Observations on the Judgment of the Commercial Court of Cannes Dated November 28, 2014
Case No. 2014f00071
“Despite what the defendants plead, Rule 2(a) of the aforementioned COLREGs, which concerns responsibility taken as a whole, clearly states that nothing in these Rules shall exonerate either a vessel, or its owner, master, or crew from the consequences of any neglect to comply with any precaution required by the ordinary practice of seamen or by the special circumstances of the case. It must be considered that by towing its tender with a 100 to 200m long cable, in a location very close to the coast and very busy, Lady Joy did not comply with the general rule of prudence in paragraph (a) of Rule 2 of COLREGs and has, therefore, engaged its responsibility in the collision that led to the sinking of Isarole III.”
Collision in Cannes Bay: Application of Rule 2(a) of COLREGs
By a judgment dated November 28, 2014, the Commercial Court of Cannes declared a Motor-yacht 80% responsible for a collision by characterizing fault within the meaning of Rule 2(a) of the International Regulations for Preventing Collisions at Sea (COLREGs). This judgment, although not of general scope, is nonetheless of great practical interest.
A collision occurred on June 15, 2011, between a pleasure craft and a commercial Motor-Yacht, 157’ long, flying the Marshall Islands flag, towing its 12-meter tender with an approximately 120-meter line, submerged and clearly unmarked.
Similar to the facts that led to the Triton II judgment (Court of Appeal of Aix-en-Provence, October 4, 2012, vessel Triton II, No 11-20400, DMF 2013 n°746, observations Pierre BONASSIES), the collision occurred near the Lérins Islands in Cannes Bay. At the moment of its passage over the line, the vessel “Isarole III” had its underwater hull caught by the said line while its hull capsized under the tension of the line, throwing 3 of the vessel’s crew members overboard.
The collision caused significant damage to the vessel “Isarole III”. The vessel’s owner, the crew members on board, and its insurer sued the owner of the vessel “Lady Joy” and its captain. The vessel’s insurer voluntarily intervened in the proceedings.
The practical interest of this judgment lies in the legal basis used by the Commercial Court of Cannes to hold the vessel “Lady Joy” responsible.
The fault of the “Lady Joy” is assessed in light of the precautions required by the ordinary practice of seamen or the special circumstances of the vessel.
The legal regime of collision is based on the proof of a vessel’s fault. The assessment of fault is made by reference to COLREGs. These rules establish general safety obligations for seafarers.
In this case, the M/Y “Lady Joy” was likely to have committed several faults under the provisions of COLREGs. The plaintiffs invoked the violation of the starboard priority rule (Rule No. 15) or a lack of visual and auditory lookout (Rule No. 5). Proving the alleged faults faced difficulties in the administration of evidence. The GPS of the vessel “Isarole III” having been destroyed in the collision, it was therefore impossible to be certain about the course followed by the collided vessel.
Under these conditions, the Court determines the fault of the M/Y “Lady Joy” by reference to Rule 2(a) of COLREGs. This rule, which we believe must be reproduced in extenso, states:
Rule 2 – Responsibility
a) “Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”
This rule, drafted in very general terms, establishes a general obligation of prudence for seafarers by reference to the standard of ordinary seamanship and the special circumstances of the vessel.
By deciding to tow its tender in a highly frequented bay, the Court ruled “that the Lady Joy did not comply with the general rule of prudence in paragraph (a) of Rule 2 of COLREGs and has, therefore, engaged its responsibility in the collision that led to the sinking of Isarole III.”
It is in consideration of the circumstances of the collision, characterized by the towing of a 12-meter vessel with a partially submerged 120-meter line in a bay that records more than 1000 vessel movements per day, that the fault is qualified.
The Court considered that this maneuver was likely to create confusion between the said tow and a self-navigating unit, which de facto constituted a fault due to imprudence contrary to Rule 2(a) of COLREGs. In any case, the maneuver undertaken by the “Lady Joy” was dangerous or at least unsuitable for the situation in which the vessel found itself.
The Commercial Court of Cannes thus reminds that each maneuver must be adapted to each situation, taking into account in particular the wind, the state of the sea, the weather, and the surrounding maritime traffic.
The “assessment of fault by reference to the ordinary practice of seamen and the special circumstances of the vessel leaves the trial judges broad discretion.”
In a fault-based liability regime without presumption of liability as defined by Article 6 of the International Convention for the Unification of Certain Rules of Law relating to Collisions between Vessels dated September 23, 1910, Rule 2(a) of COLREGs allows the judge to qualify a fault by reference to a general rule of prudence.
Excerpts from the Judgment of the Commercial Court of Cannes
« Facts, procedures and claims of the parties
On June 15, 2011, Mr. Alain JOLY, having departed from the Port of Mandelieu La Napoule at the helm of ISSAROLE III, with his wife Mrs. Eliane JOLY and Mesdames Claudy DUMILIEU and Annie MARTIN on board, attempted to pass between the yacht Lady Joy, which had also departed from the port of Cannes, and its tender, then under tow, which were navigating on his port side on a converging trajectory, to avoid a collision.
In doing so, Isarole III became entangled in the towing line, was struck by the tender, and capsized, its passengers falling into the sea.
A witness, the captain of the SIRENUSE launch, then came to their rescue, picking up two shipwrecked women and a dog, whom he then entrusted to the care of the firefighters who arrived on the scene.
(…)
THEREFORE, considering that:
(…)
On responsibilities:
Article L.5113-3 of the Transport Code stipulates that if the collision is caused by the fault of one of the vessels, the repair of damages falls to the one who committed it, and that if the collision is accidental, if it is due to a case of force majeure, or if there is doubt about the causes of the accident, the damages are borne by those who suffered them, without distinguishing whether the vessels, or one of them, were at anchor at the time of the collision. It is in light of the provisions of the International Regulations for Preventing Collisions at Sea (COLREGs) that the responsibilities for the Collision should be apportioned.
Article 13 COLREGs is worded as follows:
- « a) Notwithstanding anything contained in the Rules of Sections I and II of Part B, any vessel overtaking any other vessel shall keep out of the way of the vessel being overtaken.
- b) A vessel shall be deemed to be overtaking when coming up with another vessel from a direction more than 22.5 degrees abaft her beam, that is, in such a position with reference to the vessel being overtaken, that at night she would be able to see only the sternlight of that vessel but neither of her sidelights.
- c) When a vessel is in doubt as to whether she is overtaking another vessel, she shall assume that this is the case and act accordingly.
- d) Any subsequent alteration of the bearing between the two vessels shall not make the overtaking vessel a crossing vessel within the meaning of these Rules or relieve her of the duty to keep “clear of the overtaken vessel until she is finally past and clear.”
Article 15 of the said regulation states that “When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.”
And its Article 16, “Every vessel which is directed to keep ‘out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear.’
To do this, it seems necessary to reconstruct the sequence of events through testimonies and depositions.
Firstly, the allegations and testimonies of the parties, which obviously cannot have probative force for their own defense if they are not corroborated by any third-party testimony, nothing in the file confirms or refutes Lady Joy’s signaling, by means of the regulatory black diamond, that it had a vessel in tow, even if serious doubts arise from the fact that the only witness, himself a professional seaman, did not see any signaling. It is not disputed that the shipwrecked vessel was navigating to the starboard of the yacht Lady Joy.
The captain of the said yacht declared in his note of protest that, being at the helm, through the open door of the starboard passage of the bridge, he had seen the plaintiffs’ vessel approaching from 22.5° on his starboard side.
This precision in orientation, besides being at least implausible since it is neither demonstrated, nor even reported or claimed, that this measurement would be the result of reading a navigation instrument, is incompatible with the crew’s statements that they saw ISAROLE III approaching from astern.
If that had been the case, for the captain to have had it in sight, he would have had to have a view towards the stern of his vessel, which, given the plans produced, appears impossible and would have required abandoning his forward lookout and, even while navigating at approximately 10 knots, would constitute a fault of which it would be ill-advised to avail himself.
Indeed, it appears that the location was very busy, which, in June, is typical for the Gulf of Napoule and particularly for Cannes Bay,
Two situations were possible concerning the piloting of Lady Joy: either the captain, then at the helm, used all onboard instruments for his navigation, or he did not use them.
In the first case, to have Isarole III in visual approach, he necessarily had to suspend monitoring his onboard instruments, which is contrary to the elementary rules of prudence enacted by COLREGs in that this relaxation would not have allowed him to observe that the compass bearing of Isarole III, which was approaching, did not change appreciably, regardless of its approach angle. In doing so, he contravened Rule 7 of COLREGs.
In the second case, he committed an infringement of Rules 5 and 7(b) of COLREGs. The first obliges every vessel to maintain a continuous lookout by using all available means appropriate to the prevailing circumstances and conditions, so as to enable a full appraisal of the situation and of the risk of collision. The other specifies that if there is operational radar equipment on board, it must be used appropriately by plotting or by equivalent systematic observation of detected objects.
Similarly, it is inoperative, and in no way likely to exonerate its captain, to invoke the fact that Lady Joy would have been difficult to maneuver due to the towing of its tender, Rule 6 of COLREGs stating as a general rule that every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions. If, as pleaded, its speed did not allow it to stop immediately without risk of collision with its tender running on its way, it had the obligation to reduce its speed unless it allowed the said tender to navigate autonomously as it declared it had done when leaving the port.
Furthermore, by taking its tender in tow, apparently too early, with a hawser either too short for its speed or long enough that other vessels, due to traffic density, could not immediately distinguish that it was a convoy, Lady Joy clearly did not take all precautions required by the ordinary practice of seamen or the special circumstances of the vessel, as imposed by Rule 2(a) of COLREGs, which is of general scope. Invoice dated November 30, 2010, from NATIONAL MARINE SUPPLIERS, exhibit no. 24 of the defendants, of which they only submitted a free translation, contrary to what was requested of them, relates to two items: the first, hardess line back nylon double braid 1-1/2 “x 70 ft, the second, tow line – 12 strand plasma 7/8” x 240 ft. The defendants translate these items respectively as nylon double braid towing bundles 1-1/2 “x 70 feet and plasma 7/8” x 240 feet tow line.
The captain’s statements, which indicate a bright color, and the photographs in the expert report show that the tow line damaged during the sinking is not black but orange, which naturally excludes the first item invoiced. If the invoice actually concerns the material damaged in the sinking, this observation implies that the hawser used was 240 feet long, or a little over 73m, and not 70 feet as emphasized by the defendants.
However, this length does not match either the initial statements made by the captain to the Maritime Gendarmerie, which mention a length of 100m, nor the note of protest authored by him, which is even further off, indicating 120m. This naturally leads to considering the produced invoice as non-probative and to not accepting the defendants’ allegations on this matter.
Furthermore, the defendants are ill-advised to plead both that liability in collision matters is liability for proven fault and to impute this liability to the captain of the opposing vessel based solely on assumptions, particularly concerning his course at the time of the collision.
Despite what the defendants plead, the aforementioned Rule 2(a) of RIPAM, which concerns responsibility taken as a whole, clearly stipulates that none of the provisions of RIPAM shall exonerate either a vessel, its owner, its master, or its crew from the consequences of any neglect regarding any precaution required by the ordinary practice of seamen or by the particular circumstances of the vessel. It must be considered that by taking its tender in tow with a cable 100 to 200m long, in a location very close to the coast and very busy, Lady Joy did not comply with the general precaution instruction of paragraph (a) of Rule 2 of RIPAM and, as a result, engaged its responsibility in the collision that led to the sinking of Isarole III. Indeed, since it claims that the towing made it difficult for the towing vessel and its tow to alter their course, it should have displayed, in the most visible place, not only the double cone it alleges to have displayed, but also two balls framing the double cone above and below, as prescribed by Rule 27(b)(ii) of RIPAM, which it does not indicate having done.
Consequently, Isarole III, which believed itself, rightly or wrongly, to have priority, could not have known that the vessel whose path it was about to cross would consider itself unable to maneuver. Furthermore, the fact that, in a busy roadstead, the towed vessel was navigating about a hundred meters behind its tug is clearly likely to cause confusion between the said tow and a self-propelled unit, which constitutes a fault due to imprudence contrary to Rule 2(a) as stated above. Moreover, attempting “to avoid the collision by consciously cutting a towing cable appears impossible to imagine, especially from a vessel that possesses a much higher speed capacity than the one it is about to cross, whereas this capacity easily allows it to pass ahead or to avoid it” with even greater ease, as the paths of two vessels tend, in an overtaking situation, to become parallel. This is even truer for a port turn aimed at cutting across the path of a vessel that would be followed, at a much higher speed, on an almost parallel course.
Besides the fact that “it was in its natural direction since it had its destination in sight, Isarole III’s maneuver, evidently desperate—otherwise, it would be suicidal against all reason”, is sufficient to demonstrate that it was following a path almost perpendicular to that of Lady Joy, whose captain states that Isarole III’s approach angle was 22.5° on its stern quarter, necessarily had the obligation to let it pass or else, on the unproven condition that the said angle was slightly greater than 22.5°, to at least have serious doubt and behave as if the paths were crossing and, in accordance with Rule 13(b) of RIPAM, consider itself as an overtaking vessel.
Furthermore, in his statement to the Maritime Gendarmerie as well as in his note of protest, the captain indicates that he not only stopped at the last moment, i.e., belatedly, but even reversed, which necessarily had the effect of giving the impression that the towed tender was autonomous in that, from that moment, maintaining its headway, it remained in motion unlike the stopped tug.
However, even if it must be concluded that the faults leading to the collision are primarily attributable to Lady Joy, Isarole III is not entirely without fault.
Indeed, although the speed at the collision site was not limited, it was clearly excessive given that the traffic density during the period in question and at that location required observing a more moderate speed than the over 20 knots at which, according to its own statements, it was navigating, and which accentuated the violence of the impact with the tow and the tender, even though, again according to these statements, it was maintaining its headway at the moment of impact. Similarly, given the speed difference between the two vessels and the fact that they had been in sight of each other for a sufficiently long time considering the prevailing visibility, it appears that the best maneuver to help avoid collision, prescribed by Rule 17(b) of RIPAM, would have been to cross ahead of Lady Joy’s path and not, as was done, astern of it, which was only possible by turning to port, in violation of Rule 17(c) which stipulates that to avoid collision by its maneuver alone, the stand-on vessel shall not, if circumstances permit, turn to port when the other vessel is on its port side.
If, however, the prescribed maneuver could not be performed under the circumstances of the collision, it is evident that “it could have been if a more prudent speed had been maintained by Isarole III”.
In consequence of the foregoing, reason dictates attributing 80% of the fault to Lady Joy, whose errors made the accident possible, and 20% to Isarole III, whose imprudence aggravated the consequences.