COLLISIONS: HOW IS LIABILITY ALLOCATED?

In Brief:

• Maritime collision liability is governed by a complex web of international conventions such as COLREGs, SOLAS, MARPOL and UNCLOS, which regulate navigation, seaworthiness, pollution liability and jurisdiction.
• Law gives prominence to the fact that collision is never the result of a single isolated mistake but rather multiple failures involving human error, technical malfunction and regulatory non-compliance.
• Technical evidence such as AIS data, VDR recordings, engine logs and forensic analysis, along with investigations by the Marine Accident Investigation Branch (MAIB), is increasingly being used to determine fault and proximate cause in collision claims.
• Modern maritime liability is based on proportionate fault, supported by insurance and limitation regimes, and regulatory compliance is the strongest defence against collision liability.

INTRODUCTION

When a vessel sails out, it is said to be undertaking a ‘maritime adventure’ because it is leaving the safety of the shore while entering into a world of uncertainty, exploration, and potential challenges that are mostly unforeseeable. Such unforeseen risks and perils increase the possibility of accidents that might lead to the incurring of substantial financial burden to the vessel and its owners or charterers.

A collision is one such maritime incident. A collision event involves the actual contact of two sailing vessels, including their anchor or mooring chain. When one vessel strikes a stationary object such as an anchored ship, buoy, or rig, it is termed allision. But any damage experienced from another vessel’s wash or caused by one vessel during congestion passing through a narrow channel/conduit is not legally a collision event. Collision events are rarely the result of a single isolated error. It is typically a “Swiss Cheese” model of failures where technical malfunctions, human oversight, and regulatory breaches simultaneously contribute to the event. To determine liability, one must navigate a dense thicket of laws that govern how vessels are built, how they are sailed, and how damage is mitigated.

For centuries, seafaring States have recognised the necessity of regulating navigation in order to prevent collisions at sea. Although customary navigational practices and informal rules existed since the beginning of merchant sailing, they lacked statutory authority until the nineteenth century. A notable development occurred in 1840 when the Trinity House in London formulated a comprehensive set of navigational regulations, codified as the Steam Navigation Act of 1846, granting these customary rules a statutory identity.

Today, the regulation of navigation is convoluted, involving global and regional frameworks, several regulatory authorities and specialized rules for peculiar geographic and weather conditions. The complex web of rules governing navigation, and incidentally a collision event begs the question as to how liability will be determined during a collision event. More importantly, it is necessary to understand what factors influence courts and tribunals in apportioning liability during collision events. This article explores the facets of fault during a collision event to makes sense of how the procedure for liability apportionment typically proceeds.  

LEGAL PILLARS OF LIABILITY

A. THE COLREGS: THE RULES OF THE ROAD

The Convention on the International Regulations for Preventing Collisions at Sea (1972) is the primary yardstick for assessing fault. In any Court, the first question is: Who breached the COLREGs?

• Rule 5 (Look-out): The most frequently cited breach. It requires every vessel to maintain a proper look-out by sight, hearing, and all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision. (Radar/AIS).
• Rule 7 (Risk of Collision): Liability often hinges on whether a bridge team used “scanty” radar information to justify inaction.
• Rule 15 & 16 (Crossing Situations): These define the “Give-way” and “Stand-on” vessels. However, Rule 17 notes that even a stand-on vessel can be held liable if it fails to take action once a collision becomes imminent.

B. SOLAS: THE TECHNICAL DETERMINANT

The International Convention for the Safety of Life at Sea (SOLAS) governs the technical fitness of the vessel.

• Liability Trigger: If a collision was caused by a failure of the steering gear or a malfunction in the Bridge Navigational Watch Alarm System (BNWAS), and it is proven that the owner failed the “due diligence” standard to maintain the equipment, they may lose the right to limit their liability under the LLMC Convention.
• VDR Data: SOLAS Chapter V, Regulation 20 mandates the Carriage of Voyage Data Recorders (VDR). This “Black Box” is the ultimate “silent witness” in legal proceedings.

C. MARPOL: ENVIRONMENTAL INDEMNITY

While COLREGs determines why the vessels hit, MARPOL determines the cost of the aftermath to the environment.

• If a collision results in an oil spill, the vessel in breach is strictly liable (without fault) under MARPOL Annex I.
• Technical issues often arise here regarding whether the vessel’s construction (e.g., double hull integrity) mitigated or exacerbated the discharge.

D. THE UNCLOS

The United Nations Convention on the Law of the Sea (UNCLOS) provides the spatial legal framework.

• Flag State vs. Coastal State: UNCLOS defines who has the right to prosecute. If a collision occurs in a State’s Territorial Sea, the Coastal State has significant sway. In the High Seas, Article 97 stipulates that no penal or disciplinary proceedings may be instituted against the master except before the authorities of the Flag State or the State of which the person is a national, for negligence.

LIABILITY APPORTIONMENT

The vessel that strikes another in the side is often considered the “striking” vessel, while the one hit is the “struck” vessel, but liability depends on which vessel failed to give way. The breakdown process to identify the faulty vessel typically takes the following sequence:

• The Striking Vessel (Bow/Tip Damage): The vessel whose bow (stem, bulbous bow, or anchor) is damaged usually has a high, vertical, or “V”-shaped scar. If this damage is accompanied by paint from the other vessel, it confirms it as the striking vessel.
• The Struck Vessel (Side Damage): The vessel with damage to its port or starboard side (plating deformation, torn frames, breach in the hull) is generally the one that was struck.
• Angle of Collision: A near-90-degree angle often indicates that the striking vessel did not make an effort to turn away, or it failed to give way, especially in crossing scenarios.

Paint Analysis: Forensic analysis using Scanning Electron Microscopy (SEM-EDS) or Fourier Transform Infrared Spectroscopy (ATR-FTIR) can identify paint traces from the “guilty” vessel on the “victim” vessel, proving which vessel initiated the contact. 

THE DEATH OF “ALL OR NOTHING” CLAIMS

Historically, maritime law favoured a 50/50 split if both were at fault. Since the Brussels Collision Convention (1910) and subsequent domestic adoptions (like the UK Merchant Shipping Act), liability is apportioned according to the degree of fault.

BOTH TO BLAME COLLISION CLAUSES

A widely accepted and used collision clause in Marine Insurance mandates that if two vessels are found negligent in a collision event, they share the financial burden of the cargo loss in proportion to their fault. The loss sharing is based on the investigation into the degree of default.

THE “AGONY OF THE MOMENT” DEFENCE

A crucial concept is the “Agony of the Moment.” If Vessel A puts Vessel B in a position of imminent peril through a gross breach of COLREGs, Vessel B is not held liable if their split-second reaction, leading to damage, is not “perfect,” provided it was reasonable.

THE DEVELOPMENT OF A COMMON LIABILITY MATRIX

As explained above, a number of factors determine the degree of fault during a collision event.  While the Master is the first point of contact for blame, the techno-legal trend is moving toward “Corporate Liability.” The integration of MAIB-style technical rigour ensures that “human error” is no longer an acceptable endpoint, but rather the beginning of an inquiry into why the system allowed that error to occur. A ready reference collation of some frequent faults in relation to collision events and their liability is as follows:

Factor	Regulatory Reference	Liability Impact
Failure to Plot Radar	COLREG Rule 7	High (Negligence)
Non-functional AIS	SOLAS Chapter V	Medium (Unseaworthiness)
Fatigue/Manning Levels	STCW/SOLAS	High (Owner’s Privity)
Pollution Post-Impact	MARPOL	Statutory Penalties

In the 21^st Century, the shift from “he-said-she-said” circumstantial evidence to “data-driven” thorough fact-finding to ascertain liability is imminent and widely used in Courts. AIS Overlay to reconstruct the paths of vessels, VDR Audio to evaluate the communication (or lack thereof) between the Master and the Pilot and Engine Logs to determine if “Full Astern” was actually executed in time are regularly being used to determine fault. For instance, if the technical data shows a vessel was “speeding” in restricted visibility (Violation of COLREG Rule 6), the legal presumption of fault becomes almost insurmountable. All vessel Owners must possess H&M Insurance cover and also P&I Club Cover so that vessel owners can be indemnified in case of Collision Liability, which is to be paid in terms of  Special Drawing Rights (SDR) to limit the liability of the vessel owner.

Most importantly, owners and operators must recognise that compliance is not just a safety requirement; it is the only robust legal defence in an era where every move on the ocean is recorded, analysed, and litigated.