Maritime Jettison and Ship Collisions: Legal Aspects
Section 1: Jettison
Jettison, the act of casting goods overboard to save a ship, is an ancient maritime practice. During the Middle Ages, it was highly regulated and is still present in current legal texts. Jettison occurs when a ship faces hazards like pirates, sea dangers, or rocks, aiming to lighten the vessel for better buoyancy and to protect lives and the ship itself. This action overrides charter party clauses due to the imminent danger of losing the entire ship and its crew.
From the Laws of Rhodes, several principles are derived:
- There must be loss or damage to property.
- The act must be intentional, aiming to save more valuable assets.
- The sacrifice of goods must result in the salvation of others and people.
- All parties contribute financially to the jettison.
Typically, goods on the deck are jettisoned first as they are considered of lesser value. Some texts suggest jettisoning the “vilest” goods, those of the lowest price and value, first.
Legal Problems and Procedures:
Lawmakers have addressed maritime jettison to prevent abuses. Key questions include who decides on jettison, the criteria for jettison, and its consequences. The process can be divided into three stages: before, during, and after the act.
Before: The captain, with the consent of the goods’ owners (or the ship’s council if owners are absent), decides what to jettison. In emergencies like storms or pirate attacks, a vote may be taken, with the captain making the final decision if merchants are not present. The ship’s clerk records all jettisoned goods.
After: If the ship is saved, compensation is assessed based on the value of goods jettisoned versus those saved. Undeclared valuable goods are not compensated. The Book of the Consulate of the Sea specifies that compensation is based on the departure port price if jettison occurred in the first half of the journey, and the selling price if in the second half.
Jettison expenses are shared among merchants, cargo owners, and those whose freight was saved. The captain can retain saved goods to ensure payment. The York-Antwerp Rules offer flexibility in these matters.
Culpable Jettison: If jettison is caused by undeclared or overweight cargo, the responsible merchant bears special liability. The employer must prove this irregularity.
Section 2: Collisions
Ship collision, while not explicitly defined in the Civil or Commercial Codes, is recognized in maritime law. The Spanish Supreme Court (1939) defined it as a violent encounter between two independent vessels. Key elements include:
- Two or more ships.
- Violent clashes.
- Resulting damage.
- Independence of the ships before the collision.
- A territorial aspect (where the collision occurs).
Law 27/1992 defines a vessel as any navigable platform or floating object. Collisions involve physical contact, although some argue that indirect contact (e.g., displacement waves) can also constitute a collision. The location must be at sea, in ports, or in navigable rivers connected to the sea.
The harmful result is essential for establishing liability. Collisions between vessels of the same company or between a tug and tow are treated differently.
Regulations are found in the Commercial Code (Articles 826-839), maritime criminal and disciplinary law, the 1810 Brussels Convention, the 1952 Civil and Criminal Liability Conventions, ship arrest agreements, international collision regulations, and the 1976 London Convention on Limitation of Liability.
Classification of Collisions:
- Unilateral fault: One vessel is at fault.
- Bilateral fault: Both vessels are at fault.
- Multiple: More than two vessels are involved.
- Fortuitous: Occurs at anchor or due to force majeure; each vessel bears its own damage.
- Doubtful: The cause and fault are uncertain.
Special cases include collisions involving a pilot or warships. Liability extends to the entire ship, damages, and personal injuries. Collisions at sea and in port are treated differently. Marine insurance may cover collision risks, but the guilty shipowner is ultimately responsible.