Saturday, 15 March 2014

Breach of Collision Regulations: The Different Prospective Under the MSA 1995

The regime applicable to the breach of Collision Regulations has changed radically over the past century. Section 419(4) of Merchant Shipping Act 1894 provided as follow:

Where in a case of collision it is proved to the court before whom the case I tried, that any of the Collision Regulations have been infringed, the ship by which the regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the court that the circumstances of the case made departure from the regulation necessary.

This provision had been removed today, so that the presumption of fault by mere breach of COLREGs no longer exists. In fact, according with s. 187(4) of MSA 1995:

Nothing in this section shall operate so as to render any ship liable for any loss or damage to which the fault of the ship has not contributed.

Thus, the parties which allege an infringement of Collision Regulations, must also prove that such infringement was triggered by negligence and it caused or at least contributed to the collision (i.e. causation in fact). The “causation in fact” principle is well described by Mandraka in Modern Maritime Law: “the question to be asked in each case is essentially this: did the failure to observe the particular regulation set in motion or contributed to a chain of circumstances which resulted in the collision, or was there an intervening factor which broke this chain and that factor was in fact the real cause of the collision incident?”
What does intervening factor – or actus novus interveniens – mean? What is the amount thereof to breach the chain of causation which resulted in collision? In The Oropesa 1 , Wrigth J stated:
“The question is … whether there was a
new cause. I think that is what Lord Sumner emphasized
in The Paludina. To break the chain of causation it must be
shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the
sequence of events, something which can be described as either unreasonable or extraneous or extrinsic.”

The onus of proof is therefore reverted so that no strict liability arises by breach of Collision Regulations alone. In The Heranger 2, the House of Lord stated, “the onus is on the party setting up a case of negligence to prove both the breach of duty and damage. This, ordinary rule in common law cases, is equally the rule in admiralty.”
Indeed a breach of the COLREGs is still a factor, rather relevant, to be taken into account in determining such infringement of duty of care.
In addition, according to the general principle of negligence, it will be necessary for the claimant to show also damages suffered as a consequence of the collision (i.e. remoteness of damages)3.

Finally, whether the breach caused a collision or not, an infringement of Collision Regulations remains a criminal offence. In fact, S. 6 of MSR provides that:
“where any of these Regulations is contravened, the owner of the vessel, the master and any person for the time being responsible for the conduct of the vessel shall each be guilty of an offence.

Lorenzo Macchi

1 (1943) 74 LlL Rep 86
2 [1939] AC 94
3 cf. The Carslogie [1952] AC 292 and The Calliope[1970] 1 Lloyd’s Rep. 84 as to determine whether or not the consequent damages are considered as resulting of the collision.


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