As its name suggests, the clause is designed to respond to the situation of claims
arising from a collision in which both ships are to blame. If cargo on one of the ships
is damaged, the cargo-owner (or its insurer) is usually unable to sue the carrying
ship, which can rely on the “nautical fault” defence in Art. 4, r. 2(a) of the Hague or
Hague-Visby Rules, which excuses the carrier from liability arising or resulting
from: “Act, neglect or default of the master, mariner, pilot, or the servants of the
carrier in the navigation or in the management of the ship.” Unless the collision was
caused by some unseaworthiness of the carrying ship for which the carrier was
responsible, the carrier can generally rely on the Art. 4, r. 2(a) defence to a claim
brought against it by those with interests in cargo damaged in a collision. A
navigational error by the master or crew leading to a collision is the paradigm
example of the “nautical fault” defence: a negligent act for which the carrier itself
bears vicarious, but not personal, liability. Because the carrying ship is not liable for
the damage to the cargo, the owner or insurer of that cargo must look elsewhere for
redress. The obvious course of action is to sue the owner of the other ship involved in
the collision, which was at least partly responsible for the damage suffered by the
cargo as a result of the collision.
However, the Brussels Collision Convention of 1910
47 introduced a system of
proportionate liability for maritime collisions, long before similar regimes were
adopted into the land-based law of torts of some countries.
48 Under a proportionate
liability system, each tortfeasor can be held liable only to the extent of its responsibility for the harm caused. That was the position under English law even before the
U.K. adopted the 1910 Brussels Collision Convention,
49 and it was enshrined in
Article 4 of the Convention, which provides:
If two or more vessels are in fault the liability of each vessel is in proportion to the degree of
the faults respectively committed. Provided that if, having regard to the circumstances, it is
not possible to establish the degree of the respective faults, or if it appears that the faults are
equal, the liability is apportioned equally.
When the Convention applies, if there is a collision between ship A and ship B in
which ship A is 75% to blame and ship B 25% to blame, Article 4 produces the result
47 International Convention for the Unification of Certain Rules of Law with Respect to Collisions
1910 (Brussels Collision Convention).
48 For example, the states and territories of Australia introduced proportionate liability for economic
loss or property damage (but not personal injury) in the first decade of the twenty-first century: see
Civil Law (Wrongs) Act 2002 (ACT) Ch 7A; Civil Liability Act 2002 (NSW) ss 34–39; Proportionate Liability Act 2005 (NT) Pt 2; Civil Liability Act 2003 (Qld) ss 28–33; Law Reform
(Contributory Negligence and Apportionment of Liability) Act 2001 (SA) Pt 3; Civil Liability Act
2002 (Tas) Pt 9A; Wrongs Act 1958 (Vic) Pt IVAA; Civil Liability Act 2002 (WA) Pt 1F. In
contrast, the U.K. still has a system of joint and several liability for property damage and economic
loss: see Civil Liability (Contribution) Act 1978 (U.K.), s. 3.
49 The Milan (1861) Lush. 388; 167 E.R. 167; Owners of Cargo of S.S. Tongariro v. Owners of
S.S. Drumlanrig (The Drumlanrig) [1911] A.C. 16. These pre-Convention cases allowed the cargoowner to recover 50% of its loss from the non-carrying ship, equal division in all cases being the
Admiralty rule before the Convention.
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M. Davies
arising from a collision in which both ships are to blame. If cargo on one of the ships
is damaged, the cargo-owner (or its insurer) is usually unable to sue the carrying
ship, which can rely on the “nautical fault” defence in Art. 4, r. 2(a) of the Hague or
Hague-Visby Rules, which excuses the carrier from liability arising or resulting
from: “Act, neglect or default of the master, mariner, pilot, or the servants of the
carrier in the navigation or in the management of the ship.” Unless the collision was
caused by some unseaworthiness of the carrying ship for which the carrier was
responsible, the carrier can generally rely on the Art. 4, r. 2(a) defence to a claim
brought against it by those with interests in cargo damaged in a collision. A
navigational error by the master or crew leading to a collision is the paradigm
example of the “nautical fault” defence: a negligent act for which the carrier itself
bears vicarious, but not personal, liability. Because the carrying ship is not liable for
the damage to the cargo, the owner or insurer of that cargo must look elsewhere for
redress. The obvious course of action is to sue the owner of the other ship involved in
the collision, which was at least partly responsible for the damage suffered by the
cargo as a result of the collision.
However, the Brussels Collision Convention of 1910
47 introduced a system of
proportionate liability for maritime collisions, long before similar regimes were
adopted into the land-based law of torts of some countries.
48 Under a proportionate
liability system, each tortfeasor can be held liable only to the extent of its responsibility for the harm caused. That was the position under English law even before the
U.K. adopted the 1910 Brussels Collision Convention,
49 and it was enshrined in
Article 4 of the Convention, which provides:
If two or more vessels are in fault the liability of each vessel is in proportion to the degree of
the faults respectively committed. Provided that if, having regard to the circumstances, it is
not possible to establish the degree of the respective faults, or if it appears that the faults are
equal, the liability is apportioned equally.
When the Convention applies, if there is a collision between ship A and ship B in
which ship A is 75% to blame and ship B 25% to blame, Article 4 produces the result
47 International Convention for the Unification of Certain Rules of Law with Respect to Collisions
1910 (Brussels Collision Convention).
48 For example, the states and territories of Australia introduced proportionate liability for economic
loss or property damage (but not personal injury) in the first decade of the twenty-first century: see
Civil Law (Wrongs) Act 2002 (ACT) Ch 7A; Civil Liability Act 2002 (NSW) ss 34–39; Proportionate Liability Act 2005 (NT) Pt 2; Civil Liability Act 2003 (Qld) ss 28–33; Law Reform
(Contributory Negligence and Apportionment of Liability) Act 2001 (SA) Pt 3; Civil Liability Act
2002 (Tas) Pt 9A; Wrongs Act 1958 (Vic) Pt IVAA; Civil Liability Act 2002 (WA) Pt 1F. In
contrast, the U.K. still has a system of joint and several liability for property damage and economic
loss: see Civil Liability (Contribution) Act 1978 (U.K.), s. 3.
49 The Milan (1861) Lush. 388; 167 E.R. 167; Owners of Cargo of S.S. Tongariro v. Owners of
S.S. Drumlanrig (The Drumlanrig) [1911] A.C. 16. These pre-Convention cases allowed the cargoowner to recover 50% of its loss from the non-carrying ship, equal division in all cases being the
Admiralty rule before the Convention.
162
M. Davies