Accidents apparently can (still) happen

In many collision cases the liability and apportionment of blame is either obvious or relatively easy to ascertain, and discussion between the parties rapidly moves on to a consideration of the amount of damages payable. This was recently anticipated to be the case when a member’s vessel was hit by a tug in Constanza. The Romanian courts, however, held that the tug was not liable as the collision was an “inevitable accident”.

The facts were that the vessel was assisted by two tugs leaving Constanza. As the pilot was about to disembark, one of the tugs began to head for the vessel at full speed. At this point its main engine stopped and the tug lost control. The resulting collision caused damage in excess of USD 115,000.

Proceedingswere brought in the Constanza court to recover the costof repairs from the tug owners. The vessel owners contendedthat on the basis of both the Romanian Civil Code and thetug services contract there was a liability on the tug ownersto pay for the repairs. Thecontract contained a clause that gave the “damagedparty a right to claim indemnities to an amount equal tothe damage incurred”. A common sense reading of theclause would indicate that there was a right to claim anindemnity from the tug, assuming that damage was proven.

"Accidents" are not part of the litigator's vocabulary.

The tug owners defended the claim on the basis that the contractual indemnity clause did not apply and they were relieved of liability because Article 762 of the Commercial Code provided that “if the collision took place under fortuitous circumstances or out of force majeure, the damage and the losses originating from such cause do not give the right to claim any indemnities”.

The court disregarded much of the expert evidence advanced in the case on owners’ behalf, although this did not detract from its conclusion that the tug was the actual cause of the damage to the vessel, but still the judge held that the accident had occurred under “fortuitous circumstances”. Therefore, pursuant to Article 762, owners were not able to claim an indemnity.

In applying the law to the facts, the court held that the 1910 International Convention for the Unification of Certain Rules of Law with Respect to Collision between Vessels did not apply, as when it was implemented into Romanian law in January 1913 there was a derogation to the effect that the convention would not produce any effect with respect to actions arising out of contract.

This decision, while no doubt correct under Romanian law, does seem rather inequitable. In the ordinary course of events it would be anticipated that a tug contract attempts to exclude liability on the part of the tug for collision damage (and indeed any damage at all) wherever possible. However, a contract allowing for an express indemnity which can not be upheld in court in the event of a collision where liability is evident gives only cold comfort to shipowners engaging tug services in Constanza.

In most jurisdictions, certainly in the USA and Western Europe, the blame culture is prevalent and “accidents” are not part of the litigator’s vocabulary. Indeed, an argument of inevitable accident would probably be taken as an assumption of liability similar to res ipsa loquitur.¹ Moreover, closer attention to risk management and the prevalence of insurance for risks such as collision usually ensures that contracts are sufficiently well drafted to exclude or limit liabilities. However, as this instance demonstrates, there is no accounting for the idiosyncrasies of local law. Accidents apparently can still happen.