrule is not concern about an international convention signed by the state governmentbut about rules that can be adopted by the involved parties after a collisionwhich is known as the Lisbon Rules 19971. Anothercomplementary rule that was adopted is the “International Regulations forPreventing Collision at Sea, 1972” (COLREGs). The COLREGs 1972 has implementedregular procedures of shipping which if a vessel failing to comply with theseregulation can be declared in fault by the respective court and there be liablefor the collision. These rules become a good example in preventing the risk ofcollision between vessels whereby in the actual case of a collision, they helpto clarify the question of who is responsible for the collision. This legalsystem is mainly contained in the Brussels’ Convention from 1910 and in someother complementary international documents such as COLREGs and Lisbon Rules2. 2.
1 The Application of the Conventionand its Complementary RulesCollisionliability can defined as the legal obligation of compensation for damagesarising out of a collision between vessels. Brussels’ Convention applies inwhatever waters the collision takes place between sea-going vessels andsea-going vessels and vessels of inland navigation belonging to the High ContractingParties, with the exception of vessels belonging to the same State, when thenational law is applicable.3 Thismeans that sea-going vessels and vessels of inland navigation do not includemaritime objects such as off-shore platforms, buoys, docks under Article 11 warand Government ships also not subjected to this Convention4.
Inrespect of damages to persons or things other than vessels, the compensation ofdamages is not only limited to vessels but is extended to damages to thingsother than the vessels and persons as well on a condition that such things and persons are on board at the moment ofthe collision5.2.2 The Concept and General Rulesof Brussels’ ConventionThecentral concept of liability under this Convention is based on the “provedfault” principle6.This means that if the collision is caused by the fault of one of the vessels,the liability attached to the party at fault to make good the damages7. However,according to Article 2, if the collision is accidental and if it caused by “force majeure” or if the cause of collisionis left in doubt, the damages are born by those who have suffered them. “Force majeure” is used a defence to free parties from liability orobligation when extraordinary event or circumstances beyond the control of theparties occurs such as war, strike or Act of God.
Inthe case where the cause of collision left in doubt is best illustrated in thecase of Merchant Prince8,a vessel had collided with anchored vessels as a result of the failure of hersteering gear. The cause of the failure and its latency could not be established.Thus, the Court of Appeal held that so long as the cause of accident wasunknown, then the defendants were unable to claim that it was inevitable or unavoidable.Incontrast, in the case which involving the cause of “force majeure”, the defence of Act of God or inevitable accidentwas accepted in the case of Gleehong HarbourTrust Commissioners v.
Gibbs Bright & Co9.In this case, the vessel was properly moored when she was driven off hermoorings by a sudden strong squall. She subsequently collided with a beaconowned by the Harbour.
The plaintiff claimed damages but the defendants deniedthe liability on the ground of Act of God and inevitable accident. Next,under Article 4, if the collision occurs due to the fault of two or morevessels, the vessels at fault are liable in proportion to the faultsrespectively committed. Nevertheless, if it is not possible to determine the degreeof respective fault or if it appears that the faults are equal, the liabilityis apportioned equally between the parties at fault10. Thecourt must apportion the blame in equal degrees. As in the case of The Sedulity11,Willmer J described that “the words ‘equally to blame’ do not mean that bothtortfeasors must necessarily be found to blame in equal degree but must in equalin the sense that the faults of each must be held to be contributory in somedegree”. Example of case where both of parties are at fault can be found in Golden Mistra12,whereby the Golden Mistral was not exhibiting an anchor light at the time ofthe collision.
However, the other vessel was also at fault whereby she should haveseen her much earlier than she was seen.Hence,proof of fault is important for any action in claiming liability and suchburden shall be on the claimant. Practically, the proving of such fault therewill be some serious complications and such complications are to be cleared upby referring to COLREGs that was signed in London in 1972. For this, COLREGsstipulates regular procedures of shipping and sets the minimum safety equipmentfor a vessel such as lights, signal, etc.
in order to guarantee safenavigation. Failure to comply with these rules is considered as fault and willbe the liability. 2.
3 The Time Bar for the Recoveryof DamagesForthe claim of collision under Brussels’ Convention, Article 7 provides about thetime bar for the recovery of damages. Under this, actions for the recovery ofdamages are barred after an interval of two years from the date of thecasualty. The period within which an action must be instituted for enforcingthe right to obtain contribution permitted by paragraph 4 of Article 4 is oneyear from the date of payment. The grounds upon which the said periods oflimitation may be suspended or interrupted are determined by the law of thecourt where the case is tried. The High Contracting Parties reserve to themselves the right toprovide, by legislation in their respective countries, that the said periodsshall be extended in cases where it has not been possible to arrest thedefendant vessel in the territorial waters of the State in which the plaintiffhas his domicile or principal place of business.
2.4 Jurisdiction in the Case ofCollisionInrespect of jurisdiction, it is important to know that there are severalinternational conventions which deal with the jurisdiction in a collision suchas International Convention Relating to the Arrest of Sea-Going Ships 1952,International Convention on Certain Rules Concerning Civil Jurisdiction inMatters of Collision 1952, Rhine Navigation Convention 1868, Convention onJurisdiction and the Enforcement of Judgments in Civil and Commercial Matters1968, Convention on Jurisdiction and the Enforcement of Judgments in Civil andCommercial Matters 1988 as well the Council Regulation (EC) No. 44/2001. TheseConventions must be put into consideration with regard to the collision claimsand jurisdiction. To the extent that they apply, these provisions must be takeninto account in deciding whether proceeding should be commenced in personam orin rem.
Both options are available under English law whereby jurisdiction maybe determined based on the Supreme Court Act 1981. Withregard to the claim in personam, Section 22(2) provides that the court may onlyexercise jurisdiction based on these situations such as the defendant had hishabitual place of residence or business within England or Wales or the cause ofaction arose within territorial waters or the defendant is willing to submit toEnglish jurisdiction or an action arising out of the same incident is or has inthe past been dealt with the High Court. Additionally, according to subsection(3) an action in relation to this incident if the matter has been brought in acourt in another country the English courts cannot hear the matter until theforeign proceedings have been discontinued or have otherwise come to an end. Onthe other hand, for the claim in rem such restriction under Section 22 will notbe applicable. An action in rem may be brought either against the ship in connectionwhich the claim arose must be subjected to two condition. First thing that mustbe put into consideration is respect of collision, to commence a proceeding inrem the ship which is the subject of the proceeding must be present within thejurisdiction of the High Court at some stage during the period of validity ofthe Claim Form which is within six months. 1 CollisionLiability2 CollisionLiability3 Article 1of Brussels’ Convention4 CollisionLiability5 Article1, 4 and 13 of Brussels’ Convention6Limitation of Liability in Maritime Accident: The Philippine Experience7 Article 38 1892P. 1799 19741 LMCMQ 90, 9110Collision: A Legal Analysis11 19561 Ll.
Rep. 51012 19861 Ll. Rep.