The word collision is used to indicate any instance of one boat or craft striking against another and includes, even if there is no contact, any damages a boat may cause as the result of a manoeuvre. Until the Maritime Navigation Act of September 2014, collisions where regulated differently depending if the boats involved where Spanish or foreign. Since September 2014, the regulations established in the Agreement for the unification of collision rules, signed in Brussels on 23 September 1910, is applied to all cases. Before then, the national legislation applied when no foreign boat was involved in the collision. In this article, we will take a look at the basics of liability in the event of a collision and at how to proceed when involved in such accidents.
I.- Liability in the event of a collision
The law says that the party responsible for causing the accident is liable for any damages. The party asking for compensation must prove the other party's negligence in causing the accident. If both parties were negligent, each party is liable for the damages in proportion to their degree of negligence in causing the collision. When, due to the circumstances of the accident, it is impossible to establish a degree of negligence, or when the two sides are equally at fault, both are liable in equal measure. It is important to notice that when more than one boat causes damages to another, each is liable for the damages in proportion to their degree of negligence, however, all parties that caused the accident are jointly liable for the damages. For example, if a boat enters a port at high speed and its wake causes the collision and damages to two moored boats. This is a case of collision without contact. The boat that entered the port at excessive speed is responsible for the incident. However, if one of the two boats did not have authorisation to moor or did not adopt the required protection measures, it will be a case of shared liability.The rules to determine which party is responsible for a collision are set by the International Regulations for Preventing Collisions at Sea (COLREGs). This agreement also sets the rules of pass and manoeuvre in different situations and the lights and signals that boats and vessels must have. On small vessels, normally, signals are not used, for example sail and motor boats, or vessels not under command or not anchored, cases that could be problematic as not using signals can cause errors. Recently, in the Volvo Ocean Race a collision between a yacht, VESTAS, and a fishing boat caused a fatality. Without knowing the details, we can say that a sailing boat has priority on a motor boat, but not on an operating fishing boat or when approaching any boat from behind. On one hand, the fishing boat apparently had no lights on – many fishing boats that operate in the area don't – and therefore was negligent. On the other hand, however, it appears that VESTAS, competing in the regatta and 30 miles from the finishing line, was sailing at very high speed. This kind of boats can easily reach a speed of 18-20 knots. COLREGs refers to safety speed, defining it as the speed at which a vessel can safely navigate taking into account both internal and external factors. Was VESTAS navigating at a safe speed? An unfortunate and very complex case to resolve.
II.- Formalities and claims
No specific formalities are required to report an accident; however, it is important that the vessels involved provide a report of what happened. We should mention that all ships and vessels are required to contract civil liability insurance that, among other things, in case of collision covers the damages caused to the other vessel. It is a third-party liability insurance, which means that it does not cover any damages incurred by the insured boat if it is responsible for the accident. Therefore, it is best to provide an amicable report of the incident, signed by the parties involved in the collision, including all the details. This report will be used to determine, should there be any doubt, which party is responsible. Should there be no contact between the parties and no amicable report – something that happens quite often – it is essential to identify the flag and registration number of the vessel, and the details of any witnesses of the accident. Any information collected in relation to the accident will be useful for a future claim.
III.- Civil liability insurance and direct action
Spanish laws require whoever carries out activities that may pose a risk to third parties or property, to contract civil liability insurance. This type of insurance covers any compensation due to third parties but not any damages incurred by the insured vessel. In Spain, insurance is regulated by Royal Decree 607/1999, of 16 April, approving the Regulations for the compulsory civil liability insurance for leisure and sports vessels, which sets a minimum limit of €96,000 for material damages, i.e. damages to the other vessel, and €120,000 per victim. These amounts are quite low, but by increasing slightly the premium it is possible to increase the cover significantly. The insurance expressly covers damages caused by collisions between vessels, with or without contact. The law regulates what it defines as "direct action", meaning that the damaged party can make its claim directly to the party responsible for the collision. And the claim can be made directly to the insurance company. Identifying the insurance company, however, can be a problem. Ideally, parties should exchange their insurance information. It is important to note that if a party does not duly provide such information and a dispute follows, their insurance will pay the other party if their negligence is proven, however, the company may ask compensation from the insured if their failure to provide the information caused additional damage.
IV.- What to do in the event of a collision
Obviously, before even thinking about who will have to pay for the damages, the first thing to do after an accident is make sure people are brought to safety and avoid any further damage. After that, it is important to assess the damages and establish the causes of the accident or responsibility. Providing an amicable report of the facts is the ideal solution, however, the parties may disagree on the dynamic of the accident, therefore, identifying any witnesses who may be able to help establish what happened can make the difference. Even if a party admits responsibility, their insurance will want to know exactly how the accident took place and, once the responsibility has been established, may not cover the damages because it interprets the facts in a different way. In this case, the insured will have no other choice but to take its insurance company to court as the insurer's responsibility is not a binding factor for the insurance company, but it is for the insured towards the victim. Whether responsibility for the accident is determined or not, it is important to evaluate the cost of the reparations. If one of the parties and their insurance company accept to pay the damages, they will send an expert to make an assessment. If there is a disagreement on the extent of the damages caused by the accident and the cost of the necessary repairs, a formal assessment process will be initiated, and each party will appoint an expert. If no agreement is reached, a third expert will be called to resolve the dispute. If the vessel entitled to compensation is insured for own damages, the owner has two choices:
- Make the claim to their own insurance company;
- Make the claim to the owner of the vessel responsible for the accident or directly to their insurance company.
V.- Disputes, jurisdiction and seizure of the vessel
In Spain, Mercantile Courts have jurisdiction over any dispute. When a collision occurs in Spanish waters, even if foreign vessels are involved, Spanish courts are competent to resolve the matter whether or not the claim is made in the location where the vessel owner responsible for the accident is domiciled. When direct action is taken against the insurance company, it is important to take into consideration that almost all large insurance companies have affiliates in Spain, which makes things much easier and avoids any disputes on jurisdiction. It is important to take into consideration the fact that maritime laws allow anyone who believes they have been damaged in a collision to request and obtain a court order to seize the vessel responsible until it presents a guarantee for the payment of the repairs. The procedure is quick and simple, as the claimant is only required to claim credit rights as consequence of a collision caused by the vessel. The procedure is regulated by the International Convention on Arrest of Ships 1999 is very useful when the vessel in question is foreign and its departure could complicate a possible claim. Seizure of the vessel may be a necessary measure to put pressure on a party that refuses to provide the details of their insurance company and the owner is from a country outside the EU.