LLM Degree Maritime Law Collision Scenario - Essay Example

? LLM Degree Maritime Law Collision Scenario Introduction For many decades, rules have been put forward to for the sole purpose of preventing collusions at sea, with the statutory rule being established in the last 18th century. In the year 1840, the London Trinity House came up with a set of laid down regulations which were enacted in parliament in the year 1846. One of the rules spelt out a requirement for a steam vessel that was passing another one in a channel that was narrow to leave the other one on her own port land. The second rule that relates to steam ships required steam vessels on different courses to pass on different port sides to reduce the risk of collision. The London Trinity House also laid down a rule for vessels under sail, which required sailing vessels on the tack to give way for a vessel on the starboard tack. This was followed by a collusion of the two Trinity rules of steam vessels through an 1846 act of parliament that saw their inclusion in the Navigation act. In 1858, there was an addition to the Navigation act which saw the addition of regulations on colored side lights for sailing vessels and fog signals for both sailing and steam vessels. In 1863 however, there was a complete change to the Navigation act which saw a new set of rules drawn by the British Board of Trade in consolation with the French government: vessels that were meeting end-on or near end –on were to alter their course to starboard. Every vessel that was overtaking another was to keep away from the vessel being overtaken. By the end of the year 1864, these regulations and others were adopted by over 30 maritime countries including the United States and Germany as Maritime articles.1 1Simon Baughen, Shipping Law (London: Routledge, 2009), 21. The year 1880 saw minor changes to the articles with a requirement for whistle signals to be given by steam vessels as a way of indicating the direction they were taking and therefore avoid collision. 1884 also saw a minor addition of an article that specified the signals that could be used by a vessel in distress, thus bringing the total number of articles to 27. In 1889 for the first time, there was a conference in Washington that sought to consider the regulations for collision at sea. New provisions were put in place requiring a stand on vessel to keep her speed and course. Vessels were also to avoid crossing in front of the other vessel and steamship permission to carry a second white light was also included. Another Maritime conference was held in 1910, which mainly insisted on the Washington regulations with only some minor changes. Another international conference on Safety of life at Sea was held in 1948, which saw minor revisions which came into effect in 1954. This was followed by another international conference in 1960 that saw an addition of a new paragraph in the exiting regulations and better definition of the wordings. In 1972 COLREGs, the article was designed to replace the collision Regulations of 1960. There were several minor changes that were made in the Collision acts in the years following 1972 until in 1995 when the Merchant Shipping Act was introduced, that sought to consolidate the shipping acts from 1894-1995 and other enactments. Convention on International Regulations for Preventing Collisions at sea (1972) governs the Merchant Shipping Act on all water crafts, either personal or public, which is classified as a ship.2 2Susan Hodges, Law Of Marine Insurance (London: Routledge, 1996), 23. Main 1. Who do colregs apply to? This is well stipulated in rule of the preventing sea collisions convention which defines the application of the rules as: these rules apply to all vessels upon the high seas and the waters that are connected with navigable seagoing vessels. Nothing in the rules so specified shall interfere with the special rules that have been made by any authority. Nothing in the rules shall interfere with the special rules that may have been made by the government or any particular state. Traffic separation schemes may be adopted by the organization for the purpose of these rules. Whenever a particular government has determined a vessel, special construction shall not comply with these rules that a government have set forth and are closer to COLREG. Invictus is a foreign vessel in British waters, belonging to the Beijing authorities, which is on its way to New York. COLREGS regulations apply if there are no exceptions to all vessels connected with navigable seagoing vessels. Invictus is therefore bound by the COLREGS as a vessel in the high seas. 2. Will the Invictus be a ship as defines under colregs? Yes, it’s because according to COLREG regulations, a vessel refers to a water craft and sea planes that are used or can be used as a means of water transportation. Invictus is described as a general cargo vessel and therefore fits in the COLREG definition as a ship. 3. Rules-defines the steering and sailing rules. Regulation 5 stipulates on look out. Every vessel at all times is required to maintain a proper outlook by sight and hearing (lights and signals) as well by all visible means that are appropriate in the prevailing circumstances and conditions as a way of making a full appraisal of the system and risk of collision. Regulation 6 of the COLREG is based on speed. The Rosaline (1981) was a case of a vessels accident. The Rosaline and Eleni V were vessels equipped with radars. The two vessels were proceeding in opposite directions, the Rosaline at a speed of 14 knots and Eleni V at a speed of about 13 knots. There was dense fog which contributed to poor visibility at the time and the two vessels became aware of each other when at only 6 miles away with neither of them reducing their speed. When only a few miles apart, the Eleni V put her port apart, bringing her across the track of the Rosaline which resulted to a collision. The Rosaline struck the Elaine V in a way that destroyed her into two parts resulting to severe loss of her cargo of fuel oil. It was held that the two ships were at fault, as they were not being navigated as per the Colregs 1972 regulation 6 on speed, which clearly stipulates that every vessel shall proceed at a safe speed able to take appropriate action to avoid collision and be stopped at an appropriate distance to prevailing circumstances and conditions. Regulation 7 takes a look on the risk of collision like the case of the Salatuna accident. As defined, every vessel shall use all possible available means in particular circumstances. It also lays down on the proper use of radar equipment. If fitted and operational, assumptions should also not be possibly made on scanty radar information. Two conditions should also be put into account as a way of determining whether the risk of collision exists: the risk shall be deemed to exist if the compass bearing of a particular bearing of approaching vessel does not change. The risk may be present even when the bearing appreciably changes especially if the approaching vessel is at very close range. In this case, the master of the Inviticus was well aware of the faulty radar and therefore more care should possibly have been taken. According to the Colregs, there are several regulations that govern an approaching vessel such as the vessel’s conduct in visibility that is restricted and the conduct of vessels in any state of visibility. Restricted visibility Colregs regulation applies to vessels that are not in sight of each other when navigating within an area of limited visibility. Where a vessel detects the presence of another vessel by radar alone, she shall determine if a close quarter’s situation exists and determine how to avoid a collision. Collision should be avoided within an ample time through alteration of the course and in the process avoid alterations of course other than the vessel being overtaken, and the alteration of a vessel towards a vessel abeam or abaft a beam. 4. Criminal Liability Maritime offenses have for a long time been dealt with by the maritime shipping act of 1995 through its regulations. The 219 regulation in the MSA 1995 laws down various provisions regarding damage to a light house. It stipulates that a person, who without authority intentionally destroys a light house or any lights exhibited in it, commits an offence. In light of what happened in the Invictus, the captain explains that the light house was destroyed as he was trying to evade an approaching vessel, the Argon. The merchant shipping Act of 1995 was amended to become the Merchant shipping regulations in 1996, where on collusion, it suggested that any vessel or class of vessels by virtue of rule 38 of the international regulations should take a serious action. The secretary of state however exempts any ship from these regulations in terms of number, position and sound signalling. 5. Civil Liability A master of a particular ship which is involved in destruction of a lighthouse should take several steps: where the damage has been caused by the ship, the master of the ship of the ship shall report the damage within 24 hrs. A breach of the contract where the ship is liable results to a one hundred pounds fine from the marine authorities. The proof of causation refers to the legal burden on the claimant on the basis of a balance of probabilities and therefore it’s for the claimant to show that the defendant’s wrong caused the loss. In the case of the Inviticus, it is the defendant while the Sandford lighthouse is the claimant. In proof of causation therefore, the claimant is supposed to show prove of the damage. 6. Defenses A ship that destroys a light house accidently while trying to evade a more serious problem such as a collision with another vessel is not held responsiblefor liability of the damage. Conclusion In line with the Colregs law regulations however, a vessel that has non functional radar with the knowledge of its owners should not be at sea. From the report of the master of the ship, its evident that damage to the light house could have been prevented by repairing the radar of the cargo ship immediately the fault was reported. The owners of the ship are therefore liable for destroying the lighthouse. Report 2 Define salvage Brice defines salvages as a right that arises when a volunteer -meaning he does not have any contractual existing legal duty to act, preserves or contributes to preserving any vessel at sea, cargo, freight or any other recognized subject of salvage that is prone top danger. Brice definition is known to refer to civil salvage but not military salvage. Kennedy on the other hand defines salvage as a service that helps to save a particular subject from danger from which it cannot free itself unaided. The act of rendering the service may be voluntary based on the interests of the salvor. Modern day marine salvage consists of three main principles that basically define the scope: the first principle refers to a situation where there is eminent danger at sea that concerns a marine peril.3 The second principle refers to the salvor voluntarily rendering the service, which is based upon the successful completion, and the salvor will be awarded. In such a case, the first principle is based on Petrotech UK Oil Company which poses an environmental peril at sea. The second principle relates to Rodento voluntarily agreeing to render the service of salvage and clearly laying down the options for Petrotech Ltd. The third principle in this case is not met as the process of salvage is not successfully completed, but instead results to environmental degradation and wants Rodento to take full liability on the basis of negligence.4 3Sheppard Mandaraka, Modern Maritime Law: And Risk Management (London: Routledge, 2007), 25. 4Naval Marines, Internatlonal Regulatlons For Preventing Colllslons At Sea, Web. April 21, 2013.< http://www.stormy.ca/marine/colregs/> MAIN: 1. Contract under LOF 2000 The LOF 2000 was published in September 2000 in a new format that is both clear and concise. It saw the inclusion of a scope clause –no cure no pay, especially because there is no specific compensation agreed for any maritime salvage. Since there is no stipulated amount laid down in the maritime salvage, the salvor has therefore to submit to maritime law for his remuneration. In this sense therefore, the payment is recoverable under the maritime law and not on the contract. The no cure no pay therefore implies that the contract is immaterial in determining payment, since this can only be breached at through the maritime contract or in court arbitration. The LOF 1980 provided a safety net for salvors responding to loaded oil tankers requiring safety assistance. The safety net guaranteed that the salvors expenses would be paid in the event that the salved property was insufficient to provide for a normal salvage award. Additionally, the salvor received an increment of up to fifteen percent if he successfully avoided or reduced the extent of pollution. The LOF 1990 specified several provisions on pollution and danger on the environment. It requires the salvor to use his best interest to not only to prevent the escape of oil as per the regulation in LOF 1990, but also to prevent and minimize damage to the environment during the salvage operation. Oil may escape during salvage operations of oil tankers that are wholly or partly laden with oil. The prevention of oil pollution during salvage operations is thus a consideration as a major factor that enhances the ultimate reward of a salvagor. When operations of an oil tanker are not successful, the efforts of the salvor will therefore fall outside the provisions. Damage to the environment will therefore refer to substantial physical damage to human life or to marine life and the ones adjacent to these. Article 14 entitles the salvor for a special compensation even if the rescue operations fail, but this will be accompanied by limited expenses as provided by the article. In this case therefore, Rodento should be able to prove that the pollution to the environment was not as a result of their negligence, as they had already advised Petro city on the right crane to be used. Incase they are not guilty, full compensation should be made on the argument of no negligence. 2. Salvor (entitled to some payment – after LOF 1980 After the LOF 1980, several provisions were amended and indicated the position of the salvor in terms remuneration. Although remuneration was still on a no cure no pay basis, it provided for a safety net and compensation for a salvor. For a salvor who worked in a ship and who successfully succeeded in oil tanker salvage and minimization of environmental oil pollution, 100 percent of the renumeration is offered. Where the action of a court by using maritime law rules out that the salvor was not negligent in causing damage to the environment through pollution, the salvor can also receive 100 percent of the renumeration. The special net provides for 30 percent of remuneration, where the salvor is unsucccessful in providing salvage and in addition does not succed in minimizing environmental pollution through oil pollution. 3. Was this salvage? In the case of Rodento v Petrotech oil UK, it was a case of maritime property since the environmental pollution occurred at the beach, leading to death of marine life as a result of the oil spill. Its only maritime property that can be saved, and it takes the traditional categories of a ship, cargo or freight. The Petrotech city vessel falls under the maritime property classification of a cargo on board a vessel. Basically, a cargo is subject to salvage irrespective of whether is owned by the ship owner or a third party and whether it is carried under the bill of landing. The Petrotech UK Ltd cargo was not saved from danger. This is because the salvor, Rodento has requested to use a special type of crane which would translate to a higher charge for the salvage, which Petrotech refuted on grounds that the risk to the environment would only be minimal. The Rodento proceeded using a standard crane where in the process; one of the bulkheads was destroyed resulting to as significant oil spill. Voluntary means that the salvage was not rendered under any preexisting agreement or under an official duty or purely for the purpose of self preservation. In the case of Rodento, the salvage was voluntary since it specified that it was carried as per the LOF 2000 requirements, which take in voluntary service as a key principle. 4. a. relevant waters The English law limited salvage assitance to tidal waters with a later provision taking into account any navigable water. Salvage is therefore subject to coastal and inland waters that are navigable or any water relating to the above thereto. B.who can be salvors? A salvage claim can be made by the owners of the vessel rendering assistance. It may also be made by the crew of the salving vessel or by any other person who renders personal assistance or who gives permission for his property to be used in the process of rendering assistance. 5. Success The element of success is implicit in the general law in relation to the salvage. The degree of success in salvage can take several forms such as both the cargo and the property are salvaged; only the property is saved, only the cargo is saved, and part of the property and part of the cargo is salvaged. In the case of the Rodento vs Petro city, part of the property and part of the cargo are salvaged as its only one part of the bulk head that is destroyed in the process of salvage. ART12 SCHED 11 MSA 1995 No cure no pay-In Admilatry commissioners v M/V VALVERDA, there was no recovery of the cargo. It was possible to contract out of the statutory provisions and deprive them on the basis of a waiver. The provisions are therefore procedural rather than substantive in nature, thus suggesting they are capable of a waiver. It deals with payment and distribution of funds to claimants in the proportion of their established claims. On this note therefore, the salvor is paid 100 percent, where full recovery of cargo and property is made and 30% under the special net provision. Oil pollution The LOF 1980 introduced two concepts of enhanced reward and safety net. Both concepts relate to only salvage or attempted salvage of oil tankers that are laden wholly or in part with a cargo of oil. LOF 1989 clause (1) imposes a duty on a salvor to use its best endeveours to prevent the escape of oil from a vessel while performing the service of salving. The salvor should therefore take full responsibility of ensuring minimal risk to the environment, which comes with an ultimate reward. The LOF of 1980 provided safety nets which were payable only to the ship owners, with the salvor awarded the reasonably incurred expenses and a fifteen percent profit element. The articles 13 and 14 of the 1989 convention take on the criteria for fixing the compensation and the special compensation. In 1992, the Nagasaki Spirit collided with ocean Blessing at a time when the Nagasaki was partly laden with a cargo of crude oil. As a result, part of the oil was spilled into the sea and a collision resulted, which led to the two ships being engulfed in fire. Semco agreed to salvage the remaining part of the Nagasaki under the salvage convention provisions. Salvage convention art 8(1) It looks at the duties of the salvor to the owner of the vessel and the property in danger such as to carry the duty of salvage with due care. Carrying out the duty with due care minimizes the damage to the environment. Whenever circumstances dictate so, it seeks the assistance of other salvors on request by the owner, provided the amount of reward shall not be prejudiced.5 Conclusion In the case of Rodento vs. Petrocity, the salvor was not guilty of negligence. He had warned the cargo owners of a likelihood of environmental loss if a special type of crane was not used. 5IMO, International Maritime Organization, Web. Web. April 21, 2013. Bibliography Baughen, Simon. Shipping Law. London: Routledge, 2009. Hodges, Susan. Law Of Marine Insurance. London: Routledge, 1996. Mandaraka, Sheppard. Modern Maritime Law: And Risk Management. London: Routledge, 2007. Naval Marines. Internatlonal Regulatlons For Preventing Colllslons At Sea. Web. April 21, 2013.< http://www.stormy.ca/marine/colregs/> IMO. International Maritime Organization. Web. Web. April 21, 2013> . Read More