Section 7 Injury, illness and death – others
3.7.1 General
This section provides cover for a number of frequent and large liabilities in respect of injury, illness, or death to persons on board or in connection with the entered ship other than crew and passengers. It thus covers all categories of persons for whom the Member may be liable but excludes liabilities which are covered elsewhere in these Rules.
Liability in respect of crew members is covered under Rule 3 Section 1 (a), (b), (c), (e) and (f). Passenger liabilities are covered under Rule 3 Section 5.
Liabilities left to be covered by this clause are, for instance, those related to longshoremen, visitors, maintenance and repair people, pilots and persons on board another ship in a collision situation.
As regards crew relatives, see comments under 3.1.8.1.
Provided that an accident can be considered to be “in connection with the entered ship” it may not necessarily have occurred on board for the liability to be covered by this clause. Cargo, stores or equipment may fall from slings hoisted to or from the ship and injure people ashore. A longshoreman may trip on lashing materials left on top of a container discharged from the ship, where the lashing materials belong to the ship and should have stayed there. Trucks or other vehicles belonging to the ship may cause accidents while being moved ashore. The extent of cover for such vehicle accidents is dealt with in the comments under 7.1.14.
3.7.2 Longshoremen
3.7.2.1 General comments on longshoremen claims
The longshoremen liability situation in the U.S.A. is an important factor to be aware of for those who trade their ships to U.S. ports and for those who insure their liabilities. These comments will deal mainly with the situation there. It does not mean that the situation is confined to the U.S.A. Many of the features of longshoremen claims in the U.S.A. are universal and can be applied to the understanding and handling of similar claims elsewhere. The situation in some specific countries will be dealt with separately.
The aim is not to comment on all aspects of longshoremen claims. The comments will be limited to what is required to achieve an understanding of the legal liabilities covered by this clause and of the possibility for the Member and his employees to avoid or reduce such liabilities.
3.7.2.2 The Scindia Standards
3.7.2.2.1 General comments on the Scindia case
A leading case on the duty of care owed by a shipowner to longshoremen was decided by the U.S. Supreme Court in 1981 (Scindia Steam Navigation, Ltd. -v- De Los Santos). It remains good law. It concerned a longshoreman who was struck by cargo while in the ship’s hold. The cargo fell from a pallet being held up by the ship’s winch that was part of the ship’s gear. The winch was operated by another longshoreman. The winch brake had been malfunctioning prior to the accident. The principles laid down by the Supreme Court in its ruling are not limited to situations of winch malfunctioning. They apply generally to the duty of care owed by a shipowner to longshoremen.
The basic principle in the Scindia case is that the shipowner owes the stevedore company and the longshoremen the duty to have the ship and its equipment in such condition that the stevedore may carry on its cargo operations with reasonable safety and if the shipowner fails at least to warn the stevedore of hidden danger which was known to the shipowner, or should have been known to him in the exercise of reasonable care, then he is liable if his negligence causes injury to the longshoreman. This general principle is qualified further in the judgment. Importantly, the Scindia duties are generally understood to be limited in scope. Further, the longshoreman carries the burden of proof to demonstrate actual evidence of a breach to be permitted recovery against the shipowner.
3.7.2.2.2 The duty at turnover
A crucial moment is the time when the ship with its equipment is turned over to the stevedore company for the commencement of the stevedoring activities. The shipowner has the obligation to exercise ordinary care under the circumstances to have both the ship and its equipment in such a condition at that time that an expert and experienced stevedore company will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to both persons and property.
It follows that all ship’s equipment to be used by longshoremen in a U.S. port should be carefully checked out by the ship’s officers or the electrician before arrival in port. To be able to prove this afterwards, the order to carry out the check, the actual performance of the check and the repairs in which it resulted should be recorded in the deck log.
Among other important safety factors to be checked and remedied before the turnover to the stevedore company are the lighting conditions in the holds. The officers should ensure that all parts of the working area are adequately lit.
Container lashings are often released by the ship’s crew before discharging. If so, all lashing gear should be removed from the working area. If tools to release lashings are supplied by the ship, a check should be carried out to ensure that they are adequate and undamaged.
A common cause of longshoreman injury is the use of defective portable ladders. A stevedore company should bring its own ladders and remain responsible for their condition. To avoid liability, the ship’s supply of fixed and portable ladders should be checked before the stevedore company starts work. Deficiencies of fixed ladders should be remedied. Alternatively, any deficient fixed ladder should be made inaccessible to the longshoremen. Damaged portable ladders should be destroyed or made inaccessible.
3.7.2.2.3 The duty to warn
The Scindia case further states that the stevedore company should be warned of any hazards on the ship or its equipment which are known or should be reasonably known to the ship, which are likely to be encountered by the stevedore company in the course of its cargo operations and which are unknown to the stevedore company and would not be obvious or anticipated if the stevedore company were reasonably competent in the performance of its work.
This means that if the ship has a new kind of winch or if the operation of the winches or other equipment differs from what is common or could be expected, someone from the ship should give the stevedore company instructions and advice. Such precautions should be recorded to constitute evidence at a later date, if necessary.
The duty to warn and instruct is linked to the turnover of the ship to the stevedore company. It should not be extended to a duty continuously to supervise the activities of the stevedore company. Absent contractual provisions, positive law or custom to the contrary, the shipowner has no duty to supervise or inspect the cargo operations assigned to the stevedore company. Terms in stevedore contracts which would increase the shipowner’s liability and assume supervisory functions and responsibilities should not be accepted. It is equally important that the ship’s officers refrain from interfering in the performance of the stevedore services which could qualify as supervision and render the ship liable beyond the Scindia standards.
3.7.2.2.4 The duty to intervene
However, under Scindia there is a duty to intervene when the stevedore’s judgement is so obviously improvident that danger to the longshoremen arises from any malfunctioning ship’s gear. If the ship’s officers know of the defect and realise that it presents an unreasonable risk of harm to the longshoremen, the duty of the ship is to intervene and effect the necessary repairs. This obligation does not extend to create a duty to conduct inspections to determine if any such hazardous conditions exist following turnover of the vessel to the stevedore.
The Scindia ruling states as a general matter that the shipowner is entitled to rely on the stevedore to avoid exposing a longshoreman to unreasonable hazards and owes no duty to the longshoreman to inspect or to supervise cargo operations.
3.7.2.2.5 Negligence in active interference
If the ship’s officers or crew involve themselves in cargo operations and cause injury by negligence, the ship may be liable.
3.7.2.2.6 Controlled areas
The ship may be liable for failure to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas or from equipment under the active control of the ship during the stevedore operations.
A practical example is bunkering or transfer of bunkers during loading or discharging operations. Such activities should be reported to the stevedore foreman or safety supervisor prior to commencement and before the ship develops a list which may cause shifting of cargo in the holds. Under the Scindia doctrine, the ship may rely on the stevedore company to avoid any cargo shifting because a list is developed due to uneven loading or discharging of the cargo.
3.7.2.2.7 Contributory negligence
Observations and evidence of behaviour which indicate contributory negligence on the part of the injured longshoreman can constitute compelling arguments in favour of the Member. Even grossly negligent acts, however, such as riding on containers, pallets or hatch beam lifts, or unauthorised presence in holds with the obvious intention to steal, will not automatically relieve the ship of liability if the shipowner is found to be in breach of the basic duty of care owed to longshoremen. It is therefore recommended that the shipowner ensure the crew follow and document compliance with the vessel’s safety management system, planned maintenance system, and otherwise create and maintain accurate records demonstrating compliance with the duty to maintain a reasonable safe place to work for longshoremen.
3.7.2.3 Measures to take when an accident has occurred
3.7.2.3.1 The burden of proof
As described in comments under 4.1.4, the law usually states who should provide the facts when an accident has occurred and against whom it should be held if the facts are not available. This is called the burden of proof. In longshoremen injury or death cases the burden of proof is upon the claimant. On the other hand, courts tend to make it a low hurdle to overcome. Therefore, it is important that the shipowner is proactive and collects his own evidence. At the same time, and in conjunction with the Club and the Club’s lawyers, it is important to take into account the broad scope of discovery in U.S. litigation and take measures to try and ensure that evidence gathered for claim investigation and exposure analysis is shielded from disclosure to the degree possible by applicable work product and/or attorney-client privileges.
3.7.2.3.2 Call in Club correspondent
Such activities should be undertaken as soon as there has been an accident on board or even when there is just a rumour that an accident has occurred. The first thing to do is to contact the nearest Club correspondent. Details can be found in the Club’s List of Correspondents on the website. In most U.S. ports the Club’s correspondent is a law firm ready to assist and to attend on a 24 hour basis. Where the correspondent is not a law firm, he will assist in appointing a suitable lawyer to attend. See comments under 10.4.4.6.
It should be made clear to officers and crew that the Club correspondent and lawyer are there to protect the shipowner’s interests. They should have the best possible co-operation and be given full access to the ship, its equipment and documents. People who serve or repair the ship or its equipment should be instructed only to report to the Master and to the Club correspondent or lawyer.
3.7.2.3.3 Secure evidence
Organised investigations undertaken immediately should aim to secure as much factual information and evidence as possible for future use. It is important that notes are made immediately containing the name, address and status of all people who witnessed the accident or who were otherwise involved or in possession of information. The notes should contain the matters which they witnessed and observed. Even a negative statement is of value. A longshoreman who has made a contemporary statement to the effect that he saw nothing and did not know anything about the accident, will find it hard to come forward later to testify against the ship.
Any broken gear or equipment which may have caused or contributed to an accident should be collected and stored in a safe place. It should be tagged for identification in such a way that a court will be satisfied that it is the right item. If the shipowner is unable to produce the equipment, a court may presume that it was defective and intentionally suppressed as evidence. Another reason why evidence should be secured urgently is that it may otherwise be removed by the stevedore company or longshoreman. When presented in court as evidence against the shipowner, there is no guarantee that it is the same piece of equipment or in its original condition.
Winches or other equipment which may have malfunctioned, should be investigated and tested by an independent surveyor to establish proof as to the cause of the accident and to prevent a reoccurrence. In a winch accident an officer should immediately check that the safety buttons have not been taped over or otherwise made inoperative or disconnected by the stevedore’s winchman.
Accidents may be suitably illustrated by sketches based on observations and measurements on the spot. Photos or video recordings are even better. Before photos are taken the area should be cleared to contain what is necessary to demonstrate the scene of the accident. Photos of ladders should be taken from the bottom up, not the top down. Documenting the light conditions at the location of an accident is also important.
3.7.2.4 Stevedore’s lien
3.7.2.4.1 Background of stevedore’s lien
Before 1972 the shipowner could recover part of the settlement paid to a longshoreman from the stevedore company and its liability underwriter in cases where both the shipowner and the stevedore company were at fault. By an amendment of the Longshore and Harbor Workers’ Compensation Act of 1972, the compensation benefits payable to an injured longshoreman by the stevedore company were increased. The stevedore company was in turn made completely immune to claims from the shipowner, even to the extent that the shipowner was no longer able to recover the stevedore company’s proportion in an accident with shared liability. Additionally, the stevedore company has a lien in respect of the compensation benefits it has paid out, over any amount recovered by the longshoreman from the shipowner. The stevedore company is entitled to full compensation as a result of the lien. Moreover, it has no obligation to contribute proportionately to the longshoreman’s costs of making any recovery. Accordingly, in order to collect any additional compensation, the longshoreman needs either to recover damages over and above the amount of the stevedore company’s lien or to have a firm commitment from the stevedore company and its liability underwriter that they will waive the lien. Either solution will affect the amount at which settlement of the claim against the ship can be concluded, thus making the stevedore company an interested party in those negotiations.
3.7.2.4.2 Effect of stevedore’s lien
The stevedore company has the same interest as the injured longshoreman to collect evidence to be used against the shipowner. The stevedore foremen and other people acting on behalf of the stevedore company should, therefore, be regarded as potential claimants, the more so as the stevedore company has a right to bring suit against the shipowner to recover any compensation it pays out to the longshoreman. So, even if the longshoreman declines to file suit for his injuries, there is no reason to share any information or evidence with him. On the contrary, those on board should secure the evidence before it has been removed by the stevedore company or longshoremen to be used against the shipowner.
There may also come a day when the stevedore company is brought into any settlement discussions. Usually, the Club correspondent tries to persuade the stevedore company and its liability underwriter to waive the compensation lien before the longshoreman’s claim is settled. As the shipowner remains the client of the stevedore company, the Club may seek the Member’s co-operation in bringing commercial pressure to bear on the liability underwriter in order to reach a pragmatic solution. It follows from Rule 10 Section 4 that the Member has an obligation to assist the Club in this respect.
3.7.2.5 Litigation
3.7.2.5.1 General comments on longshoreman litigation
The probability is high that a longshoreman injury or death claim will be litigated. Due to the potential size of these claims they are often litigated even if the outcome is difficult to predict and the defence costs are very high. The Member’s defence is handled by the Club’s lawyers. The handling of the cases including the cost aspect is closely monitored by the Club.
The contingency fee system provides legal assistance to a longshoreman at no costs. It means that his lawyer keeps an agreed percentage of the settlement or award as his fee. Should he lose, he receives nothing. On the other hand, neither the longshoreman nor his lawyer is obliged to compensate the legal costs incurred by the Member and the Club in the event the claim is successfully defended. Settlement at an early stage may, therefore, be more advantageous to the Club and to the Member’s loss records than a comparatively expensive victory in court.
3.7.2.5.2 Evidence
The safest way to a successful defence is the complete co-operation of the Member and his employees in providing the evidence necessary to discharge the burden of proof and convince the court that there is no liability on the part of the shipowner. How this should be done is explained in comments under 3.7.2.3.3 and 4.1.4.
3.7.2.5.3 Witnesses
It is often necessary to provide one or more of the ship’s officers and crew to give testimony, either by way of deposition outside the trial or at the hearing of the case in court or both. Any witness will also be subject to cross examination by the claimant’s lawyer. The Club will pay the additional costs related to the attendance of witnesses including reimbursement of the additional, reasonable costs of providing relief officers and/or crew while the witnesses are away from the ship. See comments under 10.4.4.4.
The latest techniques are used to support testimony and evidence. Depositions are recorded, computer reconstructions of accidents can be made and models used to make the judges and jurors understand technically complicated events. It is also common for depositions to be taken via video link if and to the extent deemed appropriate, without compromising the quality of the witness’s evidence.
3.7.2.5.4 Interrogatories and questionnaires
During litigation the claimant may file a legal request for the presentation of documents or other information. The request, called either an interrogatory, questionnaire or request for admissions, can concern the vessel’s particulars or facts regarding the ownership of the vessel or shipowning entity. It may seem unreasonably extensive and sometimes indicates that the claimant is on a fishing expedition for information to be used against the Member. Still, the Member’s full co-operation is vital to provide the information requested unless advised otherwise by the Club’s lawyer. The filing of answers to interrogatories and questionnaires has to be made before a certain date set by the court. Failure to comply with the time limit may jeopardise the Member’s position in the litigation. The Member has an obligation under Rule 10 Section 4 to supply the Club and its lawyer with full particulars in order to file a suitable answer in court in a timely manner.
3.7.2.5.5 Class actions
3.7.2.6 Settlements
3.7.2.6.1 General comments on settlements
In any personal injury case, even in litigation, settlement possibilities are always carefully considered. Elements which affect the decision as to whether to settle or not include (1) the expected effect of applicable law, (2) the strength and availability of witnesses and evidence, (3) the costs of proceeding to trial and any subsequent appeals as well as (4) any possible negative effects of an adverse outcome as a precedent.
3.7.2.6.2 Effects of witnesses and evidence on settlements
The Member can effectively support the element under (2) by ensuring the attendance of sufficient and convincing witnesses. The mere fact that the Club can demonstrate to the claimant that the Member is determined to produce witnesses to testify at the trial can have a positive effect on settlement possibilities. It sometimes happens that cases are settled on the courtroom doorstep and that witnesses already on their way to the trial have to be recalled. However, their efforts will not have been in vain. The fact that they were being flown in will have been a significant factor in attaining a favourable settlement.
3.7.2.6.3 Waiver of stevedore’s lien
As previously mentioned, the stevedore company may be brought into the settlement discussions in order to waive, or partially reduce, the effect of its lien.
3.7.2.6.4 Releases
Eventually the settlement is affected against a release executed by or on behalf of the claimant. The purpose of a release is to ensure that the settlement is final and that it eliminates any possibility for the claimant to raise new claims for compensation from the Member or from any affiliated party for the same accident or incident. A release should transfer the claimant’s rights to the Member and/or the Club if a recourse action is justified to recover the settlement amount, for instance from the Charterers under the terms of the charterparty. As regards the Charterer’s liabilities for longshoremen claims, see the comments below under 3.7.2.8. The drafting of a suitable release and its proper execution is made and supervised by the Club’s lawyer.
A settlement will provide for the payment of the agreed amount to the claimant or his lawyer against a general release. It follows from Rule 2 and the pay-to-be-paid principle that the settlement amount should be paid by the Member.
3.7.2.6.5 Structured settlements
Settlements are usually in the form of a lump sum, cash payment basis. This satisfies the need for the Member and the Club to know the final extent of the loss and to close the case upon settlement. A claimant, however, may find it difficult to manage a large cash payment. For him, the money should be available as long as the need for it exists and that could be for the rest of his life. In such a case, a structured settlement may present a more attractive solution for both parties.
A structured settlement normally means that the claimant receives continuous payments for life or up to a certain age on a regular basis. It can be combined with initial cash payments to adapt the claimant’s residence to his needs, to buy rehabilitation equipment, pay for projected expenses of daily care, or to pay his legal fees. The structured settlement is funded by the Club paying a fixed lump sum premium to a trust fund or life insurance company, which assumes all future payment obligations in relation to the claimant. The Club has longstanding established contacts with firms who can co-ordinate all structured settlement activities and assist them to arrive at a quick final solution. A structured settlement allows the Club to close its book on the case. This limits the effect on the Member’s record. The overall costs are often less than the lump sum cash payment which would have been required to settle the case.
Both claimants and courts are increasingly receptive to structured settlements. The concept is commonly used in the U.S.A. and typically requires court approval. Similar arrangements can be made elsewhere.
3.7.2.7 Asbestosis and other vessel related long-term illnesses
Claims may be filed by or on behalf of longshoremen for long term injury or illness related to work on board vessels. Such claims may be for asbestosis contracted by the inhalation of asbestos fibres in cargo holds or from poisoning by carbon monoxide exhaust fumes from equipment used in the holds or cargo deck. Such exposure occurs over a long period of time and during service on board many ships.
Liability, if any, is covered under this section, provided it is based on negligence (in tort) or on a stevedoring contract or other agreement approved by the Club according to Rule 10 Section 2.
3.7.2.8 Charterer’s liability for longshoremen claims
3.7.2.8.1 General comments on Charterer’s liability
For many years longshoremen personal injury claims where considered only to concern the owner of the ship. This situation has changed. In an increasing number of cases, Charterers are sued directly by longshoremen or are impleaded by the shipowner.
Up until 20 February 2016 a Charterer entered with the Club in his own right for Charterers’ Liability was covered for his liabilities under Rule 9 of the Rules for P&I Insurance. Since 20 February 2016 a Charterer entered in his own right is instead covered for liabilities as per the Rules for Charterers’ Insurance.
As regards claims handling, this means that a Charterer entered in his own right should, just as an owner entered with the Club, report any known accidents to the Club and its local correspondent and prepare his defence from the outset of a case, either against a claim from the injured longshoreman or from the shipowner under the charterparty.
3.7.2.8.2 Operational control
In a U.S. case from 1936 (Ove Skou v. Herbert) the court held that a New York Produce Exchange form charterparty clause 8 (see comments under Charterers’ Liability 2.2) did not on its own provide a basis for a claim against the Charterer by a longshoreman injured in the course of stevedoring operations. The Charterer was considered not to have assumed operational control over the loading/discharging. However, situations can and do arise where the Charterer is considered to have assumed such operational control so that liability would follow.
So far, it has not been possible to define, conclusively, the practical situations where sufficient operational control has been undertaken to engage a Charterer’s liability. This will vary from case to case and from court to court, often depending on the practice of the Court of Appeal in the circuit to which the local court belongs. In a case from 1973, the court held that the Charterer had not assumed operational control simply because he had a supercargo on board.
The New York Produce Exchange form charterparty clause 8 has been interpreted differently in other circuits than that in which Ove Skou v. Herbert was decided. Two other circuits have held that the clause operates to shift the liability for discharging operations to the Charterer. As the liability was considered to have been contractually assumed, the courts refrained from measuring the degree of operational control.
3.7.2.9 Nature of claims
See comments under 3.5.8.
3.7.2.10 Compulsory longshoreman compensation insurance
In some countries a stevedore company, as the employer, is obliged by law to affect a no-fault accident and life insurance coverage for longshoremen assigned to work on a ship. The ensuing insurance premium is then charged to the shipowner, operator or Charterer as an item on the invoice for the stevedoring services provided.
The Group clubs agreed previously to issue letters of indemnity or make other arrangements so that such separate insurance was unnecessary. This practice has, however, been discontinued. The concept of no-fault cover is inconsistent with the traditional nature of P&I as a liability insurance. See comments under 2.3. Furthermore, it is against the idea of mutuality that such easily calculable running costs for certain destinations should burden the Club as a whole.
3.7.3 Visitors
3.7.3.1 General comments on liability for visitors
A ship is visited by many people. Whilst on board they run the risk of being killed or injured. If so, they or their dependents may file claims for compensation from the shipowner. Compensation may be due legitimately if the claimant can prove that the death or injury was caused in part or wholly by the negligence of the shipowner, his servant or agent. Such liability is covered under this section.
Any incident brought to the ship’s attention must be immediately and thoroughly investigated and reported to the Club. Evidence and testimony must be secured. The Club’s local correspondent should be called in to assist.
3.7.3.1.1 Application to Stay On Board
Although a Member’s legal liability for the injury, illness or death of a visitor on board the entered ship is covered under this Rule, it is recommended that visitors are requested to sign and submit an Application to Stay On Board before coming on board. The purpose is to avoid illegitimate claims but also to ensure that the visitor has separate insurance cover for illness, accident, luggage and third party liability. This will protect the member’s loss record from illegitimate and contrived claims, but it will not exclude legitimate claims for which there is cover under the P&I Insurance.
A copy of the Application to Stay On Board recommended to be used can be provided by the Club.
3.7.3.2 Professional visitors
One category of visitor is those who are regularly on board on account of their profession, such as repairmen, customs, police or Coast Guard officials as well as people selling or delivering supplies. This category should be fairly familiar with the risks inherent in being on board a vessel. Although a court will probably take that into account, it is important that all required precautions are taken on board to comply with requested safety standards.
3.7.3.3 Occasional visitors
Occasional visitors such as guests at receptions and dinner parties on board are less aware of the risks involved in being on board a ship. Safety precautions on board have to take that into account. The risks should be adequately pointed out in invitations and crew members or watchmen should be posted at critical locations such as the gangway or ladders to assist and warn visitors if needed. It is recommended that visitors, if appropriate, sign an Application to Stay On Board.
3.7.4 Travelling repair teams
Shipyards and other firms specialised in maintenance and repair work, supply repair teams to travel with the ship and to work on board. The Member’s Common Law liability for death or injury based on negligence is covered under this section.
Members are advised not to sign on repair teams as crew members. That risks increasing the Member’s obligations beyond that which would otherwise apply under applicable law. On the contrary, the contract under which their services are hired should reflect that they are the employees of the contractor and that the contractor’s insurance in respect of the repair team is endorsed to provide cover for the vessel’s interests. It is important that the division of liabilities between the parties is clearly set out in such contracts to allow Members to identify any risks that may not be covered under their P&I Insurance. Members may present such contracts to the Club for review and assistance.
In some countries, the presence of repair teams on board may constitute a violation of local law and regulations to protect unions of ship repair personnel. Members should stay informed of any such regulations in ports of call before hiring a repair team. Generally, there is no cover under Rule 7 Section 6 for fines in respect of violation of such laws. Nor will a Member be compensated for the costs of repatriating a repair team if based on contract or imposed by a law of which the Member ought to have known.
3.7.5 Pilots
This section provides cover for a Member against liability based on negligence for the death of or injury to a pilot on board or providing services to the entered ship. Liability which follows from the contract for pilot services is covered only if the contract is customary and a prerequisite for obtaining the pilot services: see the comments under 10.2.6.5.
3.7.6 Stowaways and refugees
The cover provided by Rule 3 Section 8 is limited to the expenses of having stowaways and refugees on board and landing them in a suitable port. If killed or injured whilst on board they may claim against the shipowner for compensation. If a Member is held liable on account of negligence, cover is provided by this section.
3.7.7 Relatives of crew
As regards relatives of crew see the comments under 3.1.8.1.
3.7.8 Collision liability for death or personal injury
3.7.8.1 General comments on collision liability for death or personal injury
The Member’s liability for collision with another ship is covered under Rule 7 Section 2. The cover under that Rule is limited to liabilities in relation to the owner of the other ship for loss of or damage to that ship. However, there may be other liability consequences of the collision, such as the death of or injury to crew members, passengers or other people on board either of the colliding ships. As loss of life or personal injury is excluded under any Hull policy, cover is provided by the P&I Insurance. As regards persons on board the Member’s own ship, liabilities to the crew are covered under Rule 3 Section 1. For liabilities to relatives of the crew, see the comments under 3.1.8.1. Liabilities to passengers are covered under Rule 3 Section 5. Liabilities to other categories of persons on board the entered ship, as well as the Member’s liabilities to persons of any category on board the other ship are covered under this section.
The handling of the death or personal injury part of a collision case requires transparency and close co-operation with the Hull underwriter of the entered ship. This is ensured if the vessel is entered for both Hull and P&I risks with the Club.
3.7.8.2 Effect of joint and several liability
Under the Brussels Collision Convention of 1910 (the Collision Convention), colliding ships are jointly and severally liable for any death or personal injury caused by the collision. Provided that both ships are at fault to some degree, the claimant can direct his claim in full against either of them.
The claimant’s choice of target will be influenced by his chances of a successful recovery. This depends on the shipowner’s rights of limitation of liability and on contractual defences in passenger tickets.
The compensation which either ship is forced to pay for death or personal injury will constitute a part of the overall costs to be apportioned between the two colliding ships in accordance with the degree of fault. The principles for apportionment of collision liability are described in the comments under 7.2.3.
It follows from the Collision Convention that in such an apportionment the owner of the colliding vessel may rely on any defence which would have been available if the claim had been made against him in the first instance.
When the final apportionment of collision liability has been assessed, the Member will be reimbursed under this section for unrecoverable costs paid in respect of the death or personal injury of persons who were neither crew nor passengers on the entered ship.
3.7.9 Other death or injury claims in respect of persons
There can be a great variety of situations in which the ship is targeted with claims for death or injury and where the connection is distant and the causality vague. It may be alleged that a swimmer on a distant beach was drowned by wash from the ship or that a crew member killed a man in a local bar during shore leave.
Such claims should always be reported to the Club together with all available details and evidence required to analyse the liability position and the question of cover under these Rules.