In Ecuador, marine collision law is part of the Code of Commerce, which is directly related to the first french Code of Commerce enacted by Napoleon. However, to understand collision law its origins are deeper.
Initial regulations are purported to come from the 9th century, adopted by Roman law and derived to common law and finally unified by both the civil and common law by international conventions as the Brussels Collision Convention 1911, the COLREGs 1972 among other conventions.
The term collision comes from the Latin collision, and in the marine world the term is applied for all impacts between vessels that causes damages. When a vessel strikes with another object, as a floating or fixed object (FFO), it is regarded as a contact or also known technically as allision (Healy and Sweeney 1998).
The Latin origin of the term is used in the Spanish language as colisión. The Spanish meaning is a strike between objects, but for maritime purposes the specific term for a striking or contact between vessels follows the French word of abordage written the same in ancient Spanish but now is abordaje (Spanish Royal Academy 2017).
Therefore, collision is related to a direct and violent contact between vessels in the sea or inland waters which causes damages to the property or the people (Quiñones 2015). It has been also ruled that collision involves incidents even when no contact has occurred as when a vessel proceeds at non-authorized speed causing damages to other vessel (Mahnood 2015).
Origins of Collision law
The Historical origin of collision law is uncertain. It appears to be initiated with the Lex Rhodia around 800 B.C. mentioned by The Roman law under the Justinian Digest. It is also to consider the Roles of Oleron, enacted by Eleanor of Aquitaine, who was Queen of France and England. These rules dated from 1160, (Schoenbaum 2004) influenced the English law of collision. During the 14th century these rules were part of the law of Bristol and London, the main seaports in England (Staring 1957).
Indeed, the Roles of Oleron brought the first known doctrine of division of damages in a collision. When a vessel that is not well steered strikes another which is at anchor both vessels were to divide damages in common, divided half by half, provided the captain of the colliding vessel should swear on the Gospel that the incident was not on willing. (Staring 1957)
The Ordonnance de la Marine 1681 and the French Code of Commerce 1807
In 1681, King Louis XIV of France adopted the Ordonnance de la Marine. It was considered the most important of the maritime codes adopted in Europe in that century. It is the source of maritime provisions in the first French Code of Commerce 1807 (Healy y Sweeney 1998) enacted by Napoleon during the golden age of civilian codifications (Tetley 2002).
The French Code of Commerce dedicated its entire chapter two to maritime commerce (Klimaszewska 2012). Art. 407 of said Code lays out the doctrine of divided damages in a collision stating these rules: first, if the incident is purely accidental, the suffering vessel bears the damage; second, if the fault comes from one Master then the damage is paid by the one who occasioned it; and, third, if it is uncertain which of the two vessels is in fault, the damage is to be repaired by those two vessels, in equal proportion.
Moreover, at the end of the second book, per Arts. 435 and 436 of the French Code in case of actions for compensations caused by collisions, there is a requirement of a protest within twenty-four hours and the duty to file lawsuit within a month. Failure to comply is considered that the actions are inadmissible:
“Art. 435. Sont non recevables:
… Toutes actions en indemnité pour dommages causés par l´ abordage dan un lieu oú le capitaine a pu agir, si´l n´a point fait de réclamation.
“Art. 436. Ces protestations et reclamations son nulls, si ells ne sont faites et signifies dans les vingt-quatre heures, et si dans le mois de leur date, ells ne sont suivies d&une demande en justice.” (Code de Commerce 1807)
Collision Law in the Common Law
The English Admiralty Court purportedly had its origins in 1360. Its records are only available from 1530. Very few collision cases are reported until 1789 with The Petersfield & The Judith Randolph case. (Healy and Sweeney 1998).
Anyway, the judgement in the case Woodrop-Sims from 1815 is one of the most cited decisions stating the basic rules of liabilities in a collision:
First, in case there is no blame from either party then each party bears their own losses, as when the collision is a result of a fortuity;
Second, if both vessels are to blame, damages are apportioned between both parties;
Third, when the collision is the result of the blame of the suffering party there is no right of recovery; and,
Fourth, when the other party is alone to blame then there is right to full recovery by the damaged vessel. (Dodson 1815-1822)
Nevertheless, in regard to both to blame collisions the British Parliament in 1911 abolished the principle of division of damages and adopted the comparative fault rule as stated in the Brussels Collision Convention (Tetley 2001). The United States Supreme Court with the case United States v Reliable Transfer Co. (United States v. Reliable Transfer Company, Inc. 1975) submitted to this new universal doctrine same rule, meaning that liability for damages in a collision is to be allocated proportionately to the degree of the fault. The equal proportion is only applied when is not possible to verify the comparative degree of fault, as stated in the Brussels Collision Convention (The Brussels Collision Convention 1910).
Development of Collision Law in Latin America
During 19th century, after independence from the Kingdom of Spain the new Latin American countries faced the challenge of deciding the law to apply locally. Most of these countries continued or adopted the Spanish laws with little modifications but with the aim to implement their own legislation. As a result, a trend of unification of the laws of South America begun in this century which included civil, commercial and penal matters (Inter-American Juridical Comittee 1959).
Consequently, the first result to unify the law appears with the South American Congress of Private International Law held from 1888 to 1889, also known as the Congress of Montevideo. The outcome was the Treaty of International Commercial Law signed in 1889 in Montevideo, Uruguay. Parties of this treaty are South American countries: Argentina, Bolivia, Paraguay, Peru, Uruguay and Colombia (Delic 2016).
Although, regarding impacts and collisions, the Montevideo Treaty of 1889 only included as a general rule that the law and jurisdiction to be applied is the place where the incident takes place. But, if the collision occurs in non-jurisdictional waters then the law and jurisdiction is the place of registration of the vessels, or if different between each other, the most favorable country of registration to the defendant. Jurisdiction is awarded to the tribunals where the vessel first arrives or where the authorities acknowledge the situation. Thus, there is no approach regarding prescription terms for claims in collisions (Tratado de Montevideo 1889).
Subsequently, the Congress of Montevideo in 1940 provided a new instrument, the Treaty on International Commercial Navigation Law. Parties in this treaty are Uruguay, Argentina and Paraguay. Even though, the treaty has similar provisions in regard to collisions as in the previous agreement, meaning that the law and jurisdiction are those in which the incident took place but if the collision is out of jurisdictional waters then the law of the flag of the vessel applies.
Anyhow, the difference with the previous treaty is that the claimant has multiple options regarding where to file a claim. First, the place where the defendant is domiciled. Second, the port where the vessel is registered. Third, the place where the vessel was arrested due to the collision. Fourth, any other port where the vessel made her first call or eventually arrives. This provision applies in case the collision occurs out of jurisdictional waters between vessels of different nationalities, as stated in Section II related to collisions. There is no provision in regard to prescription in a collision incident (Tratado de Montevideo 1940).
On the other hand, the Sixth International Conference of American States held in Havana, Cuba, in 1928 adopted the Convention of Private International Law and the Bustamante Code of Private International Law. This Conference recommended to the countries of the hemisphere the adherence to the Brussels Collision Convention 1910 in order to contribute with the adoption of uniform laws in matters of maritime law (Inter-American Juridical Comittee 1959).
Parties to the Convention are The Bahamas, Bolivia, Brasil, Chile, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Peru, Dominican Republic and Venezuela. Several of these countries issued reserves to the treaty, as in the case of Ecuador it was stated that the treaty was approved in all parts that are not in contradiction to the Constitution and laws of Ecuador (OAS 2017).
The Bustamante Code of International Private Law includes several provisions in regard to collisions, contained from Art. 289 to Art. 293. These are most related to conflict of laws and jurisdiction. The principles are that the law of the place of the incident is to be applied in case of collisions in territorial waters, but if the collision takes place in the high seas then the law of the common flag is to be applied. When the flags that the vessels fly differ, then the law of the impacted vessel is the applicable, provided that the collision was in fault. (Linares 1961).
In relation to apportion of liabilities in a collision Art. 294 of the Code states that in case of a fortuity collision in the high seas between vessels that fly different flags, each one will bear the half of the total expenses divided upon the law of one of them, and the other remaining half will be apportioned according to the law of the other. In regard to prescription the Code does not provide specific terms and as general rule submits to local law (Bustamante Code 1928)
The Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, 1911
The Convention for the Unification of Certain Rules of Law with respect to Collisions between vessels, is also known as The Brussels Collision Convention, It was signed in Brussels in 1910 by most of the maritime nations of the world, and is considered as the modern international maritime law on collisions (Staring 1957).
Briefly, this Convention confirmed the fault liability in collision cases. Therefore, it abolished all presumptions on liability and determines contribution in damages regarding collision cases in proportion to the fault, imposing a general time bar rule of two years for all claims: “Actions for the recovery of damages are barred after an interval of two years from the date of the casualty”. An additional term of one year counted from the day of payment is awarded to a party that has paid in excess of his proportion to recover from the other defendant or defendants when the liability has been jointly and severally. Besides, the Convention disregards the necessity of a protest or any other formality for claim purposes. (The Brussels Collision Convention 1910).
To sum up, said prescription term of 2 years in the Convention was interpreted in 1 February 2008 in the case Chan Kwai Ha v. Wong Chick Bun at the Hong Kong Court of Appeal region 1. The decision stated that actions for recovery were related to all kind of actions and not only to tortious actions, indicating that “all actions for recovery in collision cases are barred after the lapse of two years from a casualty” (Chan Kwai Ha v Wong Chick Bun 2008)
Although the Convention states that the term is counted from the date the incident takes place, its provisions contemplate that lex-fori is to be applied for terms related to suspension or interruption of the two years period with the possibility to national legislations to extend the period when it is justified that the arrest action to the defendant vessel has not been possible in the territorial waters of the plaintiff’s domicile or main place of business (Tetley 2002).
Despite the United States not being a party to this Convention, its principles have been adopted by U.S. district courts applying the Convention in cases of International collisions under a choice of law analysis (Morris 2007).
Latin American countries that have adopted the Convention are Brazil, Mexico, Uruguay, Paraguay, Nicaragua, Guyana, Dominican Republic, Argentina, Antigua and Barbuda, Haiti. Ecuador has not ratified said convention (CMI 2015).
As mentioned earlier, several efforts have been executed in the Americas to unify the law, as in relation to the accession to the Brussels Collision Convention. In testimony, the Inter-American Council of Jurists at the Pan-American Union, currently Organization of American States, prepared a study on collision and mentioned two pitfalls: the need to protest and diversity of legal rules in regard to statute of limitations contributing to the conflict of laws (Inter-American Juridical Comittee 1959).
The Convention on the International Regulations for Preventing Collisions at Sea, 1972
The Convention on the International Regulations for Preventing Collisions at Sea also known as COLREGs was adopted in 1972 in London by the initiative of the United Nations agency called Intergovernmental Maritime Consultative Organization IMCO lately developed as the International Maritime Organization IMO. Further amendments were executed in 1983, 1989 and 1991 by which the initial convention maintains its essence. These are the universal rules accepted by most of the countries (Healy y Sweeney 1998).
COLREGs provides the rules for navigation to reduce the risks of collision between vessels. These rules come from maritime custom and the noncompliance can result in liabilities for damages by the wrongdoer to the contacted vessel. (Lowndes 1867)
Effectively, COLREGs does not refer to apportion of liabilities nor to time bar to file claims. These provisions are included in the Brussels Collision Convention, but the failure of compliance to navigation rules or rules of the road that is a proximate cause of a collision provides elements of fault and is a basis of liability (Griffin 1988).
It is to mention that Latin American countries adherence is most prominent with this convention than with the Brussels Collision Convention, as Bolivia, Brazil, Venezuela, Argentina, Chile, Nicaragua, Cuba, Dominican Republic, Panama, Colombia, Paraguay, Perú, El Salvador, Guatemala, Honduras, México, Uruguay. Ecuador is also part of this convention (IMO Status of Conventions 2017).