Marine Navigation Navigational Errors and Assessment of Fault - PowerPoint PPT Presentation

Marine Navigation Navigational Errors and Assessment of Fault

Introduction From an arbitrary system towards proper civil liability • History of common law collision regulations • Maritime customs formed part of regulations in 1840 • Recognition of maritime customs by the courts • “Both ships were to blame for collision” • “Presumption of fault” • eg. Collision case The Englishman in 1877 one -no side lights; other- no proper look out • Abolishing the presumption of fault rule in1911 and berth of “proportionate fault rule” this rule applies to all including damages to ships, cargoes freight and any property on board.

Proportionate fault rule • Advantage compare to old rules • Modern day of doing business • Development of navigational rules in line with other rules in the common law countries • How the fault is assessed • The “duty owe to the other” – collision regulations • The “breach” • The “causation” • The “remoteness”

Professional Standard and Tolerance • Objective standard “ordinary practice of the seamen” • Subjective standard -not normally used • Inevitable – ordinary practice ;all necessary measures taken in time Collision case the Merchant Prince 1892 “Show that the cause of the accident that through exercising ordinary care, caution and maritime skill the result of the cause was unavoidable ” • Agony and professional standard Collision between Bywell Castle and The Princes Alice - 1879 Agony: “Ship has no right by his own misconduct to put another ship into a situation of extreme peril and then charge the other ship with misconduct” Professional standard: “we cannot expect same amount of skill as we should under other circumstances ” • The assessment of the standards-The nautical assessors and their duty

Regulation 15 Crossing Situation • Stand on vessel • Give way vessel • General principle of division 20% and 80% Used in collision case Hanjin Madras and Mineral Dampier in 2000 • Reasons for such divisions and percentage: Colreg requirement and interpretation Higher percentage for give way vessel reason for percentage limits -past decisions stand Can the percentage be changed? facts, courts ranking, statues

Regulation 14 Head on situation • Duty of both ships • Difficulty may arise in congested waters • Open sea situation one of the vessel did not alter course • Division 15% and 85% in congested water situation – collision case Agro Hope and The Bebington 1982 reason for 15% little other can undertake in congested waters • Options available for open sea situation more can be done by the other vessel therefore division could be more than 15%

Regulation 19 Conduct of vessel in Restricted Visibility • General requirements: safe speed, engine readiness, radar plotting , look out , significant alterations that is obvious to the other. • Issue of when it is not possible to determine the degree of fault: difficult or not possible • The division of fault on 50% each apply only when not possible collision case Ercole and the Embiricos in 1977

The available defenses Human negligence and defense Defense of inevitable accident: • The principle “whether sufficient precautions could have taken much earlier” • Negligence at any point of time may loose the defense • Caution – successful in few cases only • avoid any loose application Collision case The Marpesia and The America in 1972 this defense was successful in the above, avoiding action was not possible in such a short period of time. Later case the Merchant Prince in1892 it was not because they should have changed to hand steering much earlier

Defense of agony of the moment when our agony is created by the other who shall be liable? • Others fault cause a dangerous situation and an agony • Wrongful action by own vessel yet excusable • Factors to consider: perfect skills presence of mind under normal circumstance cannot be applied when in an agony. • Collision case – the Bywell Castle and Princes Alice in 1879 The principle: “Ship has no right by its misconduct put another into a situation of extreme peril and charge the other with misconduct.”

Defense of new intervening actions • Intervening actions eg. After a collision not taking tug assistance immediately and end with further losses or total loss in the collision case Frita Thyssen and Mitera Marigo in 1967 • Failure of mitigation measures – collision case The Calliope and Carlsholm in 1970 • Third ship

Defense of necessity when to depart from the collision rules colreg.2b • One of oldest and well known • Human cnnibalism on the high seas following a shipwreck was allowed as “defense of necessity” Dudley and Stephens case in 1884 • Application to collision regulations “departure from the rules when necessary except when the necessity was not brought about by his own fault ” – Collision case Southport corp. and Esso Petroleum 1954

Time bar defense • Time limit of two years • The covers • When is it possible to extend

Limitation of liability as a Defense (admiralty practice direction) • When to apply – after the liability apportioned • Who can benefit – the person with higher percentage of fault • Factors to consider “personnel fault” of owner cannot rely on limitation • Consequences when smaller ships are at fault.

Application of limitation Eg. Collision between two ships crossing situation total damage to both vessels $1000 000 • Proportionate fault rule applied and blame 20% and 80% • Therefore the vsl at fault (grt 500) owes the other 600 000 (limitation apply only to the vessel at higher degree of fault and after the apportionment of liability - convention art 5) • Allowed to limit under 1976 Convention to 333 000 – 500 grt • Therefore the balance payable is only $ 333000 instead of $600000 • How the balance be distributed – 1.Courts expenses 2. Liens .Salvage tug , Wages, damage 3. Suppliers 4. unsecured creditors

Summary and conclusion • Limitations : varies combinations ; the facts of cases; ship and non ships; USA laws, cargo damages, death and injuries • The psychology behind the proportionate fault rules: • Maritime casualty concerns, pollutions, operation of shipping business and common law practice • It is not a perfect system but widely applicable with logic • Not codified and subject to inconsistencies. Thank You