By Dr. Mohamed Karbal

It is a known fact that the Libyan people are still struggling to establish a strong central government to fulfill the hopes and aspirations that inspired the February 17, 2011, revolution and Libyan Maritime Law.

At present, there are two parliaments and two governments claiming to be the legitimate representatives of the Libyan people. To resolve the dispute, the United Nations and the European Union are bringing the two sides to the negotiating table in hopes of establishing a single, internationally recognized government that will bring peace and security to Libya, with the support of the international community.

The strategic location of Libya and its tremendous wealth give Libya an important status in the world, most notably to the EU.

Evidently, peace and economic development will soon come to Libya, leading to security and prosperity not only in Libya but also worldwide, especially in 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 under 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 to individuals, such as crew members.

The repercussions of the collision may cost those held liable, such as shipowners or insurance companies (P&I clubs), thousands, or even millions, of dollars in losses, depending on the severity of the damage. One of the biggest concerns is how each implicated party will assume liability and how loss will be allocated among the parties.

The purpose of this article is to address the legal issues of fault and liability arising from a maritime collision in Libyan waters, using the applicable legislation, the Libyan Maritime Law of 1953.

The Libyan Maritime Law considers collisions to be accidents 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 the event 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 damages and losses suffered. However, physical contact between a ship and structures, such as a bridge or dock, is not considered a collision under the Libyan Maritime Law 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 an 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).

When a court determines that both vessels are jointly at fault, it will allocate liability to the vessels in accordance with the degree of blame attributable to each vessel (Art. 239 of the Libyan Maritime Law). Courts may face difficulty determining the allocation of fault, particularly when the evidence is vague and does not permit the court to decide which vessel is more at fault. When 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 irresistible force outside of the control of either party that causes a tort. Under maritime law, examples would be a hurricane or flood that causes a collision between vessels. The Libyan Maritime Law stipulates that both parties are exempt from liability to each other in the event of force majeure (Article 237). 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 fault.

If it is impossible to determine the degree of fault of each vessel, liability will be divided equally among the vessels involved. Each defaulting vessel will be severally and proportionally liable for damages caused to other vessels and to the belongings of the crew and passengers.

However, defaulting vessels will be jointly and severally liable for death or personal injury, meaning the plaintiff can recover the full amount of damages (Article 239 of the Libyan Maritime Law) from any one of the defaulting vessels.

If such a vessel pays damages exceeding its percentage of 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 the public interest are not subject to the previous compensation rules (Article 244 of the Libyan Maritime Law).

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