In a collision, damages are owed by the ship whose fault is proven; where the cause is doubtful or due to force majeure, each ship bears its own loss, and shared fault is apportioned according to its seriousness. Evidence is gathered within twenty-four hours, through the master’s report, recordings and survey, and the claim is time-barred after two years.
On a night of mistral, a sailing boat moored to a buoy drifts, fouls the mooring of a motor launch and drags it onto the rocks of the breakwater. The launch is lost. Its insurer pays the owner, then turns against the owner of the sailing boat: he had not warned the harbour master, he had left his boat at five in the morning in a strong wind, he had kept no watch. The court of appeal rejects every argument, and the Cour de cassation upholds the decision: the cause of the collision was the breaking of the mooring chain, whose strength the yachtsman did not have to check, and the negligence alleged, even if established, came after the collision and did not cause it (Cass. com., 12 January 2022, no. 20-14.135).
This case sums up collision litigation: it is not enough for one ship to have touched another for liability to arise. There must be a fault, a causal link, evidence, and a claim brought within a short time. Here are the rules, as they apply to a container ship as much as to a ten-metre sailing boat.
What the law calls a collision
A collision is a collision between ships, including warships, or between ships and inland navigation vessels (article L. 5131-1 of the Transport Code). Any floating craft not moored at a fixed position, including maritime drones, is treated as a ship. By contrast, striking a quay, a fixed buoy, a pontoon or a port structure is not a collision: it falls under the ordinary law of liability and, for public works, under the special regime of damage to the public domain and the administrative courts.
The regime applies wherever the collision occurs, on the high seas, in territorial waters or in a port (article L. 5131-2), and it extends to damage one ship causes to another without contact, by a manoeuvre, a failure to manoeuvre or non-compliance with regulations (article L. 5131-7). The bow wave of a ship that passes too fast and too close and breaks the mooring lines of a boat at a pontoon is a collision within the meaning of the statute. The Code reproduces the Brussels Convention of 23 September 1910 for the unification of certain rules of law with respect to collisions between vessels, to which France is a party, so the same principles govern international collisions.
Who is liable: fault must be proven, never presumed
The Transport Code organises three cases.
If the collision is caused by the fault of one of the ships, damages are owed by the ship at fault (article L. 5131-3, paragraph 1). The word ship here means the shipowner, owner or operator, who answers for the faults of the master, the crew and the pilot, even where pilotage is compulsory (article L. 5131-5).
If the collision is accidental, due to force majeure, or if its causes are in doubt, each ship bears its own loss, whether one or both ships were at anchor (article L. 5131-3, paragraph 2). That is the rule applied in the mooring buoy case: the breaking of the chain, which caused the collision, was attributable to neither ship.
If both ships are at fault, the liability of each is proportionate to the seriousness of the respective faults, and in equal shares if the proportion cannot be established or the faults are equivalent (article L. 5131-4). Damage to the ships, their cargoes and the property of persons on board is borne in that proportion, without joint liability. For personal injury, by contrast, the ships at fault are jointly and severally liable to the victims, and the one that has paid more than its share has a recourse against the other.
The key point is that there is no presumption of fault. The 1910 Convention abolished the old presumptions, and the claimant must prove the fault, the loss and the causal link between them. A fault with no causal link is not enough: failing to warn the harbour master, or leaving the boat, does not create liability if the collision would have happened in the same way. A fault after the collision cannot have caused it either. And fault by a ship at anchor is not excluded in principle: insufficient anchoring when bad weather has been forecast is a fault, as the Cour de cassation accepted in another dragging case, while refusing to treat it as inexcusable fault (Cass. com., 19 September 2018, no. 17-16.679).
The Collision Regulations
Fault is assessed first against the International Regulations for Preventing Collisions at Sea 1972 (COLREG, known in French as RIPAM), in force in France since 15 July 1977 under Decree no. 77-733 of 6 July 1977. They apply to all vessels on the high seas and in all waters connected with it navigable by seagoing vessels, so to sailing yachts as much as to merchant ships.
A few rules come up in almost every file. Rule 5 requires a proper look-out by sight and hearing at all times, by all available means. Rule 6 requires a safe speed suited to visibility, traffic, manoeuvrability and night conditions. Rule 7 requires all available means, radar included, to be used to determine whether risk of collision exists, and states that a steady compass bearing of an approaching vessel indicates such a risk. Rule 8 requires positive action taken in ample time. Rules 13 to 17 set priorities between vessels in sight of one another: an overtaking vessel keeps out of the way; when two vessels are crossing so as to involve risk of collision, the one that has the other on her starboard side keeps out of the way; and the stand-on vessel keeps her course and speed until she must herself act to avoid collision. Rule 18 organises the hierarchy between sailing vessels, power-driven vessels, vessels engaged in fishing and vessels restricted in their ability to manoeuvre. Rule 19 governs conduct in restricted visibility. Finally, Rule 2 recalls that nothing exonerates any vessel from the consequences of neglecting any precaution required by the ordinary practice of seamen or by the special circumstances of the case.
In ports, channels and anchorage areas, special police regulations, harbour master instructions and local speed rules are added. A collision between a ship at her berth and a ship manoeuvring is often decided on compliance with those regulations, on the presence of a pilot and on coordination with the tugs.
The evidence to gather in the first hours
A collision file is built in the first twenty-four hours, not when proceedings are issued. What is not recorded then is lost.
The master’s report (rapport de mer) comes first. The master must draw up a detailed report on accidents at sea and extraordinary events during the voyage (article R. 5412-7 of the Transport Code). It may be sworn before the president of the commercial court, or before a judge of the judicial court where there is no commercial court, and is filed with the commercial court registry (article R. 5412-8). Abroad, it is sworn before the French consul (article R. 5412-9). The report describes position, course, speed, visibility, wind, sea, lights and signals, manoeuvres, the time of each event, VHF exchanges and the damage observed. It binds its author; written too quickly or too favourably, it turns against him when compared with the recorded data.
Next come the recordings. On merchant ships, the voyage data recorder (VDR) keeps for a limited time the navigation parameters, helm and engine orders, radar images and bridge conversations; it must be saved immediately, or it is overwritten. AIS data are kept by port authorities, the regional coastguard centres (CROSS) and private providers, and allow the tracks of both ships to be reconstructed minute by minute. The ECDIS, the deck log, the engine log, the radio log, the pilot’s records, port vessel traffic service recordings and terminal cameras complete the picture. On a pleasure boat, the GPS plotter, the navigation tablet, photographs and phone videos and messages exchanged with the harbour master serve the same purpose.
Evidence of the scene follows: photographs of the damage and of the contact marks, whose height and angle show speeds and headings, a report by a commissaire de justice, a joint survey to which the other party and the insurers are invited, retention of broken mooring lines, and records of the mooring buoy. Météo-France data and the bulletins broadcast by the CROSS establish what was foreseeable.
Witness statements, finally, are taken while memories are fresh: crew, passengers, pilot, boatmen, other ships present, neighbouring yachtsmen. They are formalised in statements complying with article 202 of the Code of Civil Procedure.
Where the other party holds evidence it refuses to disclose, the VDR of its ship, its logs, its communications, article 145 of the Code of Civil Procedure allows an investigative measure to be obtained in summary proceedings before any trial: appointment of an expert, sequestration of recordings, an order to disclose subject to a daily penalty. The application must be made before the data disappear, which means acting within days.
The investigation of the French marine accident investigation office (BEAmer) is of a different nature. Its only purpose is to prevent future accidents, not to establish liability, and its conclusions do not bind the court. Its report remains a useful document, because it reconstructs the facts from the technical data, but it does not relieve the parties of their own survey.
Arresting the ship that caused the collision
A foreign ship that has caused a collision leaves as soon as she can. Arrest is the way to hold her until security is obtained. For ships flying the flag of a State party, it is governed by the Brussels Convention of 10 May 1952 on the arrest of seagoing ships, which lists collision among the maritime claims allowing arrest, and by the Transport Code for other ships.
Arrest is obtained ex parte, without a hearing, from the enforcement judge or the president of the commercial court, on showing a claim that appears well founded in principle. It is lifted against security, in practice a letter of undertaking from the P&I club of the arrested ship, for an amount covering the claim in principal, interest and costs. Arrest is also the fastest way to get the other side to appoint a lawyer, disclose the name of its insurer and open discussions.
The arrested shipowner can, for its part, obtain release by constituting a limitation fund, which caps all claims arising from the collision, unless it is guilty of inexcusable fault (articles L. 5121-3 and L. 5121-9 of the Transport Code).
Time limits
A claim for collision damage is time-barred two years after the event (article L. 5131-6, paragraph 1). This is a short period, shorter than the five-year ordinary limitation period, and it runs against everyone, including the subrogated insurer, which has no more rights than its insured.
The recourse action of a ship that has paid personal injury victims more than its share is time-barred one year after the date of payment (article L. 5131-6, paragraph 2). The period does not run where the ship liable could not be arrested in waters under French sovereignty, unless it is a State ship or one assigned to a public service (article L. 5131-6, paragraph 3).
Only the acts provided for by the Civil Code interrupt limitation: a court claim, even in summary proceedings, a protective measure or an act of enforcement, and the debtor’s acknowledgement of the claimant’s right. A letter before action, an exchange of letters with the other side’s insurer or an amicable survey interrupt nothing. Endless negotiations are the first cause of time-barred claims in this field; the answer is simple, proceedings on the merits or a summary application for a court expert before the two years expire, or a written standstill agreement.
The time limits of hull and liability policies must also be observed: they require the loss to be notified quickly and provide a two-year limitation period for the insured’s claims against the insurer.
The port, the mooring buoy and the third party liable
A collision in port raises an extra question: the liability of the operator of the facilities. Where the cause of the collision is the failure of a mooring buoy, a collective mooring or a ground chain, or the failure of a pontoon, both ships may have committed no fault and each bears its own loss under article L. 5131-3, paragraph 2. The claim then turns to the operator of the port or mooring area, whose maintenance obligation is at stake.
That claim changes jurisdiction. The structures of a public port are public works, and the liability of their operator falls to the administrative court, on the basis of lack of normal maintenance; the regime favours the user, who does not have to prove fault but only the link between the damage and the structure, the operator having to show normal maintenance. Where the mooring area is run by a private concession holder or an association under a contract with the boat owner, liability is contractual and falls to the ordinary courts. In both cases, evidence of the condition of the mooring before and after the accident, of maintenance inspections and of diver reports is decisive.
Jurisdiction and governing law
Between merchant ships, the dispute falls to the commercial court; for a collision involving a non-professional yachtsman, to the judicial court. The Brussels Convention of 10 May 1952 on civil jurisdiction in matters of collision allows the claimant to sue in the court of the defendant’s domicile, in the court of the place where the ship was or could have been arrested, or in the court of the place of the collision where it occurred in a port or inland waters. The Brussels I bis Regulation supplements these rules within the European Union.
On the merits, French law applies to collisions in French waters and to French ships, and the rules of the 1910 Convention apply between ships of States parties wherever the collision occurs. The COLREG are universal. Limitation of liability is governed by the 1976 London Convention and the Transport Code.
What the firm does
The firm acts from the first hours after a collision, for the shipowner, the yacht owner, the charterer, the shipper or the insurer.
It organises the preservation of evidence: drafting and swearing the master’s report, saving the VDR, requesting AIS data, a formal report of the scene, convening a joint survey, and an application for an investigative measure under article 145 of the Code of Civil Procedure. It arrests the ship or obtains release from arrest, negotiates the P&I club’s security, and constitutes the limitation fund where the shipowner’s interest requires it.
It then carries out the analysis of fault under the COLREG and port regulations, with nautical experts, brings the claim on the merits within the two-year period, and defends or challenges the apportionment of liability before the commercial court, the judicial court or the administrative court where the port operator is involved.
For the full collision regime, from apportionment of fault to procedure, see the firm’s reference page: ship collision, liability, compensation and procedure; if a tug or third party intervened after the collision, the question of its reward falls under the law of salvage.
Further reading: Container damaged or lost: who is liable, and how long you have.
Frequently asked questions
Does a collision require contact between the ships?
No. The collision regime also applies to damage one ship causes to another by a manoeuvre, a failure to manoeuvre or non-compliance with regulations, without contact, for example through her bow wave (article L. 5131-7 of the Transport Code).
Who must prove fault in a collision?
The party claiming damages. There is no presumption of fault. The claimant must prove the other ship’s fault, its own loss and the causal link. Where the causes are in doubt, each ship bears its own loss (article L. 5131-3).
Can a ship at anchor be liable for a collision?
Yes, if it committed a causative fault, for example insufficient anchoring when bad weather had been forecast. But it is not liable where the cause is the failure of a mooring buoy whose strength it did not have to check (Cass. com., 12 January 2022, no. 20-14.135).
What is the time limit for a claim after a collision?
Two years from the event for the damages claim, and one year from payment for recourse between ships jointly liable for personal injury (article L. 5131-6). Only court proceedings, a protective measure or an acknowledgement of liability interrupt that period.
How can the other ship’s recordings be obtained?
Through a summary application under article 145 of the Code of Civil Procedure, before any trial, seeking sequestration of the VDR, disclosure of logs and AIS data, or appointment of an expert. It must be made within days, before the data are overwritten.
What is a master’s report and what is it for?
The detailed report the master draws up on any accident at sea (article R. 5412-7). It may be sworn before the president of the commercial court or the French consul and filed with the registry. It is the first document in the file, but it carries no more weight as evidence than the other material.
Are both ships jointly liable?
Only for personal injury. For damage to ships, cargoes and property, each ship at fault answers only in proportion to its fault, without joint liability (article L. 5131-4).
Can the ship that caused the collision be arrested?
Yes. Collision is a maritime claim that allows the ship to be arrested, in France as in the States party to the 1952 Brussels Convention. The arrest is lifted against security, usually a letter of undertaking from the ship’s P&I club.
Hervé Guyader, avocat at the Paris Bar, doctor of law.