KEY questions regarding liability when ships collide at sea have been addressed during the annual conference of the Maritime Law Association of Australia and New Zealand (MLAANZ).
This year’s event coincides with the MLAANZ 50th anniversary.
Specialist shipping consultant Harry Hirst, himself a master mariner, lawyer and a fellow of the Nautical Institute, addressed the conference.
He said the question of who was liable and to what degree after an accident went beyond totalling the number of ‘faults’ each party may have committed.
Rather, it was about establishing 'causative potency' or blameworthiness to explain how the incident happened before apportioning damages.
“It’s a qualitative, not quantitative, assessment,” Mr Hirst said.
A starting point for any investigation into ship collisions is the 1910 Brussels Convention which emphasises that liability depends on the degree of culpability attached to each fault committed by each party to the incident.
Not all faults are causative and some actions taken by mariners may be “causative” but not “culpable”, Mr Hirst noted, for example, actions taken in extremis or “the agony of the moment”. Causation of the incident must be established without the benefit of hindsight.
“It’s only causative faults which are culpable that give rise to liability,” Mr Hirst said.
“A kneejerk reaction taken under extreme circumstances might be causative but it’s not necessarily culpable.”
Illustrating the principles of collision liability, Mr Hirst referenced the infamous 2017 collision in the Singapore Straits between the Arleigh-Burke class destroyer USS John S McCain and the oil tanker Alnic MC.
In an extraordinary and damning sequence of events while the vessels were virtually abeam with the destroyer overtaking the tanker on its port side, the McCain transferred steering control from one module to another.
Seemingly due to a lack of training, the crew erroneously believed the ship had lost steering control.
At the same time, the McCain’s bridge ordered a slower speed but—again through lack of training—only the port engines responded, sending the McCain across the Alnic’s path, resulting in the collision.
Although the Alnic was found to have made faults, some in the last 41 seconds before the collision, these were not causative or culpable, Mr Hirst commented.
In a straw poll at the conference, just one attendee nominated the McCain 100 per cent responsible for the collision in which 10 sailors died, 46 were injured and resulted in damages of US$185 million.
Under the Brussels principles, the McCain was totally culpable for the incident, contrary to a finding of the US Navy vessel’s 80 per cent liability by the New York Appeal Court which heard an appeal from a US District Court decision.
“Sometimes even courts get it wrong,” Mr Hirst concluded.