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What Happened?
On 10 March, at around 09.45, the Portuguese flagged containership, M/V Solong, collided with the M/T Stena Immaculate (sailing under a US flag) while she was anchored off the east coast of England, approximately 9 nautical miles offshore, within UK waters. The Stena Immaculate, thought to be carrying a cargo of 220,000 barrels of jet fuel, was destined for the US military when the collision occurred.
As has been widely reported, the Solong, sailing from Scotland to Rotterdam, reportedly at a speed of 16 knots, failed to alter course and struck the Stena Immaculate, igniting fire onboard both vessels. Both vessels’ crew members abandoned ship, and one crew member is presumed dead. The extent of the environmental damage is still being assessed, though some of the fuel is believed to have burned off. Jet fuel is considered highly toxic to marine ecosystems, and pollution protective measures were deployed immediately to limit any damage.
Commentary suggests that insured losses from the collision could reach approximately USD 300m, driven by multi-policy triggers, and there is a significant risk that a large proportion of liability may fall on the owners of the Solong.
UK: Regulations – actions of the Master
Early indications suggest a navigational error on the part of the Master and crew of the Solong, possibly exacerbated by poor visibility. The Solong’s Master has been arrested by UK authorities on suspicion of gross manslaughter. The Marine Accident Investigation Branch (MAIB) are working in parallel with the police to establish the cause of the incident and the Maritime Coastguard Agency (MCA) continue to support the joint response.
In conjunction with the police, it is likely the MCA will also conduct an interview under caution to assess compliance with safety standards and to identify any regulatory offences in addition to those which are criminal. The Master will have the right to remain silent and/or to have legal representation or a witness present. The MCA may recommend that a Master’s Certificate of Competency be revoked by the relevant issuing authority if they deem it appropriate, as well as to provide other recommendations for penalties and enforcement action more generally (for example, they have the power to detain vessels and to issue prohibitions).
A separate investigation by the MAIB will take place so that improvements and/or recommendations can be made to minimise the risk of similar accidents in the future. The MAIB are not a prosecution authority, but they have jurisdiction over all vessels in UK waters and UK flagged vessels worldwide and can require individuals to answer various questions, with no right to remain silent on the grounds of self-incrimination.
Notwithstanding the huge technical advancements in navigation systems, human factors do often play a significant role in collisions and other incidents at sea, particularly for container vessels where high workloads and fatigue can be contributing factors.
Collision liability
Negligence and breach of duty are the principal torts in issue, and the conduct of the Master and crew will be judged by the standards of prudent seamanship. The respective owners will be responsible for any negligent acts, omissions and defaults of their crew members unless charterparty terms dictate otherwise, but both ships will be under investigation; it is not necessarily the case that the Solong’s owners are solely responsible for example, if it is found that the Stena Immaculate failed to display appropriate navigation lights or there were failings in watchkeeping duties.
The Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGs) deals with the requirement to keep a proper look-out by sight and other means, the need to avoid a collision and the responsibilities between vessels, including that navigation lights are displayed and used, and warning signals deployed. We do not yet know how or why the collision occurred, whether proper navigational technologies such as radar and Automatic Identification System (AIS) equipment were used effectively and/or whether there were appropriate crew members on watch on both vessels, but it would appear that something was amiss given the Solong’s speed and trajectory towards the Stena Immaculate.
What now?
In addition to the investigations that will take place, there are likely to be a myriad of contractual claims flowing from this incident, be it under the respective charterparties, bills of lading, or from salvors, local authorities, et al. Given the potential significant exposure, the ship owners may seek to limit their liability under the Convention on Limitation of Liability for Maritime Claims (LLMC) and/or under the International Convention on Civil Liability for Oil Pollution Damage (CCLC) (albeit reports indicate that the pollution damage has been contained), which could both place a cap on the total compensation payable.
Ship owners/charterers will look to available defenses and of particular relevance here is their (potential) right to limit exposure under the Hague Visby Rules (HVR), if applicable. For example, under Article IV, Rule 2(a) of the HVR, a carrier is not liable for cargo claims resulting from a collision partly or wholly caused by negligent navigation provided that the carrier has exercised due diligence to provide a seaworthy ship at the start of the voyage. Alternatively, if a Both-to-Blame Collision Clause is invoked in the respective bill of lading/ charterparty and both ships are found to be at fault, if the owners of the cargo sue the non-carrying ship, the cargo owner of the carrying ship must indemnify their ship owner for their share of the fault.
Shipowners may also seek to declare general average if they believe the incident involved an extraordinary sacrifice for the purpose of preserving common safety / the property imperiled in the common adventure, but this is likely to be negated if the damages are found to result from only one party’s negligence, such as the Solong.
This incident highlights the multitude of issues involved in shipping disputes and serves as a reminder to ensure your contracts are adequately drafted to protect your interests. It also emphasises the importance of adherence to the COLREGs, proper vessel tracking as well as effective emergency response.
