Особое внимание уделяется автором английскому праву и судебной практике. Автор приводит статистические данные относительно характерных пропорций, в которых вина была распределена между судами, участвовавшими в столкновении. Чрезвычайный интерес вызывает анализ понятия “виновное судно”. Отношения по поводу распределения вины между судами рассматриваются в историческом плане, то есть исследуются изменения концепции степени виновности судна с течением времени. Особенное место в исследовании занимают современные правила, закрепленные английским правом, причем автор приходит к заключению о том, что эти правила сыграли важную роль в деле борьбы за сокращение количества случаев столкновения судов, которое наблюдается вот уже более полувека, то есть в последние 50 лет количество столкновений значительно уменьшилось.
Весьма интересны также идеи относительно связи вины и причинности.
The sea seems big enough that one would expect collision to be something of a rarity, but unfortunately this is far from being the case. Though collision numbers are reducing daily due to modern technological developments, the extent of damage where there is a collision has become extremely high due to the speed of the ships and their steel hulls – and claims are increasing as the value of complex technical vessels increases. In addition, the after effects of collision on marine and human life are immeasurable.
The Maritime Convention Act 2011
General admiralty law recognises negligence as an actionable wrong, similar to the way it handles land-based actions. Before the Maritime Convention Act 1911 there was a difference between marine and shore based tort law. In Admiralty law it was established that where two ships were to blame by violating any statutory or general provisions for a collision claim, the loss was divided equally among the parties liable. This rule was abolished by the Maritime Convention Act and replaced by the modern rule that the l<pss is to be divided in proportion to the degree of blame borne by each ship. This development played an important role in the shipping industry in two ways. One was preventive, giving birth to a system of rules focused on preventing the risk of collision between vessels. Another was that it guaranteed the compensation of losses caused by a vessel at fault.
Collision liability
Collision liability can be defined as the legal obligation of compensation for damages arising out of a collision between vessels. The Maritime Convention Act 1911 refers to the fault of ‘a vessel’, but this simply means fault on the part of those responsible for the vessel.
In the Caim-Bahn case (1914) Warrington J explained that: The Act personifies the vessel, treating it at one time as the actor, at another as suffering damage or loss, and at another as liable to make good such damage or loss. The truth is, of course, that for the purpose of ascertaining the legal effec’t, the word in one context connotes those responsible for the navigation of the vessel; in another those who are interested in her, her cargo or freight; and in another those w’ho are in law answerable for the conduct of those in charge.’ However, it is clear that ‘fault’ is not limited simply to faults in navigation, and the section applies to other faults as well. Brandon J held that on the true construction of the Act it extended to faults in management as well.
There are guidelines for the court to take into account when apportioning liability. Only fault which causes or contributes to the damage is relevant to the apportionment of liability. Scott LJ said in the Вuccinum (1936) case: ‘The law of apportionment, under the Maritime Conventions Act, is not one of distribution of moral blame, but of the comparative appreciation of the degree in which the respective faults of the vessels have contributed to the result.’
If the requirements of collision liability are established, then the responsibility and the allocation of blame have to be assessed by the following questions:
- Firstly, whether and to what extent the defendant is blameworthy.
- Secondly, does the fault of the defendant have ‘causative potency’ [see box] and should it therefore be taken into account when examining overall blame?
Sir Gordon Willmer said in the Macgregor case that ‘The apportionment of fault is not an easy task for any Judge’. The tendency of the courts is to deal with apportionment in a fairly broad way. The most usual divisions of blame have been 60/40, 75/25 and 80/20. To understand the way in which apportionment has developed, we have analysed the data of the English Admiralty court from 1928 to 2013.
Critics
Of the 568 cases analysed, a total number of 270 cases (48%) resulted in sole fault, while in 97 cases (17%) both parties were found equally to blame. How’ever, there is a clear evolution in the decisions over the years. It is noticeable that from the 1960s onward, cases w’here sole fault lay with one part)’ decreased significantly – as did those where equal blame was placed on both parties. Cases where blame has been apportioned 80:20 and 60:40 division are on the rise. These apportionments rose from 20% of all cases in the 1930s to 72% in the 1990s.
Though the apportionment of fault rule is now well established, there were critics of the principle.
Prior to the introduction of the rule, Dr Lushington considered that it would be impossible to accurately apportion damages in a courtroom, and that, as a result, much difficult)’ would be introduced into collision litigation by the introduction of the rule. He felt that no two judges would agree on the exact division to be made, and it would prove impossible for counsel in any collision case to advise with accuracy.
It has been argued that the principle of contributory negligence [see box] does not act as a deterrent and is not effective in enforcing marine safety statutes. In many cases the court held that failure of look out, failure to take compass bearing or failure to give the proper sound signal was not causative and hence the culpable’ vessel was free from liability.
Shifting the blame?
Changes in the application of the principle can be seen not only in how blame is apportioned, but in what faults are considered to constitute blame. Some faults that were once considered to constitute a relatively small percentage of blame, such as failure to keep a proper look out, are now considered serious enough to give a substantial degree of fault. Failure to meet the responsibility of the stand on vessel was not previously considered a serious fault, but at present a significant portion of blame is given to a stand on vessel that does not take action according to rule 17 a (ii).
There appears to be a growing expectation that privileged vessels, such as supertankers, should take action to avoid a collision. In the Pelopidas case (1999) the deep draft vessel was given 40% of the blame due to excessive speed, whereas it is the practice of normal seamanship that the privileged vessel continue with her course and speed. Was this decision contrary’ to the general practice of seamanship?
This gives rise to the question whether allocation of fault should be made with respect to the seriousness of the fault, or with respect to the causation of the incident. Do ten minor violations of the rules of the road equal one major violation? Is the court able to identify good and bad seamanship? Academic legal scholars have criticised the principle of contributory negligence as inherently unfair, as it bars the plaintiff from any recovery, even when it is proved that a defendant’s negligence was primarily responsible for the plaintiff’s injury.
In deciding any case the court must make judgments based on a multitude of factors to try to come to the ‘right’ decision. Some of those choices are more complicated and require the court to look more deeply at the reasons for making them such as international uniformity, general and specific deterrence, and risk assessment and management. Accident law aims to rcduce the number and severity of accidents, which can be accomplished through general and specific deterrence.
Balance of opinion
Mariners are overall in favour of the apportionment of fault rule as it currently stands. Seafarers are more alert to avoid collisions than they once were, knowing that no vessel is able to escape liability for its own fault. For example, it was once understood by mariners that the stand-on vessel in a crossing or overtaking situation had no responsibility. At present, the court is holding the stand-on vessel partially liable in many cases, increasing the vigilance and awareness of the mariners in these situations. However, mariners have voiced the criticism that sometimes the grossly negligent party is getting better treatment than it should, as it is not held liable for causation of the fault – something which spreads the wrong message to negligent or careless seafarers.
Over the 100 years since its introduction, the rule of apportionment of liability in collision cases has kept pace with technical and structural developments within shipping. One of the greatest achievements of the apportionment rule is that it has led to well-framed collision regulations, including interpretation. The method of assessing fault may not be perfect; however to a reasonable extent it has proven acceptable compared with the previous system. Data analysis shows that the number of collision cases has reduced drastically over the last 50 years. Together with many other factors, the rule of apportionment of liability has played a vital role in this achievement. >
Causative and contributory negligence
Causative fault (or potency) refers to the fault or negligence involved in causing the collision.
Contributory negligence refers to negligence that led to damage as a result of that collision.
For example, imagine Ship A, at berth, has negligently stowed its anchor. Ship В collides with Ship A, and is holed on the negligently stowed anchor. The collision is due to the action of Ship В – so Ship В bears causative potency. But the damage to ship В was caused by the badly stowed anchor, so Ship A bears contributory negligence.
Автор:
Capt Sabbir Mahmood afni, llb, llm
Senior Nautical Instructor, Bangladesh Marine Academy
Источник:
Seaways. – 2016. – November. – P. 22 – 23.