In August 2017 during a hearing in a Harbor Master investigation case regarding a collision incident, a very well-known Ecuadorian maritime attorney and former master mariner recalled that collisions happen due to diverse causes.
[He said] that no master sails with the aim of such incident, and that even when the master, the pilot or the crew execute different maneuvers to impede collisions the vessel is like an individual, sometimes is not possible to predict what is going to happen. “That is why in a collision incident fortuity is to be presumed according to our law”, he said.
The argument exposed by Mr. Castro brought the total attention of the Tribunal. He was alleging that the collision incident was fortuitous and there was nobody to blame. This was understandable. He was representing the owners of a Liberian container vessel that in October 2016 while navigating in a narrow canal in territorial waters of Guayaquil, Ecuador, in normal weather conditions, collided to an Ecuadorian fishing vessel that was in mooring operations by the port. The fishing vessel was seriously damaged with a loss of approximately US$500,000, while the container vessel had almost no losses.
Notably, the purported strategy of Mr. Castro of having no vessel to be blamed considered the universal principle of force majeure in a collision valid under Ecuadorian law. In a collision caused by fortuity every vessel bears their own damages. Therefore, the pretension was that the owners of the fishing vessel will bear their own loss of 500,000 dollars while the owners of the container vessel will have to assume almost nothing.
The allegation of fortuity in the collision was based in that the container vessel while navigating in the narrow canal suffered the effects of low water, with the phenomenon known as bank effect. The maneuvers done to have the vessel scape from this situation made the vessel have contact with the fishing vessel causing damages.
Consequently, the attorney for the fishing vessel strongly opposed such allegation and remarked that the maneuvers by the master and the pilot were inappropriate. He relied on experts reports and insisted that such negligent maneuvers were the proximate cause of the collision to the fishing vessel, and that the losses need to be compensated by the wrongdoer. For this reason, he asked the panel to declare fault on the master and pilot of the container vessel.
Finally, the Harbor Master investigation panel “known in Ecuador as Jury of Captains- decided that the fault was on the container vessel. They were not convinced by the experienced words from Mr. Castro. The approach by the Jury demonstrated what professor Thomas Schoenbaum has mentioned, that with the actual advanced techniques of investigation it is now less complicated to determine fault in a collision incident (Schoenbaum 2004). The attorney for the fishing vessel was very happy. He anticipated that with the decision the civil demand will be filed.
Surprisedly, Mr. Castro was also very happy. He said that this decision was expected, it was reasonable and there was no reason to appeal.
Moreover, he called his clients by phone and informed them about the decision and that a civil lawsuit was expected to be filed soon by the owners of the fishing vessel. He said that as soon this demand is filed he will oppose the complaint alleging prescription.
He explained them that according to the Ecuador law of collision there were two requirements to comply by claimants. First, the duty of the master was to protest in twenty-four hours, which was duly complied; and second, following the protest a lawsuit was to be filed in thirty days after such protest was notified. This second requirement was not complied on time by the shipowner of the fishing vessel, and therefore actions are to be considered extinguished upon a defense on prescription.
The owners of the container vessel seemed to be surprised. They expected that the prescription time was two years from the casualty as stated in the Brussels Collision Convention 1910. Mr. Castro just told them that Ecuador is not party of such convention.
As has been noted, Mr. Castro knew beforehand that the civil case was time barred. His appearance to the Jury of Captains was only part of his strategy. It transpires that the attorney for the fishing vessel was not duly informed about this prescription term. This is not so strange, these provisions are almost hidden in a specific chapter regarding prescription related to maritime commerce in our current Code of Commerce 1960. It is also true that these provisions are not new, they exist in our laws since the 19th century.
Mr. Castro predicted the future. The owners of the fishing vessel will file a lawsuit claiming damages to the owners of the container vessel. The main evidence will be the declaration on fault recently issued by the Jury of Captains.
Subsequently, said complaint will need to be notified. As the defendant is a foreign company summons will have to be executed overseas through letters rogatory proceedings by the ministries of foreign affairs of each country. After this, it is expected that Mr. Castro will raise the defense of prescription. The judge more likely will have to decide based on said strict rule.
The questions are if the attorney of the fishing vessel would have known about such provisions on prescription could he be able to evade such defense? The thirty days prescription term is a reasonable time? It is incontestable that this prescription term has been valid for more than a century but it is also true that the legal scenario has changed. These changes have been more intensive since 2008 with the enactment of a new constitution. Following the constitution new statutory law has been approved. The new set of laws have impacted the way how claims are to be handled.
The issue raises also questions on constitutionality. A short and non-reasonable prescription term can be considered unconstitutional? The owners of the fishing vessel are facing an unfair situation which prevents them to recover their losses and therefore violates their rights of access to justice?
Marine incidents can happen at any moment, at any jurisdiction and when they occur shipowners, masters and insurers face the uncertainty of what the law is in determined territory. This is more emphatic in relation to collisions under jurisdiction of countries that are not parties to the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, 1910 “The Brussels Collision Convention”. Ecuador is one of those countries nonparties to the Convention. Certainty in what is the law appears crucial.
The story includes names that are ficticious but some facts are base in a true case.