Extra First Class COC Courses (Part “A”)

Subject: A1- Law of the Sea & Maritime Law

Student Name and Number: Praveen Kumar, TMI/EFCE/2019/01

ASSESSOR: S. G. Deshpande

Date of Submission: 03.04.2019

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(a) Introduction:
In case of collision between ships, each ship is legally liable to other ship for
compensation of loss or damage to other ship. International Convention for the
Unification of Certain Rules of Law with respect to Collisions between Vessels,
known as 1910 Brussel’s convention deals with responsibility of ships to
compensate other ship’s loss or damage.

Main body:
When a collision occurs between two ships in any waters territorial, internal or high
seas, the compensation due to damages caused to the ships, her property and
persons on board shall be settled in accordance with following provisions of 1910
Brussel’s convention.
- If the collision is accidental, if it is caused by force majeure, or if the cause of
collision is doubtful, the damages are borne by those who have suffered
them.
- If the collision is caused by the fault of one ship, the ship which has
committed the fault is liable to make good the damages of other ship.
- If both ships are in fault, the liability of each ship is in proportion to the
degree of fault committed respectively. Provided that if it is not possible to
establish the degree of fault with regard to circumstances, or if it appears
that the faults are equal, the liability is apportioned equally.

Apportionment of blame- In the 1910 Brussel’s convention, there is a direct relation

between degree of fault and liability degree. The apportionment of blame is arrived
at by expert professionals from their assessments. Assessments are based on
compliance with collision regulations and evidences collected from the ships.
For example, consider a case of collision between ships A & B. A is held responsible
for 60% of loss or damage to B and B is responsible for 40% of loss to A. So if A’s
loss is US$100000, B is liable to compensate to A, a sum of US$40000. Similarly if
B’s loss is US$200000, A will be liable to B for an amount of US$120000.

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Conclusion:
Above sections describe responsibility of ships to each other in various
circumstances of collision under 1910 Brussel’s convention. It also states that
liability is directly related to apportionment of blame.

(b) Introduction:
There are two legal regimes governing international shipping and trade namely-
1. The United Nations Convention on the Law of the Sea, UNCLOS III 1982 as
amended
2. International Convention on Certain Rules concerning Civil Jurisdictions in
matters of Collision, 1952 Brussel’s convention
In the succeeding sections, article 97 of UNCLOS and first four articles of 1952
Brussel’s convention shall be described with two major differences.

Main body:
UNCLOS article 97- In matters of collision or any other incident of navigation of
ships on high seas involving penal or disciplinary responsibility of the master or crew
of the ship.
- Flag state shall have authority to order arrest or detention of the ship for
purposes of investigation.
- Flag state or state of nationality of such persons shall institute judicial or
administrative proceedings.
- Certificate of competence (COC) issuing state shall be competent to
withdraw certificates of such persons after due legal process.
1952 Brussel’s convention- In matters of collision occurring between seagoing ships
or between seagoing ships and inland navigation ships. An action can be
introduced,
- before the court (admiralty court) where the defendant has his habitual
residence or place of business.
Or,
- before the court where arrest has been effected of the defendant ship or of
any other ship belonging to the same defendant (shipowner or charterer)
which can be lawfully arrested.

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Or,
- Before the court of place of collision when the collision has occurred in
territorial or inland waters of a contracting state.
- The convention shall also apply to an action for damage caused by one ship
to other ship, her property or persons on board such ships, through
manoeuvre or not, or through non-compliance with collision regulations even
when there is no actual collision.

Differences-
1. UNCLOS article 97- In matters of collision or any incident of navigation on
high seas, flag state shall have the authority to order arrest or detain the ship
for the purposes of investigation. Flag state or state of residence of her
master and crew shall institute judicial or administrative proceedings. COC
issuing state shall be competent to withdraw certificates of such persons if
offence is committed on a foreign flag ship.
1952 Brussel’s convention on penal jurisdiction- In matters of collision on
high seas or within territorial or internal waters of a contracting state, action
can be introduced before courts of any contracting state and judiciary
proceedings can be instituted.
2. UNCLOS article 97- The ships involved in collision or any incident of
navigation shall only be arrested or detained for the purposes.
1952 Brussel’s convention on penal jurisdiction- Another ship belonging to
the same defendant ship owner or charterer can be lawfully arrested.

Conclusion:
The preceding sections describe the relevant articles of both the legal regimes and
clarify two major differences between the two.

(c) Introduction:
Consider a scenario of two different collisions. Two ships collide inside the channel
of a port of a state. Other two ships collide on the high seas. In the succeeding
sections, for each case UNCLOS and 1952 Brussel’s convention shall be referred to
and rights of states to conduct penal proceedings, investigation and disciplinary

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actions in respect of master and crew shall be explained. Pollution to marine

environment aspect shall not be considered.

Main body:
Case I- Ships A and B collide inside the channel of a port, in a state LMN

UNCLOS- State LMN has the right to conduct investigations, penal proceedings and
disciplinary actions. The reason is that the collision occurs within its territorial or
inland waters and on such waters, it has sovereign rights. So coastal state
authorities shall have the right to arrest or detain the ship as a measure of
investigation, institute judicial or administrative proceedings against the offending
ship, her master and crew under the national laws and regulations. The flag states
and states of such nationals shall be notified of the investigation and proceedings.
1952 Brussel’s convention on penal jurisdiction- State LMN has the right to conduct
investigations, penal proceedings and disciplinary actions. The reason is that the
collisions occurs within its territorial or inland waters. Therefore, action can be
introduced in the court of place of collision, judicial proceedings can be instituted
against the offending ship, her master or crew under the domestic law and
regulations. The flag states and states of such nationals shall be notified of the
proceedings through diplomatic agent or consular officer.

Case II- Ships X and Y collide on the high seas

UNCLOS- Flag state shall have the authority to order arrest or detention of the ships
as a measure of investigation. Flag state or state of nationality of master and crew
shall institute administrative proceedings. COC issuing states shall be competent to
withdraw certificates of such master and crew after due legal process even if they
are not their nationals.
1952 Brussel’s convention on penal jurisdiction- Arrest or detention of the ships,
judicial proceedings can be instituted by the court of any contracting state where the
defendant has habitual residence or place of business.

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Conclusion:
The above explains penal proceedings, investigations and disciplinary actions in
respect of master and crew under both conventions for different situations of
collision.

(d) Introduction:
There is a series of liability and compensation regimes governing international
shipping. Convention on Limitation of Liability for Maritime Claims or LLMC is one
such convention for liabilities arising out of collision damages to another ship.

Main body:
There are two categories of liability under LLMC-
1. Claims for loss of life or personal injury
2. Property claims such as damage to other ship, her cargo, property, harbor
works etc.
Under this convention, shipowners can limit their liability except if it is proved that
the loss resulted from his personal act or omission with the intent to cause such a
loss, or recklessly and with the knowledge that such loss would probably result. So
the shipowner can face unlimited liability if the plaintiff (claimant) proves that the loss
resulted from defendant’s negligence or default.
The limit of liability depends on gross tonnage of the ship or passenger carrying
capacity of a passenger ship. The limits for personal claim is double than that of
property claim.
Strict liability (absolute liability)- It is the legal responsibility for damage, injury even if
the person found strictly liable was not at fault or negligent.
LLMC is not a strict liability convention. CLC, Fund convention, Bunker convention
are strict liability conventions (because of unlimited liability for oil pollution damage).
Because LLMC convention does not impose strict liability on the ship owner to pay
compensation for loss or damage. The amount of compensation that a court is able
to award is limited by LLMC.

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Conclusion:
The preceding sections describe Convention on Limitation of Liability for Maritime
claims, its applicability, limitations and circumstances.

References:
1. B. K. Saxena and S. G. Deshpande, A1- Law of the Sea and Maritime Law
Notes, January 2018, Tolani Maritime Institute.
2. United Nations Convention on the Law of the Sea.
3. Register of Texts of CONVENTIONS AND OTHER INSTRUMENTS
CONCERNING INTERNATIONAL TRADE LAW, Volume II, UNITED
NATIONS New York, 1973.