Ship Collision Lawyer in France: Liability, Compensation and Procedure

Take a situation that the firm’s files repeat from one year to the next. A Maltese bulk carrier of 38,000 tonnes deadweight is coming up the Le Havre channel in reduced visibility, a Dutch coaster is leaving the dock, they pass within a cable’s length of each other and the coaster’s side plating is opened over fifteen metres: two weeks out of service at the Brest yard, a wetted grain cargo, an injured engineer, 4.2 million euros of invoices. The master of the bulk carrier says he sounded his whistle. The other says he heard nothing.

The firm acts for shipowners and their hull underwriters, for P&I clubs, for charterers and cargo interests, for ports whose structures have been struck, and for seafarers and the families of victims. This page sets out the law of collision as it is argued in France, from the applicable texts through to limitation of liability. It complements the firm’s maritime law page.

What a collision is in law and the texts that govern it

A collision is the striking of one ship against another, or of a seagoing ship against an inland navigation vessel, whatever the waters in which it happens. The French regime is set out in Articles L. 5131-1 to L. 5131-7 of the French Transport Code, which give effect to the Brussels Collision Convention of 23 September 1910, the foundation of the positive law in most maritime States.

Physical contact is not required. Article L. 5131-7 of the French Transport Code extends the regime to damage caused by one ship to another ship, to things or to persons on board, where the cause is a manoeuvre, an omission or a failure to observe the regulations, with no collision in the physical sense. That covers the wash of a vessel passing too fast in front of a berth and parting a yacht’s mooring lines. Striking a port structure or a buoy, by contrast, falls under ordinary civil liability, which changes the time limit and sometimes the court.

The rule of conduct comes from the International Regulations for Preventing Collisions at Sea of 1972, brought into French law by Decree no. 77-733 of 6 July 1977. The COLREGs say nothing about civil liability. They say how you steer. The court uses them as a yardstick: fault is measured by the gap between the manoeuvre actually made and the one the regulations prescribed.

Nautical fault and how it is proved

Article 6 of the 1910 Convention abolished the legal presumptions of fault. No ship is at fault because she was coming from starboard or because she was sailing without a pilot. Whoever claims compensation must establish the other’s fault, his own loss and the link between the two. That requirement is the backbone of the case.

The demonstration runs through the COLREGs: the permanent look-out by sight and hearing, the safe speed suited to visibility and traffic, the assessment of the risk of collision, the manoeuvre made boldly and early enough to be seen, the prescribed lights and shapes. The Cour de cassation reasons in exactly this way: in its judgment of 12 January 2022 (Cass. com., no. 20-14.135), handed down after remittal from an earlier judgment of 19 December 2018 (no. 17-25.948), it reviews the assessment of the faults by reference to those regulations. The technical file is built from the voyage data recorder, AIS data, the masters’ reports of the casualty, the log books and the VHF exchanges.

The French marine casualty investigation body opens a technical investigation in the cases provided for by Directive 2009/18/EC of 23 April 2009 and Articles L. 1621-1 and following of the French Transport Code. Its report must be read with a warning that many litigants forget: Article 1(2) of that Directive states that the investigations are not for the purpose of determining liability or apportioning blame. The report informs, it does not judge. Hence the court-ordered survey run in parallel on the basis of Article 145 of the French Code of Civil Procedure, the only inter partes measure that can be relied on against the other side.

Fault of one ship, both to blame, accident and doubt

Three branches, and a fourth that is underestimated. If the fault of one ship alone is established, she answers for the whole of the loss (Article L. 5131-3 of the French Transport Code, Article 3 of the 1910 Convention). If both were at fault, liability is apportioned in proportion to the gravity of the respective faults, not split down the middle for convenience; where the degrees cannot be determined, liability is apportioned equally (Article L. 5131-4 of the French Transport Code, Article 4 of the 1910 Convention).

The fourth branch is doubt. Where the collision is accidental, caused by force majeure, or where its causes remain in doubt, each party bears its own loss with no recourse against the other (Article L. 5131-3, second paragraph, of the French Transport Code, Article 2 of the 1910 Convention). The claimant who fails to persuade does not recover half. He recovers nothing. That is the trap I call the doubt that is never shared.

A pilot on board changes nothing as to where the burden finally falls. Article L. 5131-5 of the French Transport Code, like Article 5 of the 1910 Convention, maintains the owner’s liability even where the collision is caused by the fault of a pilot, including where pilotage is compulsory. A recourse against the pilotage station remains possible, but its limits of cover often make it a disappointment.

Damage to the ship and to cargo

The ship head of loss covers the cost of repairs, towage, demurrage and loss of earnings. They are quantified by a joint survey conducted with the surveyors of both hull underwriters, before the yard has cut away the steel. A repair carried out without the other side present is then argued over line by line for two years.

For cargo, the mechanism bewilders anyone meeting it for the first time. The sea carrier is exonerated from the consequences of the nautical fault of the master, the pilot or his servants, under Article 4(2)(a) of the Hague-Visby Rules and Article L. 5422-12 of the French Transport Code; cargo interests shipped on the ship at fault can therefore claim nothing from her in respect of the manoeuvre, so they turn against the other ship, the one that was not carrying them, in tort, and that non-carrying ship, condemned in full towards the cargo because joint and several liability does not apply here but the law of tort exposes her without the filter of the contract of carriage, then exercises her recourse against the carrying ship under the apportionment between ships, so that the burden comes back by ricochet to exactly the place from which the nautical fault exception claimed to have removed it. The both-to-blame collision clause attempts to pass that burden on to the cargo interests themselves. Its validity is not uniform: the Supreme Court of the United States held it void in contracts of carriage in 1952 (United States v. Atlantic Mutual Insurance Co., 343 U.S. 236), whereas European practice keeps it in charterparties. In French law, no published decision has struck it down head on to date: treat it as a clause whose effectiveness depends on the forum seised.

Personal injury and loss of life

For death and injury, collision law abandons the proportional logic. Where several ships are at fault, they are jointly and severally liable towards the victims of personal injury and their dependants (Article L. 5131-4 of the French Transport Code, Article 4 of the 1910 Convention). The victim claims the whole from whichever ship he chooses. He does not have to untangle the blame.

The apportionment is then settled between the ships, by a recourse that runs to its own time limit. An owner who pays out quickly must document his payment as though he would have to justify it three years later. He will.

The victim’s status then dictates the regime of his compensation. A passenger falls under the contract of carriage and the conventions governing it, a question dealt with on the carriage of passengers by sea page. A seafarer falls under maritime social legislation and the employer’s inexcusable fault, a subject developed on the seafarers page.

Environmental damage after a collision

A collision that opens a bunker tank or a cargo tank triggers a second regime, laid over the first. The CLC Convention of 27 November 1992 governs pollution by persistent oil carried in bulk by tankers: it channels liability onto the registered owner, backs it with compulsory insurance and opens a direct action against the insurer. The Bunkers Convention of 23 March 2001 covers the bunker oil of any ship and adopts a broader definition of the person liable, taking in the registered owner, the bareboat charterer, the manager and the operator.

It is often said that the two conventions channel liability in the same way. They do not. Under the CLC, the claim is locked onto the registered owner; under the Bunkers Convention, several persons may be pursued side by side. The detail of the recourses is set out on the marine pollution page.

Then there is the ship herself. A collision that sends her to the bottom creates a wreck whose removal is ordered at the owner’s expense, for sums that often exceed the residual value of the hull. The ways of challenging the removal notice are set out on the wreck removal page.

Jurisdiction and applicable law

The Brussels Convention of 10 May 1952 on civil jurisdiction in matters of collision leaves the claimant a choice between the court of the defendant’s habitual residence or principal place of business, the court of the place where an arrest has been effected on the defendant ship or on another ship in the same ownership, or could have been effected had security not been given, and the court of the place of the collision where it occurred in port or inland waters. The Brussels I bis Regulation of 12 December 2012 adds, in its Article 7(2), the court of the place where the harmful event occurred or may occur, in matters of tort or delict.

In criminal matters the logic is reversed. The Brussels Convention of 10 May 1952 on penal jurisdiction in matters of collision and Article 97 of the United Nations Convention on the Law of the Sea of 10 December 1982 reserve the prosecution of the master and the crew to the authorities of the flag State or of the State of which the person concerned is a national, for collisions on the high seas. In French waters, the coastal State recovers its jurisdiction.

In France, the dispute goes before the tribunal de commerce where both parties are traders, and before the tribunal judiciaire otherwise; the Paris Maritime Arbitration Chamber remains open if a submission agreement is signed after the event. In practice, what fixes the forum is the arrest of the other ship: it provides both the security and the jurisdiction of the court of the place of arrest. Whoever arrests, chooses.

Time limits

Claims for compensation arising out of a collision are time barred after two years from the event, and recourse actions between ships jointly and severally liable after one year (Article L. 5131-6 of the French Transport Code, Article 7 of the 1910 Convention). Time runs from the event, not from knowledge of the loss. The ordinary grounds of interruption apply, but an amicable negotiation with a P&I club interrupts nothing: only a written admission of liability, the service of proceedings or an express standstill agreement produces that effect.

The trap is not that period. It is the layering of different periods on one and the same casualty. Cargo interests suing the carrier fall under the one year period of the contract of carriage, passengers and seafarers fall under regimes of their own, the subrogated insurer never has more rights than his assured, and the recourse of the owner who has paid the personal injury claims is time barred one year after his payment. Four clocks run at different speeds. Whoever watches only one of them loses another.

Insurance

A collision is almost always settled between insurers, and the first question is the split between the hull policy and the P&I club. The hull policy carries a running down clause covering a fraction of the debt towards the other ship, traditionally three quarters in policies of English inspiration and the whole of it under French conditions. The balance, personal injury, pollution and wreck removal fall to the P&I club.

Once the indemnity has been paid, the subrogated insurer pursues the recourse against the other ship and her insurer. The victim also has a direct action against the liability insurer, under Article L. 124-3 of the French Insurance Code. Against a P&I club, that action runs into the pay to be paid rule, under which the member must have paid the victim before he can be reimbursed by the club; the reach of that rule against the French direct action remains debated, and there is no uniformly accepted solution. Questions of cover are dealt with on the marine insurance page.

Limitation of liability

The owner held liable does not necessarily pay the whole of the loss. LLMC 1976, the London Convention of 19 November 1976 on limitation of liability for maritime claims, as amended by the 1996 Protocol, allows him to cap his debt by reference to the tonnage of the ship; Articles L. 5121-1 and following of the French Transport Code give it effect in domestic law. The amounts were raised by amendments that entered into force on 8 June 2015: for a ship not exceeding 2,000 tons, 3.02 million SDR for claims for loss of life or personal injury and 1.51 million SDR for other claims, with tapering bands above that, of 1,208 SDR then 906 SDR then 604 SDR per ton for the former, and 604 SDR then 453 SDR then 302 SDR for the latter.

Limitation is obtained by constituting a fund, by deposit or by bank guarantee, before the president of the competent tribunal de commerce. It is broken if the claimant proves that the loss resulted from the personal act or omission of the person liable, committed with intent to cause such loss or recklessly and with knowledge that such loss would probably result. That proof is difficult, without being impossible where the file reveals a failing organisation ashore rather than an error on the bridge. If the collision was followed by a salvage operation, the salvor’s remuneration obeys its own rules, set out on the salvage and assistance page.

The survey and the first 72 hours

A collision case is won or lost before proceedings are served. The voyage data recorder overwrites its files after a limited period, AIS tracks are not archived indefinitely, crews are relieved, ships sail. The first step is to have the media on board frozen, by a written instruction to the master and, if the other side resists, by an order made under Article 145 of the French Code of Civil Procedure.

Then come the master’s report of the casualty, the protest addressed to the other owner, the joint survey of the damage with the surveyors of both sides, the negotiation of security. Security most often takes the form of a P&I club letter of undertaking, drafted in English, three lines of which decide everything: the amount, the forum to which the guarantor submits, the duration. A badly negotiated letter amounts to a waiver of the right to arrest. Read it again before you release the ship.

How the firm works

The firm assists shipowners and their hull underwriters, P&I clubs, charterers, cargo interests and their subrogated insurers, port authorities, injured seafarers and families. The work begins with securing the evidence and characterising the faults by reference to the COLREGs, continues with the arrest of the ship or the negotiation of security, and then with the court-ordered survey.

It argues cases for claimants and for defendants alike and supports the constitution of the limitation fund. In criminal proceedings, it assists the master and the owner before the investigating judge and the criminal court, making sure that the technical investigation report is not used beyond its purpose.

Based in Paris, the firm acts in every French port, in mainland France and overseas, before the commercial and civil courts of the coast and before the Paris Maritime Arbitration Chamber, and works in English with P&I clubs, insurers and foreign counsel. It also coordinates proceedings brought abroad.

Analyses and guides

The guide to maritime contracts deals with the clauses that decide the fate of a recourse, the both-to-blame collision clause among them. The guide to port liability covers allisions with port structures and the apportionment between the ship, the pilot and the port. On limitation of liability, the calculation of the caps and the procedure for constituting the fund are set out in our French-language analysis of the shipowner’s limitation fund.

Frequently asked questions

Is there a collision where the two ships never touched?

Yes. Article L. 5131-7 of the French Transport Code applies the collision regime to damage that one ship causes to another ship, to things or to persons on board, by a manoeuvre, an omission or a failure to observe the regulations, without contact. The practical consequence lies in the time limit: two years, not five.

How is liability apportioned where both ships were at fault?

The apportionment is proportionate to the gravity of the respective faults, under Article L. 5131-4 of the French Transport Code and Article 4 of the Brussels Convention of 23 September 1910. If the degrees cannot be established, liability is divided in equal shares. For damage to ships and to property there is no joint and several liability towards third parties: each ship owes only her share.

My cargo was damaged in the collision, who can I sue?

The other ship, the one that was not carrying you, in tort: your carrier is exonerated from the consequences of the nautical fault of the master or the pilot by Article 4(2)(a) of the Hague-Visby Rules and by Article L. 5422-12 of the French Transport Code. Check the bill of lading, because a both-to-blame collision clause may require you to reimburse the carrier the share that the other ship recovers from him.

Can the marine casualty investigation report be used as evidence in court?

It is put before the court and it is read, but it does not decide liability. Article 1(2) of Directive 2009/18/EC of 23 April 2009 states that safety investigations are not for the purpose of determining liability or apportioning blame, and Articles L. 1621-1 and following of the French Transport Code say the same. Civil fault is established by the court-ordered survey and by the ship’s documents.

Which court hears a collision between two foreign ships?

The Brussels Convention of 10 May 1952 on civil jurisdiction in matters of collision opens to the claimant the court of the defendant’s domicile, the court of the place where the ship was arrested or could have been arrested had security been given, and the court of the place of the collision if it occurred in a port. The Brussels I bis Regulation of 12 December 2012 adds, in its Article 7(2), the court of the place of the harmful event.

Should I accept a P&I club letter of undertaking rather than arrest the ship?

That depends on three lines of the letter. Security in a sufficient amount, naming an acceptable jurisdiction and valid until final judgment is better than an arrest, which costs more in commercial relations. The arrest nonetheless keeps an advantage of its own: it founds the jurisdiction of the court of the place of arrest within the meaning of the 1952 Convention.

Up to what amount can the owner of the colliding ship limit his debt?

According to the tonnage of the ship, under LLMC 1976, the London Convention of 19 November 1976 as amended in 1996, and Articles L. 5121-1 and following of the French Transport Code. Since the amendments that entered into force on 8 June 2015, a ship of not more than 2,000 tons caps at 3.02 million SDR for personal injury claims and at 1.51 million SDR for other claims. Limitation is broken in case of personal fault committed with intent or recklessly.

How do I obtain the VDR and AIS data before it disappears?

By an immediate written request to the master and to the other owner to preserve the media, then, if they refuse, by an application under Article 145 of the French Code of Civil Procedure for the sequestration and inter partes copying of the recordings. AIS tracks are requested from the port authority in parallel. It is done in hours, not in weeks.

Matters in this field are handled by Hervé Guyader, lawyer at the Paris Bar and doctor of law.