Based on the ruling of December 16th, 2011
1. Collision Liability
Steerage Fault from the Striking Ship
The mechanism of liability regarding collision requires proof of the fault. Case law supports this rule. For instance, the Court of Appeal in the reported ruling refused to admit a presumption of fault in the absence of an attributable proved fault against a ship running that collided with another ship moored alongside.
More exactly, the liability scheme regarding collision works as follows:
- If no vessel is at fault, the collision will be called “fortuitous” if due to a force majeure, or “questionable” if there are doubts about the causes of the accident. In both cases, damage will be borne by those who suffered from it.
- If the collision is caused by the unique fault of one of the ships, “responsibility for repairing the damage is borne by the person who committed it”.
- If there is “common fault” of the vessels involved in the collision, “the responsibility of each is proportional to the severity of the respectively committed faults”. In this last hypothesis:
- If the faults appear equivalent in the production of damage or if their respective proportion cannot be established, the responsibility is shared equally.
The proof of facts can be established by any means.
Steerage Fault from the Striking Ship
The fault may find its source in the conduct of the vessel, but whatever the source, the proof of the fault has to be provided. This is supported by case law, which considers that mere statements by one of the parties are insufficient to prove an omission’s fault.
Such was the case in the judgment of December 16, 2008, where the lapse of a minute between the motor stop and the shock (supposed causal fault of the collision and allegedly sufficient delay to allow the captain of the striking ship to avoid the shock) was not considered sufficient to satisfy the proof requirement. There was no objective evidence brought to assess the circumstances of the facts (position relative to the wind, ship speed, distance between the ships, etc.).
Fault in the Maintenance of the Striking Ship
The fault of the striking ship may be proven through evidence of poor maintenance or failure to monitor, which contributes to the engine failure that causes the collision. However, objective evidence must be presented regarding the ship’s ability to avoid the collision.
For example, it has been held that the fact that a broken-down vessel restarts after a filter cleaning does not demonstrate that improper maintenance or lack of supervision caused the motor failure leading to the collision. In the same case, the Court of Appeal excluded fault by relying on the ship’s maintenance log, which attested to regular and proper maintenance procedures (in any case not at fault).
2. The Proposal for a Regulation
The proposed regulation does not deprive the striking ship’s owner of the right to plead the absence of the conditions required to engage responsibility as governed by the provisions of Law No. 67-545 of July 7, 1967. It is also not equivalent to an admission of liability, even if a deposit check has not been recovered.
The recognition of damage and its measure does not imply an obligation to repair it following a collision. For instance, an agreement between experts (instructed by both parties to the dispute) on the amount of repairs does not prevent the owner of the striking ship from pleading the absence of the conditions of liability in court.
3. The Probative Value of the Sea Report
The sea report contains, in addition to meteorological and nautical information, all the important events concerning the ship and its navigation, as well as potential damages sustained or caused. It ends with an assertion by the captain, which makes the document real and sincere. These documents benefit from a presumptive validity unless proven otherwise.
Beyond this obligation, the captain must, upon arrival, transmit the documents to the competent authority for certification. Additionally, if extraordinary events concerning the ship, passengers, or cargo occurred during navigation, the captain must prepare a detailed report within 24 hours of arrival.