LIABILITY FOR COLLISIONS UNDER LIBYAN MARITIME LAW
Dr. Mohamed Karbal
It is a known fact that the Libyan people are still struggling to establish a strong central government in order to fulfill the hopes and aspirations that inspired the revolution of February 17, 2011.
At present, there are two parliaments and two governments claiming to be the legitimate representative of the Libyan people. In order to resolve the dispute, both the United Nations and the European Union are bringing the two sides to the negotiation table, in hopes of establishing one internationally-recognized government to bring peace and security to Libya through the support of the international community.
The strategic location of Libya and its tremendous wealth gives Libya an important status for the world, most notably to the EU.
Evidently, peace and economic development will soon come to Libya and that will lead to security and prosperity, not only in Libya, but in the world especially Europe. Trade will flourish and the part of the Mediterranean adjacent to Libyan ports shall be frequently visited by vessels. This leads to the topic of this article which discusses vessel collisions as regulated by Libyan Maritime Law.
Although the effects of certain collisions may not lead to sinking, collisions may still cause adverse consequences, including but not limited to, fires and explosions, loss of cargo and damage to the vessel, marine pollution, and death or injury sustained by individuals, such as members of the crew.
The repercussions of the collision may cost those who are held liable, such as shipowners or insurance companies (P & I clubs) thousands, even millions of dollars in losses depending on the severity of the damage. One of the biggest concerns is how each party implicated will assume liability and how loss will be allocated amongst the parties.
The purpose of this article is to address the legal issues surrounding fault and liability that may arise from a maritime collision that occurs within Libyan waters by using the applicable legislation, the Libyan Maritime Law of 1953.
The Libyan Maritime Law considers collisions as accidents that occur between vessels. Although a collision is commonly believed to require physical contact, the Libyan Maritime Law allows victims to recover from tortfeasors even if no physical contact has occurred, where damage by an act or failure to act or violation of navigation rules is caused to another vessel, the goods or persons aboard the vessel (Article 241 of Libyan Maritime Law).
In case of a collision as defined under the Libyan Maritime Law, persons or cargo aboard a ship involved in the collision or an innocent third party may recover for damages and losses suffered. However, the physical contact between ship and structures, such as a bridge or dock, is not considered by the Libyan Maritime Law as a collision, and in fact constitutes tortious liability.
For a collision to have occurred, the accident must have caused by either a fault of a vessel or force majeure, or unidentified cause. The fault of a vessel is extremely important in determining the liability for damages. If a Court determines one vessel is at fault for the collision, the owner of the vessel will be held liable for paying damages to successful claimant(s) (Art. 238 of Libyan Maritime Law).
In case where a Court determines that both vessels are jointly at fault, then the Court will accord liability to ships in accordance to the amount of blame of each vessel (Art. 239 of the Libyan Maritime Law). Courts may be faced with the difficulty of determining the allocation of fault, such as when evidence is vague and does not permit the court to determine who is at greater fault. In case where the fault of the vessels is difficult to determine, courts will find both vessels equally at fault.
Force majeure is the common term used in various jurisdictions to describe an unavoidable or an irresistible force outside of the control of either party which causes a tort. Under maritime law, examples would be a hurricane or flood which causes a collision between vessels. The Libyan Maritime Law stipulates that both parties are exempt from liability to each other in case of force majeure (Article 237 of Libyan Maritime Law). Instead, each party will be responsible for its own losses.
In terms of division of damages, Article 239 of the Libyan Maritime Law stipulates that if more than one vessel is at fault, liability will be assessed in proportion to their fault, meaning that each vessel will only be held liable for the damages to the degree of their liability.
If it is impossible to calculate the degree of fault of each vessel, liability will be divided equally among the vessels involved. Each defaulting vessel will be severally proportionally liable for damages caused to other vessels, belongings of the crew and passengers.
However, defaulting vessels will be jointly and severally liable for death or personal injury, meaning that the plaintiff can recover the entirety of the damages (Article 239 of the Libyan Maritime Law) from one of the defaulting vessels.
If such vessel pays for damages exceeding its percentage of the fault, it is entitled to be reimbursed by other defaulting vessels for the amount it paid in excess of its percentage of fault. Military and government vessels serving public interest are not subject to the pervious rules of compensation (Article 244 of the Libyan Maritime Law).