Content area
Full Text
I
INTRODUCTION
Collision is considered as part of the perils of the sea exception, although it still emerges as a separate and different exception in a range of charter forms.1
When a collision happens, various questions may arise as to whom shall be blamed? Which ship is liable? Shall the liability be on one ship or both ships? On the consequences of answering those questions depend on the following: whether one ship shall be totally blamed or not, whether both ships shall be blamed or not, whether we can specify the proportional fault of each ship or not, or whether both ships shall not be blamed since the collision happened because of a force majeure.
Liability for a collision is measured according to negligence, and therefore, each shipowner will try to prove the negligence of the other party, and each party will try to prove that the other party neglected to apply and applicable rule for the prevention of the collision or the proper maritime technical procedures.2
This Article examines the nature of liability for the negligence of both collided ships, in what is known as the 'both-to-blame collision', and under the 'both-to-blame collision clause' that is included in bills of lading and charterparties, and its legal consequences. The Article concentrates mostly on the United States legal system in which the 'both-to-blame collision clause' as been held as invalid, consequentially rejecting most maritime jurisdictions' decisions.
II
THE CONCEPT OF BOTH-TO-BLAME COLLISION
A Both-to-Blame Collision is a collision that happens because of the fault or negligence of both collided ships' masters, such as breaching the rules of ships' navigation concerning the avoidance of collision.3 Ships that participate in the collision shall be liable accordingly. Article 239/1 of Jordan Maritime Commercial Law provides that: "If the fault is committed jointly, the liability is evaluated in regard to each ship according to its proportional fault, and if such proportion is difficult to be proven or the faults were equal then the liability shall be divided in equal shares."4 This means that either we apply the proportional damages rule or the divided damages rule, where we shall illustrate those rules accordingly.5
The divided damages rule was best articulated in Halcyon Lines v. Haenn Ship Ceiling and Refitting Corp.,6 (a...