Mr Johnston highlighted the navigational general principles laid down by the International Regulations for Preventing Collisions at Sea 1972 (known for short as Colregs). Rule 7 says: “Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists.” Rule 19 stipulates that in restricted visibility “every vessel shall proceed at safe speed… A power-driven vessel shall have her engines ready for immediate manoeuvre.”


The only real defence available to liability is the so-called “agony of the moment” where a vessel is put into a collision situation by the actions of another vessel, being under time pressure to react: “sudden and great danger.” This does not apply when a ship has contributed to creating the dangerous situation.


Under the Merchant Shipping Act, shipowners and salvors may limit their liability in accordance with the rules of the Collision Convention for claims “in respect of loss of life or personal injury or loss of or damage to property…occurring on board or in direct connection with the operation of the ship…”


In the notional collision example advanced by Mr Johnston, parties


would have to consider which limitation of liability convention was applicable. Given the differing protocols among jurisdictions, parties might have a choice in this case of Singapore, UK (although there was no direct UK involvement, parties would consider the standing of English law and practitioners’ expertise in shipping matters), Germany, Greece, Mexico, India, Chile, or US. The financial implications for damage assessed could vary considerably, and Mr Starmans emphasised the difficulty that adjusters occasionally faced in the whole question of “forum shopping.”


In principle there is a right of full and complete indemnity for loss suffered by negligence of the other party. Restricting factors were remoteness of damage and pure economic loss. Claims arising might typically be for repairs; loss of earnings; costs of arriving at, lying at, and leaving the repair port; salvage; survey fees; and superintendence.


If a ship is considered lo st, the owner recovers the reasonable market value of the vessel at the date of loss plus interest, and loss of earnings.


For harbour damage, there is strict liability. On the question of personal injury, representatives of the deceased could sue either vessel if both ships were at fault, and recover 100% from either, subject to limitation.


Mr Zavos said evidence in collision liability cases depends less than it used to on the recollection of those on board or surveys of the speed and angle of blow. These days, voyage data recorders and automatic identification systems provided a more accurate account of what happened – this is not to say that the evidence of those on board is irrelevant, but the focus is more now on the attribution of fault and relevance and interaction of the collision regulations.


Mr Zavos said that protection and indemnity (P&I) cover would generally fill any gaps in hull and machinery cover, including claims related to “fixed and floating objects.” For contact with such objects, the provisions of the Merchant Shipping Act did not apply. There is a rebuttable presumption that the responsibility lies with the moving object. He said that the financial limit of collision liability cover under International Time Charter- Hulls clauses is generally three- quarters of the sum insured “any one collision” plus three quarters of legal costs incurred with the consent of underwriters.


Most collision cases are resolved without recourse to the courts, particularly once issues on jurisdiction and limitation have been resolved between the parties, the speakers outlined.


The Report • June 2022 • Issue 100 | 85


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