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A Legal Perspective – Comparative Liability in Maritime Law

Imagine yourself on the bridge of a ship in the English Channel on a mid-December night. It’s cold. Visibility is poor due to fog. This could describe conditions faced by the crews of three cargo vessels one dark night about twenty years ago. The three would meet in the Channel’s shipping lanes… with two of them colliding.
The litigation that followed would be complex and would show how the principle of comparative liability works in maritime law. Comparative liability means that blame is divided according to each vessel’s actions.

The collision occurred in the early morning hours of December 14, 2002 off the coast of Dunkerque, France, not very distant from the beaches of the D-Day landings in June 1944. The three ships found themselves in uncomfortably close quarters on this fateful winter night as they converged at a brisk pace.
Like race horses driving hard on a dark track, two of the ships emerged from the east. The Bahamas-registered containership Kariba was steaming at 16 knots on a westbound heading. Following close behind on a nearly parallel heading was the Norwegian-registered Tricolor. Tricolor was only about half a mile astern to starboard, closing the gap quickly at 17.9 knots.
The Kariba was 576 feet long with a capacity of 1,200 standard containers. She left from Antwerp, Belgium and was headed for Le Havre, France. The 623-foot Tricolor was a roll on/roll off (RO/RO) ship with a capacity of 3,000 cars. She had departed Zeebrugge, Belgium and was bound for Southampton, England.
From the south, a third vessel Clary was steaming north at 13 knots on an intercept course with Kariba. Clary was a Singapore-registered 454-foot bulk carrier sailing from Savannah, Georgia to the Netherlands You could picture the headings of the vessels roughly forming a letter “T,” Clary being the vertical trunk and the westbound trajectories of Kariba and Tricolor forming the top.
At around 2:00 am, the navigation watch of Kariba realized from their radar that Clary was only about 3 miles away. Going out to the bridge wing for a visual confirmation, they didn’t see Clary. Around this time, Kariba executed a 10-degree turn to starboard. Shortly afterwards, another 20-degree turn to starboard was made.
After the 20-degree starboard turn, the lights of Tricolor appeared before the bridge crew Kariba, a sight that would strike terror into the hearts of any bridge crew. They executed a turn hard to starboard but it was too late. Kariba’s bow struck Tricolor broadside. The RO/RO ship listed and sank. Fortunately, no one was lost in the collision.
The lower court piled all the blame on Kariba. However, the U.S. Court of Appeals for the Second Circuit looked at things differently. The appeals court agreed with the lower court about Kariba’s role, but it did not feel Kariba was solely responsible for the collision.
The appeals court revisited COLREG 13 (Collision Reg). The rule states that an overtaking vessel is to stay out the way of the vessel being overtaken. Tricolor was gaining on Kariba quickly, doing about two knots faster. The court pointed out that Tricolor knew she was the overtaking vessel.
Despite being aware of the fog and realizing Kariba was on a collision course with Clary in the crowded traffic separation scheme, Tricolor did not reduce speed. A traffic separation scheme, or TSS, is a designated lane for ships to use in crowded waters. The aim is to reduce the risk of collision, just as with air traffic corridors for planes in the congested skies surrounding airports.
The appeals court also examined COLREG 6 about safe speed, as well as COLREGs concerning maintaining a proper lookout. The court determined that Clary’s bridge was undermanned.
Aside from showing that the English Channel could be an inhospitable stretch of water to negotiate on a dark and foggy night, the decision shows that collisions can be complex matters. And when they involve more than two vessels, the complexity is further compounded.
The court’s decision also shows that things aren’t always “all or nothing” when it comes to fault. Instead, the principle of comparative liability holds that there could be enough blame to go around for everyone involved, depending on their actions.
And on a happier note, instead of blame to go around as in this court case, may all of you experience enough joy to go around instead. We wish all of you the best for a safe, bright, and wonderful Holiday Season! Tim, Erol
Ref: Otal Investments, Ltd. v. MV Clary, U.S. Court of Appeals, Second Circuit, 2006, Docket No. 06-0591 et al, Otal Investments Ltd, as Owner of M/V Kariba, for Exoneration from or Limitation of Liability, Plaintiff-Third-Party-Plaintiff-Appellant