Collision between vessels
Written by:
Hein Kernkamp
responsibility for collision damage
The rules on the responsibility for collision damage have largely been designed internationally and havae subsequently been implemented in Dutch legislation. Book 8 of the Dutch Civil Code contains articles 8: 540-547 DCC that deal with collisions involving a sea-going vessel. These rules on liability for damages caused by collision for seagoing vessels is based on the Brussels Collision Convention of 1910 (Convention of 23 September 1910, Stb. 1913, 74). Articles 8: 1000-1007 DCC contain the collision regulations for collisions involving only inland vessels. These are based on the Geneva Inland Navigation Navigation Convention of 1960 (Convention of 15 March 1960, Trb. 1961, 88). Dutch collision law thus largely corresponds to that of other countries who are a party to those treaties.
What is a collision?
In both the Brussels Collision Convention and the Inland Collision Convention, the term "collision" includes not only the contact of ships with each other, but also cases in which a ship, without having touched ships, has caused damage to another ship or goods and persons on board as a result of a faulty maneuver or failure to observe regulations (Article 13 Brussels Collision Convention; Article 1 Inland Navigation Collision Convention). So if a ship cannot make a manouvre correctly due to a technical defect and another ship has to divert because of this to prevent a collision and runs aground, this falls under the definition of collision.
Expansion of the collision concept in the Netherlands
The Dutch regulations in Book 8 of the Dutch Civil Code go one step further and understand by "collision" all cases in which damage has been caused by a ship, irrespective the actual cause (Article 8: 541 DCC; Article 8 : 1002 DCC).
Liability for collision
The core of the collision conventions and Dutch law is that there is only an obligation to pay compensation for collision if the damage is caused by the fault of the ship. The Brussels collision convention of 1910 regulates liability as follows:
- If the collision is accidental, if it is caused by force majeure, or if the cause of the collision is left in doubt, the damages are borne by those who have suffered them.
- If the collision is caused by the fault of one of the vessels, liability to make good the damages attaches to the one which has committed the fault.
- If two or more vessels are in fault the liability of each vessel is in proportion to the degree of the faults respectively committed. Provided that if, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or if it appears that the faults are equal, the liability is apportioned equally.
Debate on 'the fault of the vessel'
The central concept in collision law is therefore the fault of the vessel. For a long time the legal scope and meaning of the fault of the vessel was the subject of national and international debate. Should there be an actual fault on board the vessel, or is it more a risk liability? In 2001 the Supreme Court in the Netherlands put an end to this debate in standard judgment Casuele / De Toekomst.
The Netherlands Supreme Court ruled that when interpreting the concept of 'fault of the vessel' according to art. 8: 1004 paragraph 1 DCC and art. 8: 546 DCC no legal presumption of guilt exists. It can be inferred from this that the owner of the ship does not generally bear risk liability with regard to damage caused to persons or property by or with the ship.
Fault of the vessel according to the Netherlands Supreme Court
A ship is at fault if the damage is the result of:
- (a) an error by a person for whom the owner of the ship is liable in accordance with Sections 6: 169 - 6: 171 DCC;
- (b) an error committed by a person or persons who perform / have performed work for the benefit of the ship or the cargo in the performance of their duties;
- (c) the realization of a particular danger to persons or property created by the ship's failure to meet the requirements which may be imposed in the given circumstances.
Who is liable?
If a ship is to blame for the collision, the owner of the ship is liable under Dutch law.
Information
Would you like more information about liability for collisions or would you like to submit your case to us without obligation? Then you can of course contact us. We like to help you. It is not without reason that our motto is "Your problem, our concern."
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