Collision at sea: practical aspects (Part 2)
Collision is the collision involving ships, vessels or naval artefacts, resulting in damage to any of them or to persons or things, and is regulated in Spanish law by Law 14/2014, of 24 July, on Maritime Navigation. Prevention, through strict compliance with the International Regulations to prevent collisions, is the best measure to avoid them. However, there are a series of aspects that are difficult to understand for the seafarer that can generate great insecurity at the key moment of executing an evasive manoeuvre. Overcoming these situations is essential because the seafarer’s responsibility not only affects the people and goods carried by his vessel, but also extends to other vessels and to the coasts and natural resources through which he is passing.
Once a collision has occurred, the first thing to do is to look after the life and physical integrity of the passengers, to try to avoid greater damage and to safeguard the lives of the people. The next step is to assess the damages and the cause or perpetrator of the collision. Desperation and distress can lead us, in a dangerous situation, for example, to abandon our vessel hastily and without taking the minimum safety precautions. As a basic rule, the boat should only be abandoned when it offers less guarantees of protection than any other means of survival, and never, if possible, without having sent out a distress message and taken the basic preparatory measures for abandonment.
Depending on the specific circumstances of the collision between the vessels, it will be possible to determine whether there was fault or negligence on the one party of either or both of them, and the collision may therefore be classified as culpable, fortuitous or doubtful.
In culpable collision, the decisive element is the failure to observe any marine rules of experience or rules which ought to have been known. In collision caused by joint fault, the liability of their respective owners shall be graduated in proportion to the degree of fault attributed to each ship or, as the case may be, vessel or marine craft.
The determination of the extent and nature of the liability is essential when litigating for compensation for the damage caused. It is therefore necessary to document the facts and consequences of the collision by means of photographs of the damage or wreckage, position and names of the ships as well as their course and description of the manoeuvre, witnesses and data on the state of the sea and the wind.
The report shall be made within 24 hours by means of a declaration before the competent authority of the point where the collision took place (Guardia Civil) , or that of the first port of arrival of the vessel, the competent Juzgado de lo Mercantil (Commercial Court) Â if it is in Spain, or before the Spanish Consul if it occurred abroad. However the shipowner who is obliged to pay compensation in such cases may in due course bring a civil and/or criminal action against the person who caused the damage.
In the event of personal injury or loss of life, criminal proceedings are opened, so it is important to clearly ratify all the facts before the authorities investigating the incident so that this is reflected in the report of the Judicial Police of  the Guardia Civil or the report of the CapitanÃa MarÃtima.
At this point we must remember that all ships and boats are obliged to contract civil liability insurance which, among other things, covers damage caused to another vessel due to collision, regulated by Royal Decree 607/1999, of 16 April, of compulsory civil liability insurance for recreational or sports boats, which establishes minimum limits of 96,000 euros for material damage, i.e. damage to the other vessel, and 120,000 euros per victim. The insurance expressly covers damage caused by collision with or without contact between boats. It is a third party insurance, which means that it does not cover the damage to the insured boat that is at fault. It is therefore advisable to make an amicable report signed by the parties involved in the collision detailing the facts and from this report it will be possible to determine, in case of doubt, who is at fault. If there is no personal contact between the parties and an amicable report is not made, which is often the case, it is essential to identify the flag and registration number of the vessel that has boarded us, as well as the details of witnesses who can corroborate the incident. Any information that we can gather in order to prove the fact and circumstances will be essential for a future claim.
The legislation regulates what is called the direct action whereby the injured party can claim directly against the guilty party. In other words, it is not necessary to make a claim against the other vessel, as it is possible to claim directly against its insurer. The problem lies in knowing who the insurer is, although it is reasonable for the parties to exchange this information. The legal claim will be made against the shipowner, the skipper and the insurance company and the statute of limitations expires two years after the date of the collision.
However, we have to bear in mind that, even if we recognise the fault of the other party, our insurer will want to know exactly what happened and it could be the case that, having recognised the fault, our insurer does not cover the damage because it interprets the facts in a different way, in which case we will have no choice but to take our insurer to court, as our recognition of fault does not bind it, but it does bind us before the injured party. Whether or not it is clear who pays for the damage, it is important to assess the cost of the repairs to be carried out.
If one of the parties and the insurer agree to pay, the insurer will send an expert to assess the cost of the repairs. If there is no agreement on the extent of the damage caused by the incident and the cost of the repairs, a contradictory expert valuation procedure would be initiated in which each party appoints a surveyor and, if there is no agreement, a third surveyor to settle the dispute. In the event that the ship that is entitled to compensation also has its own damage insurance, the shipowner could act in two ways:
– By giving a report to his own company for payment.
– By claiming against the ship at fault or against his own insurance directly.
In the first case the company will pay its insured and then claim from the company of the guilty party. Note that if we follow the first route the company will pay according to what our policy says and surely will not cover collateral damages such as loss of earnings or consequential damages, compensation that we must claim separately. If we opt for direct action against the ship at fault and its insurance, we could claim everything in the same package.
Finally, it should be noted that the damages derived from collision constitute a maritime claim under the International Convention on the Arrest of Ships, Geneve 1999, which means that the arrest and immobilisation of the vessel causing the damage can be requested prior to or in conjunction with the filing of the legal claim.
Carlos Espinos
Solicitor and Tax Advisor
(+34) 627 413 201
carlos.espinosa@iurisnautic.com
http://www.iurisconcept.com/
