Working in the maritime industry comes with many risks and dangers. Many times, accidents and injuries happen seemingly out of nowhere, leaving behind devastating results. There are several factors that contribute to maritime accidents, some more common than others. Show Equipment FailureMaritime equipment is usually well-designed and built to tolerate the stresses that all vessels undergo while navigating the world’s oceans and waterways. However, it is also increasingly complex and contains a myriad of moving parts. Many maritime accidents are caused by engine breakdowns, problems with electronic systems, and other types of equipment failure. Sometimes equipment failure is a result of natural phenomena such as bad weather or heavy seas, but in many instances, there are other causal factors that come into play. Common causes of equipment failure include:
Another major cause of equipment failure is a language barrier, especially when it comes to operating manuals. Per the Institute of Seatransport, even though ship design and building methods have improved over the years, there is a need for well-written and properly translated operating manuals In many cases, the documentation that comes with maritime is generic and written in languages that many ships’ crews can’t read. This problem can be remedied by the use of readily-available translation software, but many shipping companies don’t exercise this option. Lack of Proper Training and Human ErrorAccording to the Mariners Alerting and Reporting Scheme (MARS), human error accounts for the majority of maritime accidents. Human error typically occurs due to improper training and/or lack of training, inexperience, fatigue from being overworked, and overexertion. In some cases, such as the Costa Concordia grounding which caused 32 deaths in January of 2012, human error can be caused by the incompetence of a ship’s captain. Even in a world where many ships’ functions are automated, experience and proper training make a considerable difference on how a vessel is operated. Many accidents occur because a seaman or a ship’s officer does not react quickly or properly in an emergency situation, such as a collision with another vessel or a sudden shipboard fire. In most instances, well-trained personnel have faster reaction times and can cope with unexpected crises better than inexperienced crew members or junior officers. Trained and experienced seamen don’t panic and can take the proper actions necessary to save the vessel, its contents, crew, and passengers. Keep in mind that even if they are properly trained, overworked seamen are also dangerous seamen. Men and women who work on ships risk becoming physically and mentally exhausted. Overworked seamen and officers are more likely to make poor decisions, misread navigational charts or warning signals, or have slower reaction times than those who keep regular eight-hour watches. Chronic lack of sleep has the same effect on the brain as drinking alcoholic beverages, and many seamen have been killed or injured as a result of sailing on a vessel with an overworked crew. Collisions at SeaDespite the existence of modern navigation and communications aids such as ship-to-ship radios, radar, GPS, and state-of-the-art computerized navigation charts, collisions at sea are still a major cause of maritime disasters. The worst peacetime maritime accident in history was the collision of the passenger ferry MV Dona Paz with the tanker MT Vector. This collision, which killed over 4,000 persons on a ship intended to carry only 1500 passengers, occurred off the Philippine Islands on December 20, 1987. Only 24 survivors were rescued. Collisions at sea are more likely to occur in busy ports and crowded shipping lanes, especially near the coast or in narrow straits and inlets. These accidents are often the result of inexperienced watchstanders on the bridge, navigational errors, malfunctioning or misused radar systems, and poor decision-making by overworked personnel. Poor MaintenanceMaritime vessels are essentially a collection of interlinked systems that must work together in order to operate and navigate safely on the water. Every part of a ship is essential, no matter if it’s the ship’s engines or a watertight hatch. Even the most solid pieces of a ship are affected by wear and tear, so sticking to a proper maintenance plan helps to prevent maritime accidents. Many seamen have been injured or killed, and many vessels damaged or lost, as a result of poor maintenance. Trip and fall accidents occur frequently when loose or corroded metal ladders are not properly secured or replaced. Seamen have lost fingers and other body parts to malfunctioning watertight doors, and poorly maintained fuel lines have caused fatal shipboard fires. These maritime accidents were not inevitable. They could have been avoided if proper steps were taken to keep the vessels safe and seaworthy. More Information on Maritime InjuriesFor more information about maritime accidents and injuries, please complete our form today to receive a free Maritime Injury Guide. Each guide contains invaluable details concerning accidents, injuries, and what your legal rights and options are if you’ve been hurt while on the job.
1 The Association shall cover liability to pay damages to any other person incurred as a result of a collision with another ship, if and to the extent that such liability is not covered under the Hull Policies on the Ship, including: a i one fourth of the liability incurred by the Member; or ii four fourths of such liability; or iii such other fraction of such liability as may be applicable and has been agreed with the Association; b that part of the Member’s liability which exceeds the sum recoverable under the Hull Policies solely by reason of the fact that the liability exceeds the sums insured under those policies, provided that: i the Member shall not be entitled to recover from the Association any deductible borne by him under the Hull Policies; and ii the cover under this Rule shall exclude liability in respect of persons or property on board the Ship. 2 Unless otherwise agreed between the Member and the Association as a term of the Ship’s entry in the Association, if both ships are to blame, then where the liability of either or both of the ships in collision becomes limited by law, claims under Rule 36.1 shall be settled upon the principle of single liability, but in all other cases claims under this Rule shall be settled upon the principle of cross-liabilities, as if the owner of each ship had been compelled to pay the owner of the other ship such proportion of the latter’s damages as may have been properly allowed in ascertaining the balance or sum payable by or to the Member in consequence of the collision. GuidanceFor more detailed commentary on issues relating to collision claims see Chapter 6 of the Gard Guidance on Maritime Claims and Insurance. (A) …liability…incurred as a result of a collision… (Rule 36.1) Collision liability However, where damage is caused to property belonging to third parties, e.g. to cargo owners, the owner of each ship is liable to such third parties only to the degree that it is at fault for the collision.8Whilst the owners of cargo can also sue both ships, the owners of the cargo carrying ship will in most circumstances be exonerated from liability by virtue of the negligent navigation defence in the Hague and Hague-Visby Rules.9 However, no such defence exists under the Hamburg Rules, which operate on the basis of ‘presumed fault’ on the part of the carrier. In similar fashion, the Rotterdam Rules, although not yet in force, contain no such defence. The shipowner is liable for the negligent acts, defaults and omissions of all persons for whom he is legally responsible, i.e. the officers and Crew, and also for pilots10 and tug operators. The question of whether or not there has been a failure to exercise due care in the navigation of a ship is generally assessed by reference to the International Regulations for Preventing Collisions at Sea 1972, as amended11 (COLREGS), which set out the rules of navigation that all ships registered in countries that have accepted the COLREGS are bound to follow. However, local rules of navigation may also apply in certain ports, harbours, estuaries or tidal rivers and these may take precedence over the COLREGS or, at least, may be taken into consideration by the court when assessing the conduct of each party and the question of fault. A failure to exercise a duty of care in the navigation of a ship may also give rise to other liabilities, such as civil or criminal fines or other penalties for breach of safety regulations imposed, e.g. on the shipowner, master and/or other Crew. However, cover is not available under Rule 36 in respect of such fines or penalties but, depending on the circumstances, it may be available under Rule 47.1. If none of the four categories of fines that are covered as of right under Rule 47.1 are applicable, then the issue will fall to be determined in accordance with the Association’s discretion, as described in Rule 47.2. The owner of a ship who incurs liability as a result of a collision may be entitled to limit his liability under the applicable law for claims that are made against him by the owner of the other ship, e.g. pursuant to the provisions of the London Convention for the Limitation of Maritime Claims, 1976, or the 1996 Protocol to that Convention, or pursuant to domestic rules of law. Furthermore, the owners of such ships may also have a right to limit the liability that they may have to third parties for claims that are made against them by such third parties as a result of the collision, e.g. for loss of life or personal injury, or for loss of or damage to cargo or other property. However, the owners of neither of the ships are normally entitled to include in their (inter-ship) claim against the owners of the other ship any third party liability which exceeds the sum to which they are entitled to limit their liability in respect of such third party claim. Therefore, the claims that are made between the colliding ships inter se will be adjusted on the basis that any rights which are available to either ship to limit its liability for the claims brought against it by third parties will already have been taken into account. P&I cover for collision liability (B) …damages… (Rule 36.1) The injured party is normally entitled to recover only that loss or damage which is the direct and foreseeable consequence of the collision. Furthermore, if the injured party has failed to take reasonable steps to avoid or minimise his loss or damage, i.e. he has failed to mitigate his losses, he will normally be entitled to be compensated only for that loss or damage for which he would have been entitled to receive compensation had he acted reasonably. The damages which are normally recoverable by one party from the other party include: i The reasonable cost of both temporary and permanent repairs to the damaged ship or, where it is beyond economic repair, its insured value, market value or replacement cost; ii The value of lost bunkers or equipment that was on board the damaged ship, or the cost of their replacement or repair if damaged; iii Loss of earnings; iv Liabilities to third parties caused by the collision, e.g. liability in respect of lost or damaged cargo, or personal injury to, or death of, persons that are on board the damaged ship; v Costs and expenses reasonably incurred as a result of the collision, e.g. salvage and general average charges and agents’ and surveyors’ fees; vi Liability to reimburse costs and expenses incurred in respect of any necessary measures that are taken to chart, mark, light, raise, remove or destroy the wreck of the (other) ship which has been lost as result of the collision. (C) …another ship… (Rule 36.1) (D) …such liability is not covered under the Hull Policies on the Ship… (Rule 36.1) The Association considers the Hull Policies which provide cover for hull and machinery risks on English, Scandinavian, American, German, Japanese or French terms and conditions to be on ‘standard terms’. Therefore, if the Ship is insured for hull and machinery risks on other terms and conditions, the Association will need to consider and evaluate such terms and conditions in order to determine whether they constitute ‘standard terms’ for the purposes of this Rule.15 Provided that the Association is satisfied that the Ship has been insured on ’standard terms,’ cover is available notwithstanding the fact that such ‘standard terms’ do not all provide exactly the same scope of cover for collision liability.16 The degree and extent of the cover that is provided varies and a rough comparison can be found at the end of the Guidance to this Rule. (E) …including…one-fourth…or…four-fourths…or…such other fraction… (Rule 36.1.a) The Association may also agree to offer collision liability cover for a proportion other than one-fourth if the proportion of collision liability excluded under the Member’s Hull Policies is not one-fourth. However, such arrangements are unusual. (F) …that part of the Member’s liability which exceeds the sum recoverable under the Hull Policies solely by reason of the fact that the liability exceeds the sums insured under those policies… (Rule 36.b) Where the Member’s collision liability exceeds the sum recoverable under the Hull Policies solely by reason of such a limit on the sum insured, cover is available from the Association for the amount by which the collision liability exceeds that limit. This may occur, e.g. if the Ship has a relatively low value, but has to bear the major proportion of liability for a collision with another ship that has a very high value and is unable to limit that liability under the applicable law. Alternatively, the excess liability cover that is available from the Association under Rule 36 might be required if there was a large claim against the Ship as a result of the salvage or wreck removal of the other ship. It would be contrary to the concept and spirit of mutuality if a Member who fails to insure his Ship for its full market value and who, thereby, runs the risk that there will be a shortfall in the collision liability cover provided by the Hull Policies, could be allowed to remedy this in full by making a claim for the shortfall under his P&I insurance. Therefore, if the Ship is insured under the Hull Policies for a value that is lower than its true market value, i.e. under-insured, cover is available under Rule 36 only for the excess liability which would not have been recoverable under the Hull Policies had the Ship been insured for its true market value.20 Such under-insurance can occur, e.g. if the market value of the ship increases over time, and the shipowner fails to declare a higher value to his hull insurers, or when the owner decides not to declare a higher value, but to increase the share of insurance placed under his hull interest (IV) policy. For example: The cover for collision liability is usually additional to the cover for loss of, or damage to, the insured ship. Therefore, the hull insurers may be liable for double the sum insured if the insured ship becomes an actual or constructive total loss as a result of the collision and the liability of that ship to the other ship(s) equals or exceeds the sum insured. Similarly, if the Hull Policies cover three-fourths of the collision liability, the maximum recovery would be three-fourths of the insured value of the ship. Finally, cover is not available under Rule 36 in circumstances where, although the Member has the right of recovery under the Hull Policies, he fails to make the recovery for some reason, e.g. due to the insolvency of one or more hull insurers. The reason for this is that the Association is not privy to, and has no control over, the manner in which the Member chooses to place his Hull Policies. Therefore, it would be contrary to the concept and spirit of mutuality to require other Members to bear the cost of the Member’s decision to place his Hull Policies on an unsatisfactory basis. (G) …the Member shall not be entitled to recover from the Association any deductible… (Rule 36.1.b proviso i) (H) …exclude liability in respect of persons or property on board the Ship… (Rule 36.1.b proviso ii) (I) …if both ships are to blame… (Rule 36.2) For example: – Ship A is liable to B for USD 9 million (i.e. 60 per cent of the damage to Ship B) – Ship B is liable to A for USD 8 million (i.e. 40 per cent of the damage to Ship A) However, where either or both ships can limit their liability by law, the claims are resolved in accordance with the principle of single liability. This means that the claims will be set off against each other to produce a balance which is payable by one ship to the other. Liability arising as a result of a collision can be even more complicated. For example, if a collision were to occur between ship A and ship B, caused partly as a result of the unseaworthy state of ship A and partly as a result of the negligent navigation of ship B, the following claims might arise: 1 Hull damage to ship A – USD 1 million 2 Damage to cargo on ship A – USD 900,000 3 Hull damage to ship B – USD 4 million 4 Injury to passengers on ship B – USD 3 million Assuming that, pursuant to the Hague-Visby Rules, ship A is entitled to limit its liability for the damage to the cargo that is carried on ship A to the sum of USD 300,000 whilst, pursuant to the Athens Convention, ship B is entitled to limit its liability for injury to passengers carried on ship B to USD 1 million, the claim which ship A will make against ship B is USD 1.3 million and the cross claim which ship B will make against ship A is USD 5 million. If ships A and B are each 50 per cent to blame for the incident, the claims will be adjusted as follows: – Ship A recovers 50 per cent of USD 1.3 million, i.e. USD 650,000 from ship B – Ship B recovers 50 per cent of USD 5 million, i.e. USD 2.5 million from ship A Therefore, ship A is liable to ship B for USD 1.85 million Depending on the tonnage of ship A, ship A may then be able to limit its liability by law (for example under the 1976 Limitation Convention) for the claim brought against it by ship B to a sum lower than USD 1.85 million. However, this principle may not produce a fair result when claims are allocated between the shipowner, his hull underwriters and his P&I club. Consequently, for the purpose of ‘internal settlement’ between the assured and his different insurers, the claim is assessed as if each ship had actually made payment to the other ship of its full share of the other ship’s damages, i.e. on the ‘cross liability’ principle. But, where both ships are damaged as a result of a collision caused by the fault of both ships and one or both of them is/are able to limit its/their liability, the cover that is available from the Association for the Member’s claim is governed by the principle of single liability and not cross liability.24 The reason for this exception is that, under the laws of most jurisdictions, an owner may limit only his net liability, as calculated under the single liability principle, and not his gross liability, as calculated under the cross liability principle. Liabilities covered by Hull Policies – collision with other ships
1 See “P&I cover for collision liability” below and the Guidance to Rule 71. 2 Different countries may apply different criteria for what constitutes a ‘collision’. In the narrow sense a collision is the direct physical contact of the hulls of two or more ships in circumstances where one or both ships are moving. However, there may also be deemed to be a collision if there is physical contact between the equipment of one ship and the hull of another, or where a ship is damaged as a result of an emergency manoeuvre which is taken in order to avoid collision with another ship. 3 See the Guidance to Rule 37 in this regard 4 The International Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, signed at Brussels, 3 September 1910. 5 The general rule under US law is that, if a collision occurs in non-US territorial waters, or if both ships involved in a collision in international waters have the same flag, or if their separate flag states apply the same law, liability and damages are determined according to the relevant non-US law. Consequently, if the collision has occurred outside US territorial waters and the flag states of the ships involved have ratified the Brussels Convention 1910, the US courts are likely to apply the rules of that Convention instead of US domestic rules of law concerning apportionment of liability. 6 If the vessel is bareboat or demise chartered, any liability is likely to rest with the bareboat (demise) charterer rather than the registered owner of the Ship, since the bareboat charterer is responsible for operation of the Ship, including navigation. 7 The Convention determines that each shipowner shall bear his own loss in circumstances where neither ship is considered to be at fault for the collision, e.g. two ships collide as a result of breaking their moorings or dragging their anchors following a sudden, unexpected and irresistible natural phenomenon such as a tsunami. The same principle applies in circumstances where it is impossible to establish who is to blame, e.g. two ships colliding in open sea with the loss of all hands and with no other witnesses or information. 8 Under US law the owners of both ships are also jointly and severally liable in respect of damage to property, including damage to cargo on each ship. In order to avoid certain difficulties which arise in such circumstances the Association has recommended that, even though this clause is probably not enforceable in the US in relation to public contracts of carriage, the ‘Both to Blame Collision Clause’ is included in Bills of Lading and charterparties and a failure so to do may prejudice cover. See the Guidance to Rule 55.b and Appendix VII. More information on this subject can be found in the Gard Handbook on P&I Insurance, 5th Ed., Arendal (2002). 9 See Article IV Rule 2 of the Hague-Visby Rules. 10 Pilots are professional navigation advisors and do not take over the command of the ship from the master while on board. However, there is an exception in the case of pilots in the Panama Canal who, according to local regulations, assume full command of the ship while in transit through the Canal. 11 The Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS). 12 Liability for loss of life or personal injury caused to persons on board the other ship involved in the collision would be covered under Rule 36. 13 See Rules 27, 28 and 29 concerning, respectively, liability in respect of Crew, passengers and other persons carried on board the Ship, Rule 30 concerning liability for persons not carried on board the Ship, as well as Rule 34 concerning liability in respect of cargo on board the Ship. 14 A borderline case may be where a ship comes into contact with a stationary floating offshore vessel on the field, e.g. a shuttle tanker comes into contact with a floating storage and off-taking vessel (FSO). An FSO is stationary so long as it operating on the field, but may have propulsion and the ability to transport oil as cargo off the field. 15 The Association is entitled to request full details of the Member’s Hull Policies either before entry of the Ship or at any time thereafter for the purpose of assessing the premium rating, which may vary considerably due to various factors, e.g. the definition of ‘collision’ in the Hull Policies and whether the hull insurer covers only three-fourths’ collision liability. Under the terms of Rule 7 the Member must notify the Association of any changes in the Ship’s Hull Policies during the period of the P&I entry that can affect the liability exposure of the Association. 16 For example, for there to be a ‘collision’ under the English ITC Hull conditions, there must be physical contact between the hulls of the ships and/or their appurtenances, e.g. an anchor or cargo handling gear. By contrast, under the Nordic Marine Insurance Plan (NMIP), there may be a ‘collision’ in circumstances where a ship causes another ship to run aground as a result of taking avoiding action, without there being physical contact between the hulls of the ships. Furthermore, under the ITC Hulls, the hull insurers cover three-fourths of the assured’s collision liability whereas under the NMIP the hull insurers cover the collision liability in full, albeit limited to the insured value of the insured ship. 17 This is usually the case when the Ship is insured under English terms and conditions 18 Some Members find it beneficial to place full cover with the Association due to the following factors: the collision liability deductible is generally lower than that required by the hull underwriters; the prospect of paying one instead of two deductibles for collision liability; and access to the Association’s letters of undertaking that are widely accepted. 19 The relevant proportion may be e.g. three-fourths of the liability as is the case under ITC Hulls. See footnote 16 above. 20 The true market value is estimated after consultation with Sale and Purchase brokers who have experience of the type of ship in question. 21 See the Guidance to Rules in Part IV Defence Cover. 22 See the Guidance to these Rules. 23 The court will usually also award interest up to the date of judgment. For example, the English courts allow interest on both claims and the single liability is established by subtracting the lower claim plus interest from the higher claim plus interest to produce a net figure. 24 Unless otherwise agreed between the Member and the Association as a term of the Ship’s entry. |
What type of emergency occurs when there is a physical impact between two moving ships resulting in a damaging accident?
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