by the Hague Rules by virtue of COGSA, because it attempts to excuse the carrier
from the consequences of its own negligence, which is regarded as contrary to public
policy in the United States. Thus, if the cargo on ship A is being carried on a bill of
lading or sea waybill subject to the US COGSA, the indemnity its owner or insurer is
required to give by the Both-to-Blame Collision Clause is not enforceable. In other
words, the clause is a waste of space and ink in any bill of lading or sea waybill.
Admittedly, there are a few U.S. cases at trial-court level which hold that the
Both-to-Blame Collision Clause is enforceable in cases of “private carriage”, meaning carriage under a charterparty not governed by COGSA by its own force.
55
However, this does not mean that the Both-to-Blame Collision Clause is still an
essential requirement for contracts involving carriage to or from the United States,
for several reasons.
First, no appellate court of any precedential standing has ever held that the clause
is enforceable in “private carriage” cases, so its applicability in such cases is not
exactly firmly established in the United States.
Secondly, courts in the United States do not routinely apply the American
principles of joint and several liability to a “both to blame collision” involving
foreign-flagged ships. If both ships involved in a collision are flagged in Convention
countries, a U.S. court will apply the Brussels Collision Convention to determine the
division of responsibility (and hence its rule of proportionate liability), rather than
principles of U.S. maritime law.
56 For example, in Otal Investments Ltd v. M/V
Clary,
57 the U.S. Court of Appeals for the Second Circuit held that the Brussels
Collision Convention should be applied to apportion liability in relation to a collision
on the high seas between a Bahamian-registered ship and a Norwegian-registered
ship when the Bahamian-registered ship tried to avoid a Singaporean-registered ship,
because all three ships were registered in countries party to the Convention. The
decision was significant because the court held that the Convention requires comparison of both fault and causative significance on the part of the colliding ships,
58
55 See, for example, Allseas Maritime, S.A. v. M/V Mimosa, 574 F.Supp. 844, 853 (S.D.Tex. 1983);
Alamo Chemical Transport Co. v. M/V Overseas Valdes, 469 F.Supp. 203, 215 (E.D.La. 1979);
American Union Transport, Inc. v. U.S. 1976 AMC 1480 (N.D.Cal. 1976); In re Complaint of
Murmansk Shipping Co, 2002 AMC 2495, 2498–2500 (E.D.La, 2002).
56 In re Seiriki Kisen Kaisha, 629 F.Supp. 1374 (S.D.N.Y. 1986) applying the Brussels Collision
Convention to a collision between a Cayman Islands-flagged ship and a Japanese-flagged ship on
the high seas); La Seguridad de Centroamerica S.A. v. MV Global Mariner, 2002 AMC 1999
(S.D.N.Y. 2002) (applying the Brussels Collision Convention to a collision between a U.K.-flagged
ship and a Cyprus-flagged ship on the Orinoco River in Venezuela); MAN Ferrostaal, Inc. v. MV
Vertigo, 447 F.Supp.2d 316, 2006 AMC 2187 (S.D.N.Y.) (applying Brussels Collision Convention
to collision between Jamaican-flagged ship and Liberian-flagged ship in Danish waters because all
relevant countries other than Liberia, including Denmark, were party to the Convention). See
generally, Morris (2007), p. 132.
57 494 F.3d 40, 2007 AMC 1817 (2d Cir. 2007).
58 To the same effect, see The Miraflores and The Abadesa [1967] 1 A.C. 826.
164
M. Davies
from the consequences of its own negligence, which is regarded as contrary to public
policy in the United States. Thus, if the cargo on ship A is being carried on a bill of
lading or sea waybill subject to the US COGSA, the indemnity its owner or insurer is
required to give by the Both-to-Blame Collision Clause is not enforceable. In other
words, the clause is a waste of space and ink in any bill of lading or sea waybill.
Admittedly, there are a few U.S. cases at trial-court level which hold that the
Both-to-Blame Collision Clause is enforceable in cases of “private carriage”, meaning carriage under a charterparty not governed by COGSA by its own force.
55
However, this does not mean that the Both-to-Blame Collision Clause is still an
essential requirement for contracts involving carriage to or from the United States,
for several reasons.
First, no appellate court of any precedential standing has ever held that the clause
is enforceable in “private carriage” cases, so its applicability in such cases is not
exactly firmly established in the United States.
Secondly, courts in the United States do not routinely apply the American
principles of joint and several liability to a “both to blame collision” involving
foreign-flagged ships. If both ships involved in a collision are flagged in Convention
countries, a U.S. court will apply the Brussels Collision Convention to determine the
division of responsibility (and hence its rule of proportionate liability), rather than
principles of U.S. maritime law.
56 For example, in Otal Investments Ltd v. M/V
Clary,
57 the U.S. Court of Appeals for the Second Circuit held that the Brussels
Collision Convention should be applied to apportion liability in relation to a collision
on the high seas between a Bahamian-registered ship and a Norwegian-registered
ship when the Bahamian-registered ship tried to avoid a Singaporean-registered ship,
because all three ships were registered in countries party to the Convention. The
decision was significant because the court held that the Convention requires comparison of both fault and causative significance on the part of the colliding ships,
58
55 See, for example, Allseas Maritime, S.A. v. M/V Mimosa, 574 F.Supp. 844, 853 (S.D.Tex. 1983);
Alamo Chemical Transport Co. v. M/V Overseas Valdes, 469 F.Supp. 203, 215 (E.D.La. 1979);
American Union Transport, Inc. v. U.S. 1976 AMC 1480 (N.D.Cal. 1976); In re Complaint of
Murmansk Shipping Co, 2002 AMC 2495, 2498–2500 (E.D.La, 2002).
56 In re Seiriki Kisen Kaisha, 629 F.Supp. 1374 (S.D.N.Y. 1986) applying the Brussels Collision
Convention to a collision between a Cayman Islands-flagged ship and a Japanese-flagged ship on
the high seas); La Seguridad de Centroamerica S.A. v. MV Global Mariner, 2002 AMC 1999
(S.D.N.Y. 2002) (applying the Brussels Collision Convention to a collision between a U.K.-flagged
ship and a Cyprus-flagged ship on the Orinoco River in Venezuela); MAN Ferrostaal, Inc. v. MV
Vertigo, 447 F.Supp.2d 316, 2006 AMC 2187 (S.D.N.Y.) (applying Brussels Collision Convention
to collision between Jamaican-flagged ship and Liberian-flagged ship in Danish waters because all
relevant countries other than Liberia, including Denmark, were party to the Convention). See
generally, Morris (2007), p. 132.
57 494 F.3d 40, 2007 AMC 1817 (2d Cir. 2007).
58 To the same effect, see The Miraflores and The Abadesa [1967] 1 A.C. 826.
164
M. Davies