Tetley (2002) introduction to conflict of laws 5
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- Division of Collision Damages – The Conflict Problems
- Division of Collision Damages and Conflicts – U.S.
- Division of Damages and Applicable law
- Anglo-American Grain Co. v. The S/T Mina D’Amour (1959, U.S. District Crt.)
Innocent Third VesselsA difficult problem arises if two vessels at fault collide and a third vessel collides with them at the same time or shortly thereafter. If the first two vessels are 40/60 at fault, can the third vessel recover 100% from either? Important for limitation fund questions later. Collision Convention, 1910 – Art. 4 – Reference to “and even to third parties a vessel is not liable for more than such proportion of such damages” leads one to believe that an innocent third vessel is treated like cargo on the two colliding vessels, i.e. it recovers only proportionately. UK – Where three vessels are at fault in a single collision, each recovers only proportionately (Miraflores). When one of the three vessels is innocent however, the courts and authorities have permitted that vessel to recover fully from either vessel or partially from both. This is because the Maritime Convention Act, is different in that it makes no reference to third parties. Canada – No Canadian case of an innocent third vessel, but in Russell v. The Gloria permitted full recovery for innocent cargo on an innocent third vessel.. Most probably would follow UK example since Canadian MCA is same as UK version. Can conclude that under Canadian law, an innocent third vessel and its cargo may recover in full from the two other vessels jointly and severally. France – Adopted the exact wording of the 1910 Collision Convention into its law, therefore proportionate damages. Such a case has not come before the courts, but authorities believe that two vessels at fault in a collision would be responsible in solidum to an innocent third party. Could this be true given the wording? United States – Although US didn’t adopt 1910 Collision Convention and although until Reliable Transfer US courts applied divided damages, they have always given innocent parties full recovery including cargo, persons and vessels. In the 19th century the civil law adopted proportionate damages but this was not so in the common law until after WWII. Maritime law, as practiced before the admiralty courts in US and UK adopted the divided damage rule much earlier. After 1910, the proportionate fault rule was adopted for collisions at sea. Division of Collision Damages – The Conflict ProblemsDivision of damages is only one of a number of legal problems arising from a ship collision. Dépeçage is required given all the laws that may apply to a collision at sea (or an air crash). Dépeçage has been rejected in the UK, however, because it is uncertain. Finding a simple, most appropriate law is preferred. Possible Legal Problems Arising from a Collision: Law governing fault of colliding ships (do the International Collision Regulations 1972 apply?) – Universal application. Are presumptions of fault valid? (Abolished by Collisions Convention, 1910 but Pennsylvania Rule in U.S.) How are damages to be divided? (contributory negligence or proportionate fault under CC 1910) Is pure economic loss recoverable? Many nations don’t award this. See later. What is the law applicable to claims made by cargo interests against either the carrying ship in contract or the colliding ship in tort? What rights have cargo interests? What is the law applicable to claims made by passengers and crew of each ship against the carrying ship in contract or the colliding ship in tort? What is the responsibility of passengers? What is the law applicable to the right of the ship-owner, charterers, managers, to limit liability in each ship? What is the law applicable to the calculation of the size of the limitation fund in each ship? What is the law of distribution and of marshalling (this is the equitable process whereby the marshal orders a creditor whose claim is protected by more than one secured right to realize on his security in the interest of all the creditors of the debtor) of the funds if funds are insufficient to meet claims of all creditors? Is forum non conveniens appropriate? (If not, proceedings should be stayed, and acquired rights of parties protected by order granting stay – see Arctic Explorer) Not all of the questions have been answered (see p.494)… Division of Collision Damages and Conflicts – U.S.Because the US adopted proportionate fault rule in Reliable Transfer most conflicts of law in respect of proportionate fault are avoided between the US and those countries which have adopted the 1910 Collision Convention. Cargo claimants on one vessel under US law however may recover 100% from the colliding vessel even if that vessel is only partially at fault. This gives rise to conflicts. In which U.S. cargo owners sue following a collision - Eagle Point (1906, 3rd Circuit, cert. denied) – collision of two British vessels on High Seas, both at fault. English law applies to cargo owners’ suit – lex loci delicti since the right to limit damages is a matter of right, not merely a remedy. Cargo interests suing in the United States could recover only ½ of losses from non-carrying ship rather than the full amount under the American rule. Ralli v. Societa Anonima de Navigazione (1915, U.S. District Court) - collision in England, American cargo owners could not recover ½ of losses because charterparty and bill of lading exempted ship-owner from liability for collisions. But, natural justice (fair play, public policy) invoked by court to recover the general average contribution since the carrying ship had recovered ½ of its own damages from the colliding vessel. Concepts of fair play thus prevailed over English law. Mandu Denderah (1939, 2nd Circuit) - Brazilian ship collides with German ship in Brazilian waters. Germany and Brazil parties to Collision Convention. Divided damages the rule in U.S. at that time. Liability for tort in waters of foreign country governed by laws of that country – cargo owners knew Germany and Brazil abide by the Convention. Western Farmer (1954, 2nd Circuit, cert. denied) - American vessel collided with Norwegian vessel on High Seas. German cargo owners sued in NY. Law of forum applied, not Collision Convention (Germany, Norway both had ratified) because limitation statutes part of the law of the forum. Tetley presumes, therefore, that Germans could also claim 100%, not just proportionate fault (Convention). Seiru v. Stena (S.K.K.) (1986, U.S. District Court) - Collision of Japan and Panama flagged vessels held to be on High Seas (U.S. did not recognize Cuba territorial limit). Collision Convention – law common to both flags – applied. Division of damages substantive, not procedural, so lex fori did not apply in fixing responsibility. Cliffs-Neddrill v. Rich Duke (1990, U.S. District Court) - Dutch ship and Bahamas ship collide off coast of Aruba in Netherlands West Indies. No one sovereign had overriding interest, so lex loci delicti and Aruba law. BUT, neither party raised choice of law question, so District Court decided they had acquiesced to U.S. law on the issue of presumptions of liability. Third Circuit upheld this point of judgment. Division of Damages and Applicable lawAsk: What is the law of the collision liability? Division of damages usually follows the law of collision liability. Different rules (Rio Rules, Netherlands and Chinese) apply law of the forum to collision on High Seas of ships of different flags. This favors forum shopping – today, so many ships fly flags of convenience. Should we study contacts instead? Lift the corporate veil?
Should weigh all contacts affecting division of damages – i.e. flag, place of collision, real place of ownership of each ship, real place of management and operation of each ship. Division of Damages and Jurisdiction Anglo-American Grain Co. v. The S/T Mina D’Amour (1959, U.S. District Crt.)Facts: British ship and Italian ship collided on High Seas off Spain. British cargo interests sued Italian ship and owners in the U.S. Holding: Dismissal granted on forum non conveniens motion because the matter of the rights of cargo under U.S. law considered irrelevant as contrasted with its rights under Brussels convention of 1910. This view was a reflection of USSC’s decision in Canada Malting, involving a collision between two Canadian ships carrying Canadian cargoes on the American side of Lake Superior – dismissal of case without reference to which law governed rights, just saying that no occasion to enquire on that question. A Summary There is a system of damages in most countries. From early on, shipping had divided damages and then the collision conventions followed and changed this to proportionate fault. In 1975 the U.S. adopted proportionate fault for 2 ships but left open different possibilities for persons, cargo. The Canadian provinces got rid of contributory negligence in the 20’s and 30’s and the UK did so only after WWII. SCC said in Bow Valley said that these issues are federal but the federal law can draw from the provincial law – the Marine Liability Act, 2001 clarified this and adopted proportionate fault and joint and several liability Quebec had already done this with the Civil Code. There are problems that still exist within this realm of law. A single rule may be unsatisfactory to determine the law governing division of damages in collisions, etc. All the factors must be considered including ownership, management abd flags of the two ships and the place of the collision…need a methodology… Directory: pubdocs -> files -> privateinternationallaw files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law privateinternationallaw -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law? Download 0.88 Mb. Share with your friends:
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