Collisions at sea: legal aspects (part 1)
Collision is a maritime accident that occurs as a result of a collision or improper manoeuvre involving ships, vessels or naval craft, resulting in damage to any of them or to persons or things. The ruling of collision at sea is rather new compared to other maritime institutes and started in the late XIX century. This is due basically because to the fact that accidents when the ships were governed by sails were very occasional and the problem started with the much more faster navigation of steam-powered ships
Our Spanish Law 14/2014 of 24 July 2014 on Maritime Navigation defines for the first time collision in its art. 339.2 redundantly as a collision involving ships, vessels or naval craft, resulting in damage to any of them or to persons or things). It extends this concept to damage caused by a ship, vessel or naval artifact to another without contact as a result of an improper manoeuvre in navigation. Prior to this law, the Spanish Code of Commerce of 1885 only contained a provision reduced to declaring that the damage produced by this incident, being accidental or unavoidable, was considered as simple damage, (in Spanish “avería simple”) and being the fault of some of the captains or masters, the liability would fall on the one of them who had caused the damage. The regime of collision in our Law is based mainly in the Convention for the Unification of Certain Rules on Collision, Brussels 1910 , in addition to the other conventions on this matter to which Spain is a State party, which are: International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision, 1952, the Convention on the International Regulations for Preventing Collisions at Sea, 1972 International Convention for the Safety of Life at Sea (SOLAS), 1974 and finally Convention on Limitation of Liability for Maritime Claims (LLMC), 1976.
The dispositions of the Law 14/2014 are applicable to any civil, criminal or administrative proceedings in which claims for damages arising from collision are made and a patrimonial liability is demanded as subsidiary to criminal or disciplinary liability with the exception for parties bound by a charter, passage or work contract, whose claims are governed by their specific rules. As main principle, liability is established for proven fault, the exclusion of unforeseeable circumstances and the graduation of the faults actually produced – which will never cover the contractual relations between the parties to a contract of employment, passage or charter – when these faults are of a shared nature. For a better protection of third parties, the law declares the joint and several liability of both shipowners.
Another of the main issues is also the limitation of liability which regime applies irrespective of whether liability is claimed in civil, social or criminal judicial proceedings or in administrative proceedings which the Law adapts to the Convention on Limitation of Liability for Maritime Claims. The right may be invoked before the competent Spanish judicial or administrative bodies, regardless of the nationality or domicile of the creditors or debtors, or the flag of the ship. Shipowners may opt for other more specific limitations (carrier, transport…). The regulations provide for the right of shipowners (charterers, managers, operators, etc.) and salvors to limit their liability for a variety of maritime claims related to the operation of a ship (e.g. in respect of loss of life or personal injury and loss or damage to property, including damage occurred during salvage operations) to an amount calculated on the basis of the tonnage of the ship. The limitation of liability is considered virtually unbreakable since its is expressly said that only “a person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result”.
At European level the EU Directive 2009/20 which was adopted in 2009 as a part of the Third Maritime safety Package constitutes a complementary measure to the national Law and international Convention . It provides that all ships flying EU flags and all ship entering to EU ports have to possess insurance for the amount of up to the LLMC 1996.
Depending on the final cause of the accident or collision , the liabilities of ones or the others will the Master and its owner and/or shipowner of the vessel will arise however it is important to remark that regarding the jurisdiction to deal the applications of globally limit liability and the whole litigation and judicial procedure might be extremely complicated as normally different jurisdictions are involved. Then in respect of a collision between two vessels claims might be launched at court of the shipowners’ place of business but it is quite often that these claims enter in conflict with other ones of civil liability enacted by the shipowners normally at the flag jurisdiction or the insurers trying to mitigate the impact of the indemnities by means of the so called “forum shopping”.
These legal and technical aspects are mainly thought for cargo and merchant shipping and so in the next article we will focus on more practical topics about collision at sea affecting pleasure crafts and yachting such as personal liabilities, insurance, claims, litigation, etc.
The owner must constitute the corresponding limitation fund in order to validly claim the right to limit before the Spanish courts. Once the fund has been constituted, the holders of limiting claims will have no action to pursue any other assets of the debtor, as well as against other debtors of the same claim, but the fund constituted can only be used to satisfy claims in respect of which the limitation of liability can be invoked, even in the event of insolvency of the holder of the right to limit.
Ships or any other property belonging to the holder of the right to limit, which have been seized or sequestrated to meet a claim that may be brought against the fund constituted, shall be released by a release to be ordered by the judicial body that heard the constitution.
International conventions of 10 May 1952 on the unification of certain rules on criminal and civil jurisdiction in matters of boarding, the Convention on the unification of certain rules on criminal and civil jurisdiction in matters of boarding, the Convention on the unification of certain rules on criminal and civil jurisdiction in matters of boarding and the Convention on the unification of certain rules on criminal and civil jurisdiction in matters of boarding.
Carlos Espinosa
Solicitor & Tax Adviser
+34 627 41 32 01
carlos.espinosa@iurisnautic.com
Photo Credit: Ingrid Abery
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