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Establishment of a duty of care in collision at sea

Discuss About The International Convention On Civil Liability For Oil.

As the collision has taken place at a UK port UK law would be applicable. The law of negligence is applied in relation to a collision at sea rather in the same way it is applied on any accidents at road. The initial problem in this situation is the establishment of a duty of care. However the problem can be appropriately addresses through the application of the neighbour principle which has been provided through the provisions of the case of Donoghue v. Stevenson [1932] UKHL 100[1]. The case established three elements to establish negligence which are Duty of care, Breach of Duty and loss.

The issue in this case is to determine the rights and liabilities of Andros, Samos and Paros Limited.   In admiralty law collision proceedings are different from other form of proceedings. A statement which is known as a ‘preliminary act’ is provided initially by the parties to a collision containing a collision statement of case.  Various questions in relation to the collision are contained in the statement which includes, weather conditions, course steered, details of the ships involved and the angle of contact. It has been provided through Rule 61.4(5) of Part 61 of the CPR that all parties which are involved in the collision have to file a completed statement of the case within two months since a acknowledgement of services have been filed by the defendant[2]. The admissions of facts will be constituted of the answers which are present in the statement of case.

It had been stated by the court in the case of The Mineral Transporter and the Ibaraki Maru [1986] AC 1 that a demise charter and a registered owner generally have the right to sue in relation to collision damages at sea rather than other charterers. [3]

The negligence of the crew would be binding on the owner of the ship as per the rules of vicarious liability. In the case of The Druid (1842) 1 W Rob 391 it had been ruled by the court that it would be the responsibility of the ship owner in relation to the acts or omission of the crew unless the crew acted outside the course of employment[4]. In case the act has been done by a person who is not a crew, it has to be considered that whether the person was a servant or an independent contractor[5].

Assessing the rights and liabilities of parties involved

The actions of the persons who are involved in the navigation of the seas is analyzed by making a comparison to a reasonable seamanship as a question of fact. The extent to which reference has been made to the collision regulation (Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996) is also important to determining compliance.

It has been stated  by the regulations that a failure on the part of a person to act in accordance with the collisions regulations does not primarily mean that the guilty party would be party to a civil claim. Any action which has been taken in compliance of good seamanship standard will not make a breach as per rule 2 of the regulations[6]. Causation has to be established in the given situation for the breach.  It has been stated by rule 5 that it is the responsibility of all vessels to maintain a proper look out by hearing and sight[7]. Further rule 6 states that vessels should always maintain a safer speed (the speed has not been articulated)[8].

Provisions are also provided by the regulations in situation where the vessels are in view of each other. For instance it is the duty of an overtaking ship to stay out of the way of a ship which is overtaken by it. In the case of The Bywell Castle (1879) 4 PD 219 it had been stated by the court that a ship owner whose crews have not met the standards of  a product seamanship has the right to exonerate itself where it can be seen that the failure is a result of agony of the moment[9]. In this case Princes Alice without warning and suddenly turned sharp to port towards The Bywell Castle which instead of turning away turned into her. In this case The Bywell Castle, was exempted from liability under the provisions.

Another rule which is used in case of determining negligence is the “last opportunity rule”. However the rule is determined not to be applicable as the nature of negligence of colliding ships is very interwining as per the case of The Volute [1922] 1 AC 129[10].

Even where breach of the defendant has been established by the plaintiff, it has to be established that the loss caused to the plaintiff was the result of the breach made by the defendant. This means that the loss must have not taken place if there was no breach. Where there is a successful attempt by the plaintiff in relation to the loss the defendant has the right to show that the causation had been interrupted by some intervening event known as “a novus actus interveniens.”

Application of principles of negligence and vicarious liability

These provisions had been discussed in the case of The Oropesa (1940) 68 Ll. L. Rep. 21. In this case the collision was a result of fault on part of both the vessels. In order to discuss salvage with the other master, the master of one of the vessels took out a boat. Lives were lost as the boats overturned. In this case it had been held by the court that the actions of the master was reasonable in relation to taking out the boat and did not result in novus actus interveniens thus there was unbroken chain of chain of causation as lives were lost due to overturning of the boat[11].

Further it has been stated in the case of The Zaglebie Dabrowskie (No. 2) (1978) 1 Lloyds Rep. 573 that there was an unbroken chain of causation when the vessel sank three hours after the collision. It had been argued in the situation that the master had the opportunity to save the vessel. However the court held that the hole in the vessel was large and it was not possible for the master to do so[12].

In the given situation the facts provided by the case study states that there has been a collision between Carbs whose owner is Andros Limited and Loms whose owner is Samos Limited. Carbs is a 25,000 GT M/V which is used regularly for the purpose of transporting oil from a oversees supplier to the refinery of its owner at Avonmouth. The collision took place when Carbs was approaching the entrance of Avonmouth and collided with Loms.

It has been provided by initial reports that there had been an attempt made by Loms to overtake Carbs  which was in a restricted lane where it has been strictly prohibited by a local bi-law that in any situation overtaking is prohibited. Loms while completing its manoeuvre without providing a warning turned to the port. In the given circumstances the master of carbs as he was panic stricken turned to starboard which caused a collision and injured both the vessels.


The claim which can be made in the given situation will be a claim in person as here the court have jurisdiction over the defendant in personal capacity.

In the given situation the law as provided by the case of Donoghue v Stevenson needs to be applied in order to determine the rights and liabilities of the parties involved in the situation. It has been provided in this case that there must be a duty of care which has been breached and because of the breach the harm or injury has been resulted.

Determining compliance with good seamanship standards

Through the application of the case of The Mineral Transporter and the Ibaraki Maru where it had been stated that a registered owner generally have the right to sue in relation to collision damages at sea rather than other charterers thus Andros have the right to sue Samos in relation to a claim for negligence.

The negligence of the crew would be binding on the owner of the ship as per the rules of vicarious liability as stated by the case of The Druid (1842) 1 W Rob 391. Applying these principles in the present situation it can be stated that the negligence of the master of Loms would be binding on the owners.

It is evident in the given situation that Samos violated the duty of care owed by them to Andros by making an attempt to overtake in a lane where overtaking was strictly prohibited under any situation. The fault here is of the Master of Loms. Even where breach of the defendant has been established by the plaintiff, it has to be established that the loss caused to the plaintiff was the result of the breach made by the defendant. This means that the loss must have not taken place if there was no breach. The master of Loms was at fault and as per the principles of Vicarious liability samos would be liable for the act although there was no pilot on the ship.   Further it has also been stated by the regulations that in situation where the vessels are in view of each other it is the duty of an overtaking ship to stay out of the way of a ship which is overtaken by it. Here a clear breach of duty has been made by Samos.

Further it needs to be analyzed whether the element of loss was present in the situation in order to determine a claim of negligence. It has been provided through rule 2 of the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 that any action which has been taken in compliance of good seamanship standard will not make a breach. In the given situation overtaking in a lane which prohibits such act was not a compliance with good seamanship standard. In addition losses has been incurred by Andros due to the actions of Samos which would have not been incurred if the overtaking had not taken place.

Assessing the element of loss in a claim for negligence

it has also been provided through the scenario that a loss of £25 million in relation to the chicken on board had been incurred by Samos. In relation to this situation it has been provided by the case of The Bywell Castle it had been stated by the court that a ship owner whose crews have not met the standards of  a product seamanship has the right to exonerate itself where it can be seen that the failure is a result of agony of the moment. In this case Princes Alice without warning and suddenly turned sharp to port towards The Bywell Castle which instead of turning away turned into her. In this case The Bywell Castle, was exempted from liability under the provisions. Thus the owner of Carbs cannot be held liable in the given situation through the application of the above discussed provisions.

A defence which is available to Samos in relation to the situation is the defence of “a novus actus interveniens”. In this situation where there is a successful attempt by the plaintiff in relation to the loss, the defendant has the right to show that the causation had been interrupted by some intervening event. However the circumstance in the situation is such that unbroken chain of causation is established and no interruption towards the causation can be identified. Where a broken chain is not identified no relief or defence can be provided to the defendant as stated in the case of The Oropesa. The provisions had also been made clear through the The Zaglebie Dabrowskie case. In this case even where the master had the opportunity to save the vessel the chain of causation was determined to be unbroken.

 Another defense which is present in the situation is that provided under Section 187 of the MSA 1995. As per the section if the claim is a result of a series of incidents, the court may make multiple apportionments in relation to every separate head of damages. However there is no way available through which it can be provided by Samos that Andros had done any contribution to the incident which led to the damages. This section can further not be applied as Andros is an innocent party in the situation and the section provides that there can be no innocent party in the situation.

It has been provided by Section 187 of the MSA 1995 that where the claim is a result of a series of incidents, the court may make multiple apportionments in relation to every separate head of damages. In the case of The Calliope, fault in relation to initial grounding damage which followed the collision were divided into 55% and 45% between the parties. However the section is only applicable when the parties involved in the case were all at fault. There can be no innocent party in the situation. However where there is an involvement of an innocent ship liability is decided under Civil Liability (Contribution) Act 1978[13].

Exemptions from liability under provisions of Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996

Where the ship of the claimant as rendered a total loss, damages will be awarded based on the value of the ship on the date the collision took place, rather than the voyage. In the case of The Bernina (1886) 12 PD 36 the court allowed full claim for damages even where it was evident that few repairs would have risen even if there was no collision[14].  In order to compensate the claim for loss of profit and freight an additional sum is awarded. Where there was no trading indulged into by the claimant some compensation will still be awarded in relation to loss of use.

Further damages are only provided to cover the cost of repair or reinstatement and losses arising out of the consequences. However these damages can be claimed in case of negligence. Section 190 of the Merchant Shipping Act 1995 further imposes a two year time on collision actions. However this time is entitled to be extended in certain circumstances[15].

Now where negligence has been proved the quantity of damages has to be determined. It has been provided in the case of The Bernina that the court allowed full claim for damages even where it was evident that few repairs would have risen even if there was no collision.  In order to compensate the claim for loss of profit and freight an additional sum is awarded. Where the ship of the claimant has rendered a total loss, damages will be awarded based on the value of the ship on the date the collision took place, rather than the voyage. Thus Andros are entitled to receive damages of  £25,000 and the cost of further repair which are still to be quantified.

Although damages has been faced by Policy a ship which was traveling behind Loms and Carbs no claim has been made by them and they cannot be contacted either. In this situation they have however breached a duty under rule 5 of the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 which states that it is the responsibility of all vessels to maintain a proper look out by hearing and sight.  As the act was totally the fault if Loms through the application of the Bywell Castle case it can be stated that they are not entitled to any damages in the situation. However they can make a claim from Paros Limited for their breach of duty under rule 5. In addition Andros is also entitled to off hire period damages as it would not be able to sale for three months. Such damages would not be recovered by Samos the damage has been caused by their own negligence.   

The merchant Shipping Act 1995 through the provisions of section 190 imposed two year limitation period in relation to collision actions. However the court may extended if any reasonable opportunity is not achieved during the limitation period for the ship to be arrested.  Thus in the same way the claim under this case has to be brought within the prescribed period.

The liability of a ship owner in relation to a maritime pollution is dealt with under the tort of negligence and nuisance. In addition International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 has been enacted through which the states are provided with both remedial and preventive actions in relation to potential or acute oil pollution in the high seas[16].  In relation to private law the International Convention on Civil Liability for Oil Pollution Damage 1969 (CLC) has been brought to existence to establish a more generous compensation regime as compared to that of negligence[17]. This convention was followed by International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 through which adequate compensation is provided to those victims who did not fall within the liability of the statutory liability or who were not adequately compensated. The Merchant Shipping (Oil Pollution) Act 1971 bring into the English legal system the provisions of the CLC[18].

According to Article III.1 strict liability is imposed on ship owners without considering their flag or nationality in relation to pollution damage from combination bulk carriers and laden bulk oil tankers[19]. Further Article 1.7 pollution damage means any loss or damage outside the ship which includes the cost of preventive measures, loss of profit and compensation in relation to the impairment of the environment.

It has been further provided through the provisions Art. 111.2 that a liability may be avoided by a ship owner if it can be proved by him that the escape or discharge or the threat in relation to the contamination in the outcome of an act of war or an inevitable natural phenomenon. Further the liability may also been avoided where the act has been done by a person with an intention to cause damages who is not a servant or agent of the owner. Under the 2000 CLC the liability for pollution for ships having more than 5000 and less than 140000 tons of capacity is 4.51 SDR till 5000 tons and 631 SDR for each additional ton. Further strict liability had been introduced for ship owners by International Convention on Civil Liability for Bunker Oil Pollution Damage 2001[20].

It has been provided by Article 7(3) of the E.U. Regulation No. 1215/2012  that a claim in relation to tort may be brought before the court of the member states where the harmful event took place[21]. The provisions have also been discussed in the case of Case 21/76 Handelskwekerij GJ Bier BV v. Mines de Potasse d’ Alsace SA [1976] ECR 1735[22].

In the case of Moses v MV Sea Chase [2001] FMSC 56; 10 FSM Intrm. 45 (Chk. 2001) it had been stated by the court that ships are liable for any damages which have been caused to the marine environment and only the state has the right to collect such damages for the ship rather than any their party.  Further in the case of People of Rull ex rel Ruepong v MV Kyowa Violet [2006] FMSC 53; 14 FSM Intrm. 403 the court allowed damages which had been caused by the ship by oil spill. In this case it had been stated by the court that where there is groundings and oil spills a cause of action is available. In this case the court held a claim of private nuisance would be successful as injury to the right of the plaintiff to use their property (the reef and heaving fishing by local fishermen) has been caused.

In relation to the oil pollution it can be stated that as per Merchant Shipping (Oil Pollution) Act 1971 Article III.1 strict liability is imposed on ship owners without considering their flag or nationality in relation to pollution damage from combination bulk carriers and laden bulk oil tankers. It has been further provided through the provisions Art. 111.2 That a liability may be avoided by a ship owner if it can be proved by him that the escape or discharge or the threat in relation to the contamination in the outcome of an act of war or an inevitable natural phenomenon. Further the liability may also been avoided where the act has been done by a person with an intention to cause damages who is not a servant or agent of the owner. Thus in the given situation Andros cannot evade this strict liability. According to the damages provisions under the CLC 2000 provided above they need to pay 4.51M SDR added with (631*2000) =  1262000 SDR as the vessel has  capacity of 25000 tons. The claim can be made by those whose rights to enjoy fishing had been violated under the case of People of Rull ex rel Ruepong v MV Kyowa Violet. In addition the government may also make a claim for environment pollution under the principles of Moses v MV Sea Chase.

Savage is a unique principle in maritime law which has been incorporated to provide compensation to a party who has made an effort to save another party without any duty imposed on them. However in the case of The Renpor (1883) 3 PD 115 it had been stated by the court that the services of the would be salvo rust to an extent rendered successful in order to be eligible for making a salvage award claim. Where the vessel which has been provided help is lost, no claim can be made[23].  However the principles of salvage would not be applicable in this case.

A claim in Admiralty law can be both in Rem and in Person. A claim in personam is a claim where the court have jurisdiction over the defendant in personal capacity. On the other hand where the court has jurisdiction over a specific item of property it is a claim in Rem. A defendant has the right of making a submission towards the jurisdiction of the court either by acknowledging service without taking objection or by express agreement. If not done than the court may rely upon rule 6.5 of the Civil Procedure Rules. In this case the claim in situation of maritime pollution can be brought both In rem and in Personam and on the other hand the collision claim can be brought in Personam. 

Conclusion

It can be concluded from the above situation that Andros are entitled to receive damages of  £25,000 and the cost of further repair which are still to be quantified. They however have to pay for oil pollution caused by them and the loss faced to the locals. They can claim the amount for Samos Ltd. The owner of Policy however had a claim has not made any claim in the situation. Samos is not entitled to any damages.

References

  • Civil Liability (Contribution) Act 1978
  • U. Regulation No. 1215/2012
  • International Convention on Civil Liability for Oil Pollution Damage 1969 (CLC)
  • International Convention on Civil Liability for Oil Pollution Damage 2000
  • International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969
  • Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 Rule
  • Merchant Shipping (Oil Pollution) Act 1971
  • Merchant Shipping Act 1995
  • Rule 61.4(5) of Part 61 of the Civil Procedure Rules
  • Case 21/76 Handelskwekerij GJ Bier BV v. Mines de Potasse d’ Alsace SA [1976] ECR 1735.
  • Donoghue v. Stevenson [1932] UKHL 100.
  • The Bernina (1886) 12 PD 36
  • The Bywell Castle (1879) 4 PD 219
  • The Druid (1842) 1 W Rob 391
  • The Mineral Transporter and the Ibaraki Maru [1986] AC 1
  • The Oropesa (1940) 68 Ll. L. Rep. 21
  • The Volute [1922] 1 AC 129
  • Zaglebie Dabrowskie (No. 2) (1978) 1 Lloyds Rep. 573
  • Moses v MV Sea Chase [2001] FMSC 56; 10 FSM Intrm. 45 (Chk. 2001)
  • People of Rull ex rel Ruepong v MV Kyowa Violet [2006] FMSC 53; 14 FSM Intrm. 403
  • Baughen, Shipping Law (6th Edition, 2015)
  • Baatz, Maritime Law (4th Edition, 2017)
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