Collisions at sea – What may appear simple, is actually not!

Causation, the need to explore and establish

Technology has advanced considerably, and so has the extent of training and certification requirements of every single seafarer on board. Over the last two decades, importance of human element has being recognized, with a lot of research taking place in this area. Some flag states have further made it mandatory to undergo courses specifically designed to deal with this issue (Human Element, Leadership and Management (HELM) under MCA for deck officer’s licence certification). However, collisions continue to occur, and still form a significant proportion of all marine casualties and accidents of merchant ships globally.

Though at times it may be apparently clear as to which ship has acted more negligently than the other, what is important for determining liability is to identify the act which has subsequently caused the loss. Under English law, collision cases are dealt under tort of negligence, and one of the most important aspects of proving it, is to determine the causative factor, as the connection between the act of negligence of one vessel, and the damage finally incurred by the other vessel. This article, with the help of case law under English law, will highlight the difficulties involved in determining the same.

Burden of proof, who has it, and does it shift

As seen in The Nador [1909] P 300, the burden of proof, invariably stays with the party claiming liability for its loss from the other ship(s), and if not proven, loss must rest where it has fallen.

However, there are instances where an act, may fall under the doctrine known as res ipsa loquitur, the principle that the mere occurrence of some types of accident is sufficient to imply negligence. For example, this was the case in The Kate (1936) 54 Lloyd’s Law Rep 120, where a ship moving at good speed hit a flotilla of barges moored near entrance to docks in fair weather and visibility. This causes the burden of proof to shift to the defendant to show that his negligence has not caused the damage. 

If the claimant succeeds in demonstrating negligence, the defendant may then also attempt to show that the chain of causation was broken by some intervening event, a novus actus interveniens.

Proving causation, not so simple

There are various possibilities where causation comes into play for apportionment, preclusion or complete liability on the act of the person causing the loss, and will be discussed along with relevant cases.

• Incidents where the claimant fails to prove a causation on defendant.

The Merchant Venturer [1997] 1 Lloyd’s Rep 388. The vessel ran aground and suffered damage; owners sued local navigation authority for wrong placement of buoys. However, the cause of the loss was found to be negligent navigation by the Master of the ship, and therefore, responsibility of the loss stayed with the owners.

The Fedra [2002] 1 Lloyd’s Rep 453. The claimant could not prove that failure of hull causing flooding of holds, 79 metres aft of the collision site, was due to the collision and not due to badly corroded plate. Causation was not proved on the collision and thus the loss was not recoverable. 

The Atlantic Crusader [2005] EWHC 380 (Adm), [2005] 1 Lloyd’s Rep 699. Claimant’s vessel, while underway, struck another vessel at anchor after an unberthing manoeuvre: she was solely to blame for the collision. The former's faults in respect of appreciation, lookout and the manner in which the unberthing manoeuvre was conducted were causative of the collision. The vessel at anchor's failure to control her yaw was not causative, because the collision would have occurred even if she had controlled her yaw.

• Broken chain of causation (novus actus interveniens).

The Carslogie [1952] AC 292. Subsequent damage due to heavy weather which made repairs urgent could not be claimed following a collision. The collision had caused damages which were not urgently required to be repaired. Causation chain was broken as unseaworthiness was due to heavy weather damage, and not the collision. 

The Fritz Thyssen [1967] 2 Lloyd’s Rep 199. After the collision incidence occurred, Master of the claimant vessel repeatedly and unreasonably refused salvage assistance, and further sought damages from defendant after the vessel sank. It was held that loss of the vessel really flowed not from the collision but from its Master's unreasonable refusal of salvage assistance.

• Chain of causation continues, even in superseding events.

The Oropesa [1943] P 32. After the collision incidence, Master of the severely damaged vessel took 16 crew with him in a boat to the other vessel, to discuss possible salvage of own vessel. Due to heavy weather, the boat capsized and 6 men lost their lives. It was held that the chain of causation was not broken for the subsequent loss of lives, and formed part of the initial negligence which caused the collision. 

The Calliope [1970] P 172. There was subsequent grounding and damage of claimant’s ship after initial collision with defendant’s vessel. Though claimant was also at fault, but causation chain was deemed to have continued. The liability in the subsequent grounding damage was sub-apportioned in accordance with the initial liability determined by the Courts. 

• Causation of both parties equal in nature, or way too mixed up

The Eurymedon [1938] P 41. A ship at anchor was held equally liable for being involved in a collision with an approaching ship, due to its wrong positioning in anchorage which was obscuring the approach to fairway. This is a clear contrast from what an outsider may perceive to be a typical res ipsa loquitur scenario, as was seen in The Kate above.

The Volute [1922] 1 AC 129. The collision was due to the failure of the Volute to give the appropriate whistle signal when she ported and the fact that the Radstock, in the resulting position of danger, had then gone full ahead. Both were adjudged to have caused the collision. 

The Margaret (1881) 6 PD 76. A dumb barge collided with a moored schooner, however the cargo on the barge was damaged due to an unlashed anchor of the schooner, which was against the local bye-laws. Consequently, both were held liable for the loss. 

Nautical Challenge Ltd v Evergreen Marine (UK) Ltd [2017] EWHC 453 (Admlty), [2018] 1 All E.R. (Comm) 775. This was a collision case between two vessels, where on basis of facts of case, it could not be ascertained if either of the ships was solely to blame. Apportionment was thus done according to relative culpability and causative potency of each vessel’s fault. Breach of specific provisions of COLREGs plays an important part in such scenarios. 

Conclusion

It can be seen from above instances, that causation plays an important role in determining the root cause of the loss incurred by vessels involved in a collision scenario. What may appear to be a clear hit and run case, may not be truly so, and it is imperative that facts of each collision incident are specifically analysed to determine the ‘root cause’. It solves a twofold purpose: firstly, of determining the liability; secondly and most importantly, to get the learning out of each scenario and share with the world as to how such situations may possibly be avoided.