was one for “private contract” carriage under a charterparty; and (2) that charterparty
did not incorporate COGSA by reference because of a Clause Paramount; and (3) at
least one of the colliding ships was flagged in the United States. There may be some
cases that satisfy all three of these criteria (although the arbitrators of the SMA have
decided none since 1963) but they will surely be very, very, few. It seems easy to
conclude that the Both-to-Blame Collision Clause is not exactly essential, even for
trade to or from the United States.
In some contracts, the Both-to-Blame Collision Clause is not only unnecessary, it
may actually be counterproductive. The clause is often included in time
charterparties, even though it makes little sense there, given that it imposes the
indemnity obligation on the owner of the damaged goods, which is not usually a
party to the charterparty.
64 Some time charterparties, such as Supplytime, which is
widely used for offshore supply vessels servicing oil and gas exploration activities,
contain “knock for knock” clauses, under which each of the contracting parties
undertakes to bear its own losses and not to seek redress from the other, no matter
who was to blame for the injury or loss sustained.
65 A Both-to-Blame Collision
Clause is flatly inconsistent with such a scheme,
66 but nevertheless one appears in
the 2005 version of the Supplytime form.
67 The clause has been removed for that
very reason from the 2017 version of the form.
68
The Brussels Collision Convention has been adopted in 83 countries, including
most countries where a “both to blame” collision case is likely to be litigated,
including Argentina, Australia, Belgium, Brazil, Canada, China, Cyprus, Denmark,
Egypt, Finland, France, Germany, Greece, India, Ireland, Italy, Japan, Malaysia,
Malta, Mexico, the Netherlands, New Zealand, Nigeria, Norway, Poland, Portugal,
Russia, Singapore, Spain, Sweden, Turkey, and the U.K.
69 Although the Convention
itself contains a choice of law provision (Art. 12) stating that the Convention applies
to a collision only when “all the vessels concerned belong to” adopting countries,
most adopting countries have simply adopted the operative provisions of the Convention without the threshold choice of law provision,
70 and so apply the Convention’s proportionate liability rule as if it were a mandatory procedural law of the
64 See, e.g., NYPE 2015, cl. 33(b).
65 See Williams (2015) and Rainey Simon (2015).
66 See the commentary by Steamship Mutual, “Supplytime 05: BIMCO Finalises Its Revision of
Supplytime 89” (2006), available at https://www.steamshipmutual.com/publications/Articles/Arti
cles/Supplytime1205.asp.
67 Supplytime 2005, cl. 27.
68 BIMCO, Supplytime 2017 with explanatory notes (2018).
69 Comité Maritime International (2016), pp. 367–370.
70 For example, Merchant Shipping Act 1995 (U.K.), s. 187; Navigation Regulation 2013 (Austl.),
r. 15; Marine Liability Act 2001 (Canada), ss. 16, 17. The legislation in New Zealand specifically
provides that it applies to all ships, whether or not registered in New Zealand, if the New Zealand
court has jurisdiction over the case: see Maritime Transport Act 1994 (N.Z.), s. 92.
166
M. Davies
did not incorporate COGSA by reference because of a Clause Paramount; and (3) at
least one of the colliding ships was flagged in the United States. There may be some
cases that satisfy all three of these criteria (although the arbitrators of the SMA have
decided none since 1963) but they will surely be very, very, few. It seems easy to
conclude that the Both-to-Blame Collision Clause is not exactly essential, even for
trade to or from the United States.
In some contracts, the Both-to-Blame Collision Clause is not only unnecessary, it
may actually be counterproductive. The clause is often included in time
charterparties, even though it makes little sense there, given that it imposes the
indemnity obligation on the owner of the damaged goods, which is not usually a
party to the charterparty.
64 Some time charterparties, such as Supplytime, which is
widely used for offshore supply vessels servicing oil and gas exploration activities,
contain “knock for knock” clauses, under which each of the contracting parties
undertakes to bear its own losses and not to seek redress from the other, no matter
who was to blame for the injury or loss sustained.
65 A Both-to-Blame Collision
Clause is flatly inconsistent with such a scheme,
66 but nevertheless one appears in
the 2005 version of the Supplytime form.
67 The clause has been removed for that
very reason from the 2017 version of the form.
68
The Brussels Collision Convention has been adopted in 83 countries, including
most countries where a “both to blame” collision case is likely to be litigated,
including Argentina, Australia, Belgium, Brazil, Canada, China, Cyprus, Denmark,
Egypt, Finland, France, Germany, Greece, India, Ireland, Italy, Japan, Malaysia,
Malta, Mexico, the Netherlands, New Zealand, Nigeria, Norway, Poland, Portugal,
Russia, Singapore, Spain, Sweden, Turkey, and the U.K.
69 Although the Convention
itself contains a choice of law provision (Art. 12) stating that the Convention applies
to a collision only when “all the vessels concerned belong to” adopting countries,
most adopting countries have simply adopted the operative provisions of the Convention without the threshold choice of law provision,
70 and so apply the Convention’s proportionate liability rule as if it were a mandatory procedural law of the
64 See, e.g., NYPE 2015, cl. 33(b).
65 See Williams (2015) and Rainey Simon (2015).
66 See the commentary by Steamship Mutual, “Supplytime 05: BIMCO Finalises Its Revision of
Supplytime 89” (2006), available at https://www.steamshipmutual.com/publications/Articles/Arti
cles/Supplytime1205.asp.
67 Supplytime 2005, cl. 27.
68 BIMCO, Supplytime 2017 with explanatory notes (2018).
69 Comité Maritime International (2016), pp. 367–370.
70 For example, Merchant Shipping Act 1995 (U.K.), s. 187; Navigation Regulation 2013 (Austl.),
r. 15; Marine Liability Act 2001 (Canada), ss. 16, 17. The legislation in New Zealand specifically
provides that it applies to all ships, whether or not registered in New Zealand, if the New Zealand
court has jurisdiction over the case: see Maritime Transport Act 1994 (N.Z.), s. 92.
166
M. Davies