Collision between ships or between a ship and diver

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I collided with another ship: The case of the collision

In the event of a ship collision, it is common for the regime to be applied to be that of collision. Defined as the collision occurring between two seagoing vessels or between two pleasure craft, the collision must occur through the fault of a vessel, obliging the latter to repair the damage it has caused.

Who is affected by the collision?

Article L.5131-1 of the Transport Code provides that the collision rules apply to collisions occurring between ships or between ships and ships, assimilating these notions to “any floating device not moored at a fixed position”.

Windsurfers, kiteboards and jet skis can thus be assimilated to a floating device.

Who is responsible ?

To find out who is the person who must repair the damage caused during a collision, three scenarios must be considered, listed in articles L.5131-3 and L.5131-4 of the Transport Code:

If the collision is caused by the fault of one of the ships, it will be up to the one who committed the fault to repair the damage.
If there is a common fault, it will be necessary to determine the fault of each and to proportion the responsibility to this fault.
Finally, if the collision is fortuitous, it is due to a case of force majeure or if there are doubts about the causes of the accident, the damages will be borne by those who experienced them.
How to prove fault?

To demonstrate that there has indeed been a collision, it is necessary to go through a system of proven fault. The burden of proof rests with the party claiming fault. It may be established by any means, and in particular result from the confrontation of the sea report of the captains of the vessels in question.

From the moment the criminal judge has acquitted the captain prosecuted for homicide or involuntary injuries, the civil judge will not be able to accept proof of fault.

Who has jurisdiction to settle the dispute?

To find out which court has jurisdiction, it will be necessary to check what the vessels involved in the collision are used for and what damage is involved.

Thus, when the collision has taken place between traders and is linked to a commercial activity, it will be brought before the commercial court.

On the other hand, when the damage affects pleasure craft, it will be the civil courts that will be seized.

Finally, from the moment a conviction for homicide or involuntary injuries is attached to the compensation for damages, it will be the criminal court which will have jurisdiction.

As far as territorial jurisdiction is concerned, several possibilities can be envisaged. The parties may choose the competent court between that of the domicile of the defendant, that of the place of collision, that of the port of refuge, or that of the port where the ship was seized.

With regard to criminal jurisdiction, the International Convention of 10 May 1952 reserves it to the courts of the flag State.

How long to act?

From the event, it is possible to act within two years. If ever the event resulted in the responsibility of several people, the one who paid for the other persons responsible will have one year to initiate a recourse action.

I hurt a diver, or a vessel hit me while I was diving, what’s going on?

What should the diver do at sea?

When a person dives in the sea, he has the obligation to hoist an Alpha flag on his boat, or to be equipped with a diver’s buoy. Any glimpse of these distinctive signs entails the obligation not to approach within 100m, in addition to the Mediterranean where the approaching boat must simply adopt an appropriate speed of less than 5 knots.

If a pilot hits a diver, what legal consequences does this entail?

If a ship strikes a person while its pilot has not followed the aforementioned rules, the victim will be able to invoke criminal liability. Thus, an offense of endangering others or manslaughter may be constituted depending on the situation.

In addition to criminal liability, the victim of bodily injury caused by a ship may be compensated civilly. This compensation may be subject to a ceiling provided for in Article 6 of the London Convention of 19 November 1976 on the limitation of liability for maritime claims.

For this limitation to be effective, the London Convention states that the damage must occur during the “operation of the ship”. This expression should be understood as the use of the ship.

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