Collision at Sea
1. Concept and subject matter
The legal concept of collision at sea (Schiffskollision, abordage, urto di navi, abordaje, aanvaring, fartyg sammanstötning) applies to any event of damage or loss caused by the contact between at least two vessels. Therefore, the principles applicable within this context constitute specific rules similar to those of the law of torts/delict. In a ship collision scenario there are typically manifold interests with respect to damages caused which are normally distributed among various parties. For this reason the legal concept of collision at sea is primarily concerned with the attribution of liabilities in damages and the respective rights among the parties directly involved. Subsequently, and having established these liabilities and rights, it is for the shipowner found liable in damages to seek a limitation of his liability for which there exists—in the maritime context—a specific set of legal rules and principles (maritime transport (global limitation of liability)). Moreover, a ship collision scenario in almost any case involves a variety of third parties, viz parties not directly affected, whose interests are in one way or another affected; first and foremost this will be underwriters. However, in the case of a salvage operation, it is also the salvor whose interests will be affected by the collision at sea. Finally, a collision at sea will frequently involve circumstances to which the principles of general average apply (Große Haverei or Havariegrosse, avarie commune, avaria comune, avería gruesa, avarij-grosse, gemensamt haveri).
The following discussion is focussed on the primary level, viz the leading principles governing the establishment of liabilities in damages in cases of vessel casualties and collisions. With the emergence of steam ships and due to the fact that, consequently, ship collisions became more likely and more of a serious problem, the Comité Maritime International (CMI) prepared and drafted an international Convention with regard to the law of collisions at sea which was subsequently adopted as the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels at the International Maritime Conferences held in Brussels in 1910 (1910 Collision Convention). The principles of the law of collisions at sea as codified in the 1910 Collision Convention are most influential within Europe since the leading European maritime nations, in terms of ships flying the flag of these nations, have invariably ratified the 1910 Collision Convention. However, on a worldwide level, taking account of flags of convenience, the significance of the 1910 Collision Convention receded due to the fact that Panama, Liberia and the Marshall Islands have not ratified the Convention though almost 40 percent of the world’s ships (in terms of (gross registered) tonnage) fly the flags of these nations. The 1910 Collision Convention is primarily concerned with substantive law, that is to say with the principles applying to the attachment of liabilities among the ships involved in a collision at sea, but not in the sense that it provides a consistent, comprehensive and self-contained set of rules. Instead, the 1910 Collision Convention lays down basic principles applying to collisions at sea but leaves the details and implementation of these basic principles in the hands of the parties to the Convention. Since 1952, however, the 1910 Collision Convention has been procedurally supplemented with the Convention for the Unification of Certain Rules Concerning Civil Jurisdiction in Matters of Collision (1952 Collision Convention; European civil procedure). As with the 1910 Collision Convention, this latter Convention went back to preparatory works of the CMI and was also adopted at an International Maritime Conference held in Brussels. It is, however, less influential than the 1910 Collision Convention, since, even in Europe, not all leading flag states, in particular Norway and Malta, have ratified the 1952 Collision Convention.
2. Scope of application of the 1910 Collision Convention
The provisions of the 1910 Collision Convention are to be applied whenever a collision occurs—irrespective of the place where it happened—between, at least, two sea-going vessels or between a sea-going vessel on the one hand and an inland navigation vessel on the other (subject matter scope of application, Art 1 Collision Convention, inland waterway transport) provided that all ships involved fly the flag of a contracting party to the Convention (personal and geographical scope of application, see Art 12). However, upon a systematic interpretation of the 1910 Collision Convention, this may be better understood as only the initial definition of a ‘ship collision’ when applying the Convention because Art 13 of the 1910 Collision Convention considerably extends the Convention’s scope of application by laying down that ‘… this Convention also extends to making good the damages caused by a vessel to another, or to goods or persons on board either vessel, either by the execution or non-execution of a manoeuvre or by the non-observance of the regulations, even if no collision has actually taken place’. Therefore, the Convention does not require that there actually be any physical contact between the vessels (cf for England The Royal Eagle (1950) 84 Ll L Rep 543; for Germany, Federal Supreme Court, BGH 14 January 1980 – II ZR 138/79).
Taking Art 1 as a starting point, the first requirement for the attribution of tortious, non-contractual obligations to a shipowner under the Convention is that there must have been a collision between two vessels with at least one sea-going vessel being involved. In this regard it is arguable that a tug together with a towed barge must not be considered as two vessels within the meaning of Art 1 of the 1910 Collision Convention.
In this respect, reference can be made to the common definition of a ship, viz every description of vessel used in navigation (see s 313(1) Merchant Shipping Act 1995; Marine Craft Constructors Ltd v Erland Blomquist (Engineers) Ltd  1 Lloyd’s Rep 514; for Germany BGH, 14 December 1951, NJW 1952, 1135; for Italy Art 136 Codice della navigazione, Corte di Cassazione, sezione I civile, 15 November 1994, no 9589, Il Foro Italiano 1994, 3387). The most distinguishing feature of the foregoing definition for the purpose of applying the Convention is the act of navigation. This requirement is not overridden or abrogated by Art 13 of the Convention. Accordingly, the 1910 Collision Convention does not apply in circumstances where a vessel has exclusively caused damage to fixed or floating objects (FFO)—such as docks, quays, jetties or other harbour or shore-based facilities and objects or persons—which are in the maritime context most commonly covered by Protection & Indemnity Clubs (P&I Clubs; indemnity insurance). The Convention is only concerned with risks pertaining to accidents between vessels or incidents within the meaning of Art 13 which are most commonly covered by the vessel’s hull and machinery insurance, at least in part (see s 6 of the International Hull Clauses (1 November 2002), known as ‘running down clauses’ (RDC)). Vessels which at the time of damage lack any ability to navigate and even to be towed represent in this context borderline cases.
In accordance with other maritime Conventions, the 1910 Collision Convention does not apply to warships or to other governmental ships appropriated exclusively for a public service (see Art 11).
Finally, the 1910 Collision Convention establishes only non-contractual obligations (non-contractual obligations (PIL)) arising in the event of a collision of ships and does not have any bearing upon contractual obligations (see Art 10).
3. Principles of the 1910 Collision Convention
As mentioned above, the 1910 Collision Convention is primarily concerned with establishing and unifying the basic principles of liabilities for damages caused by a collision at sea between the parties involved, and the contracting parties to the 1910 Collision Convention are obliged not to deviate from these basic principles. However, as the 1910 Collision Convention does not establish a consistent set of detailed rules, it is for the contracting parties of the Convention to determine the details within their domestic law of torts. Moreover, it is for the contracting parties to implement the principles of the convention into their respective legal system of non-contractual obligations.
Articles 2, 3 and 4 of the 1910 Collision Convention stipulate the general rule that in the case of a collision within the meaning of the Convention (see Arts 1, 13), liability in damages is only attributable upon a party having, first, caused the collision and, secondly, being at fault (see law of torts/delict). If no party involved is at fault or if a force majeure event occurred, there is no room for liability of either party (Art 2 of the 1910 Collision Convention). The same is true if fault cannot be established beyond doubt. Therefore, the 1910 Collision Convention bars within its ambit the introduction of strict liability. Furthermore, the 1910 Collision Convention does not explicitly determine any standard of fault since it does not contain any behavioural rules (eg intent to cause collision, recklessness, and actions with privity or knowledge). However, in Art 13 the Convention refers to ‘… non-observance of the regulations …’, which means that the 1910 Collision Convention acknowledges the application of the International Regulations for Preventing Collisions at Sea. These regulations have a history dating back to the 19th century and enjoy worldwide acceptance since they were consolidated by the International Maritime Organization (IMO) as the Convention on the International Regulations for Preventing Collisions at Sea (COLREGs) in 1972. Breach of the navigational rules of the COLREGs amounts to an attribution of fault in accordance with Art 3 of the 1910 Collision Convention. In addition, fault may also be derived from the breach of national rules of navigation provided that these rules are applicable as against the prevalence of the COLREGs.
As the notion of fault within the meaning of Arts 2, 3 and 4 is defined in terms of human behaviour, it is quite surprising that the 1910 Collision Convention uses the term with reference to vessels—a vessel itself can hardly be at fault; one would at least have expected rules of attribution of personal fault or negligence to a vessel or, even better, to a shipowner (vicarious liability). Yet the 1910 Collision Convention does not determine how the fault of the ship personnel is to be attributed to the vessel, its owner, operator, manager or even employer, solely stipulating in Art 5 that a pilot’s fault is attributed to the vessel. Since the Convention, moreover, refers in Art 10 to the national laws applying to the limitation of shipowners’ liability (maritime transport (global limitation of liability)), it might be assumed that liability under the Convention is as a general rule attributed to the shipowner and not to other persons having some kind of control over the vessel such as ship managers or charterers (charter party). Contrary to this and upon proper interpretation of the Convention, this understanding has to be disregarded as misconceived. First, and leaving Art 5 aside for the moment, the Convention lacks any express words as to the concept of vicarious liability and the imputation of fault as a result of the control of the vessel and, secondly, the draughtsmen of Art 10 and the contracting parties to the Convention most certainly did not want to imply any general rule with their reference in Art 10 to ‘shipowners’ liability’, in particular since not only shipowners avail themselves (within the concept of global limitation of liability) to limitation of their liabilities but also, for example, charterers, managers and operators of seagoing ships.
Therefore, it is for the contracting parties to the Convention to determine by means of national law or otherwise the standard of fault and attachment/attribution.
Article 4 of the 1910 Collision Convention lays down principles which apply to cases of joint liability or contributory negligence. Most importantly, Art 4(1) entails the rule that there are, in principle, no solidary obligations but that there is instead only a pro rata liability or apportionment of fault taking account of the degree of respective fault. An exception to this general principle is established in Art 4(3) of the convention with respect to damages caused by death or personal injuries. Article 4(1)(2) of the 1910 Collision Convention moreover contains a prima facie rule for cases with equivocal evidence and unresolved doubt as to the proportion of fault.
Article 6(2) of the 1910 Collision Convention determines that ‘all legal presumptions of fault regarding liability for collision are abolished’. This means that in principle the plaintiff must furnish proof concerning damage, causation and fault. However, the plaintiff can discharge his burden of proof by prima facie evidence or res ipsa loquitur as the contracting states’ domestic law of evidence is not affected by Art 6(2) of the 1910 Collision Convention.
If a party involved in a collision case is found liable, this party (the tortfeasor) has to pay compensation (‘… to make good the damages …’, see Art 3 of the 1910 Collision Convention). Since the Convention does not include any rules as to the extent of making good the damage and as to what is understood by damage, the contracting states are free to implement and apply their own national rules unless these rules encroach upon the effectiveness of the principles of the 1910 Collision Convention. In this regard, it should be mentioned that the CMI has adopted a non-committal recommendation containing a comprehensive set of rules applying to the details of compensation and the apportionment of damages (see ‘Lisbon Rules: Compensation for damages in collision cases’ 1987).
None of the provisions within the 1910 Collision Convention affect the possibilities of limiting liabilities within the maritime nexus (see Art 10; maritime transport (global limit of liability)).
Finally, the 1910 Collision Convention contains in Art 7(1) its most significant provision according to which actions for the recovery of damages are barred after two years’ time from the date of the casualty (prescription). Moreover, Art 7(3) of the Convention establishes a proper conflict of law rule (private international law) in laying down the rule that suspension and interruption are determined by the law of the court where the case is tried (lex fori).
4. Jurisdiction according to the 1952 Collision Convention
The Convention for the Unification of Certain Rules Concerning Civil Jurisdiction in Matters of Collision of 1952 (1952 Collision Convention) represents an annex or complementary regulation to the 1910 Collision Convention as the 1952 Convention only applies to claims within the scope of the 1910 Collision Convention. This is achieved by an identical scope of application laid down for both Conventions (see Arts 1(1), 6 of the Convention).
For ship collision claims arising under the 1910 Collision Convention, the 1952 Collision Convention assigns jurisdiction to the courts at the defendant’s habitual residence or place of business (Art 1 (1)(a)), at the place of the collision, provided the collision has occurred within the limits of a port or inland waters (Art 1(1)(c)), and at the place where arrest of the defendant ship or of any other ship which can be lawfully arrested and belonging to the defendant has been effected (Art 1(1)(b)). Moreover, according to Art 3(2) any claimant may ‘… bring his action before the Court previously seized of an action against the same party arising out of the same collision’.
If and to the extent that the subject matter, scope of application and the personal and geographical scope of application of the 1952 Collision Convention are fulfilled, its rules prevail over the provisions contained in Council Regulation (EC) No 44/2001 as stipulated in its Art 71.
5. Application of the Rome II Regulation
As explained above, the 1910 Collision Convention does not establish a consistent set of detailed rules but merely basic principles and leaves it to the contracting parties of the Convention to determine the details within their domestic law of torts. However, before reference can be made to any domestic law in respect of the aforesaid details, the applicable (domestic) law will have to be determined in accordance with the principles of private international law (non-contractual obligations (PIL)).
Within the European Union, the relevant conflict rules are Arts 4 and 14 of the Rome II Regulation with the following order of application: (1) the choice of a particular law by the parties will always prevail (Art 14 of the Rome II Regulation), (2) if the involved vessels fly the same flag, and always provided that there is no choice of law by the parties, commentators argue for an application by analogy of Art 4(2) of the Rome II Regulation, that is to say, application of the law of the common flag, and (3) in all other cases Art 4(1) of the Rome II Regulation will directly apply.
The application of Art 4(1) of the Rome II Regulation to collision cases will arguably lead to the following results: (1) as a general rule the law of that coastal state will apply in the territorial waters of the state where the collision damage was sustained, (2) if the collision damage was sustained outside territorial waters but in the exclusive economic zone, the law of the respective coastal state might be applicable (see ECJ Case C-37/00 - Weber v Ogden  ECR I-2013), and (3) in respect of collisions on the high seas the lex fori is the applicable law. The application of the law of the flag of the vessel which sustained damage, which some authors suggest, cannot be reconciled with the principles of the Rome II Regulation as this approach would lead to the application of two or more different laws to one and the same tort—a totally impracticable and, moreover, unjust result.
Jürgen Basedow, ‘Der internationale Schadensprozess nach Seeschiffskollisionen’ Versicherungsrecht (1978) 495; Georg Schaps, Hans Jürgen Abraham and Klaus H Abraham, Das Seerecht in der Bundesrepublik Deutschland (4th edn, 1978) Part II, s 734; Hans-Jürgen Puttfarken, Seehandelsrecht (1997) 299; Francesco Berlingieri (ed), The Travaux Préparatoires of the 1910 Collision Convention and of the 1952 Arrest Convention (1997), Oya Z Özçayir, Liability for Oil Pollution and Collisions (1998); Rolf Herber, Seehandelsrecht (1999) 383; Dieter Rabe, Seehandelsrecht (4th edn, 2000) s 734; Simon Gault, Steven J Hazelwood and Andrew Tettenborn, Marsden on Collisions at Sea (13th edn, 2003); Christopher Hill, Maritime Law (6th edn, 2003) 245; José Luis Gabaldón García and José María Ruiz Soroa, Manual de Derecho de la Navegación Marítima (3rd edn, 2006) 691; Aleka Mandaraka-Sheppard, Modern Maritime Law and Risk Management (2nd edn, 2007) 533; Jürgen Basedow, ‘Rome II at sea—General aspects of maritime torts’ (2010) 74 RabelsZ 118; Thor Falkanger, Hans Jacob Bull and Lasse Brautaset, Scandinavian Maritime Law (3rd edn, 2011) 226; Sergio M Carbone, Pierangelo Celle and Marco Lopez de Gonzalo, Il Diritto Marittimo (4th edn, 2011).