Marine Collision Law in Ecuador

By |2019-03-29T10:47:08+00:00March 29th, 2019|Uncategorized|0 Comments

Ecuador is not a party of the Brussels Collision Convention. Ecuador is party from 2012 to the United Nations Convention on the Law of the Sea (UNCLOS). This convention includes provisions in regard to collisions on the high seas, determining that in regard to penal or disciplinary matters jurisdiction is subject to the flag State, or the State in which the individual to be investigated is a national.

The Convention does not include provisions regarding civil liability nor prescription in collisions. (UNCLOS 1982) .
Besides, the Bustamante Code includes several provisions regarding collisions but only related to jurisdiction. Moreover, its provisions on prescription are subject to local law. The problem with this Code is that it is not valid in all what opposes to the Constitution and local law, as it was the reserve in the ratification process from Ecuador (Bustamante Code 1928) .
Basically, current principles of liability in a collision remain the same in Ecuador since the 19th century, as with the first Code of Commerce. Moreover, as in the Spanish Code, the Third Book of the Ecuador Code of Commerce 1882 was dedicated to maritime commerce and continues as it. Although, one differentiation with the old Spanish Code was the inclusion of a specific section in relation to collision law with the general principles of liabilities (Código de Comercio 1882), similar to the French Code of Commerce 1807 sourced by the French Ordonnance de la Marine 1681 (Tetley 2002).
The Ecuador Code of Commerce 1882 stated in Art. 766 as a general rule that if the collision was of fortuity nature or by fault of both masters or their crew then each vessel had to bear their damages. The exception to this rule was introduced in Art. 769 which imposed to sailing ships to pay half of the damages if the collision was to an adequately moored vessel not able to impede the incident (Código de Comercio 1882).
Moreover, if the collision was the result of negligence of one of the masters then he was ought to pay all the damages, and if it was not possible to identify the guilty party then each of the vessels had to pay the half of the required repairs under estimation by experts.
In addition, under the 1882 Code all collisions were to be presumed that they come from fortuity, but liability on the collision was to be considered when the vessel was not properly moored, if encountering with other vessel no precaution was taken to impede the collision, if the vessel did not have proper lights at night, etc.
Besides, for claims purposes, under Art. 913, the Ecuador Code of Commerce 1882 introduced that in case of partial loss of a vessel it was the duty of the master to follow two requirements: First, to protest in twenty-four hours, or when the master was able to protest. Second, following the protest a lawsuit should be brought in a term of thirty days after the notification of such protest. If any of the requirements of this rule is not complied accordingly then the action was to be considered extinguished (Código de Comercio 1882). These are terms still remaining in the current Code of Commerce of Ecuador.
In comparison, the Code of Commerce of Chile 1865 adopted a prescription term of two months (Código de Comercio de Chile 1865), purportedly following the provisions related to prescription in the Spanish Code of Commerce 1829, Art. 1000 which stated that protest will be without effect if no judiciary demand is raised in two months. (Código de Comercio de España 1829). Ecuador approach was near to the one-month term stated in the French Code of Commerce 1882. The only difference is that while the French stated one month, the Ecuador Code provided for 30 days. (Code de Commerce 1807)
As a consequence of the liberal revolution, a new Code of Commerce was enacted in 1906 by President Eloy Alfaro. The third book of this Code was again dedicated to maritime commerce. This Code maintained same provisions regarding collision law and prescription terms. (Código de Comercio, 1906)
Finally, since 1960 Ecuador has its current Code of Commerce which again maintains the principles of collision law and its terms on prescription as in the first Code of Commerce, inspired by the French legislation from the Napoleonic era.
In contrast, the new Code of Commerce 1960 did not consider the new international principles on collision law already adopted by several countries including France and Spain under the Convention for the Unification of Certain Rules of Law with respect to Collision between Vessels “The Brussels Collision Convention 1910”, signed in Brussels in 23 September 1910. France ratified this convention in 1913 and Spain acceded in 1923. This is many years before Ecuador approved said Code of Commerce maintaining old principles of collision law (CMI 2015).
Different from the old rules, the Convention provides several new rules. As examples: first, presumptions on fault are abolished; second, it excludes the equal apportionment of liabilities in a both to blame collision and imposes a regime of liabilities in direct relation to the degree of fault in the collision; third, prescription time for recovery of damages is two years from the incident; and, fourth, the protest formality is no longer a condition for recovery (The Brussels Collision Convention 1910).

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