Iraq / Transport & Logistics
Jawad Khalaf Partner, Head of Litigation - Iraq
Ali Talib Fezea Associate, Litigation
Maritime collision raises many legal issues from several different angles. These angles include but are not limited to: determining the law to be followed and adapting the incident of the collision to determine who is liable for compensation against the damages and losses. This is because most of the collisions are of an international nature in which one of the colliding sides is a foreigner, such as the ship, the owner of the ship, the carrier, or the accident occurs in a foreign port or within international waters. Another angle to consider is whether the two ships belong to different countries, or one of them is national and the other is foreign.
Therefore, to avoid the differing provisions of legislations in each country, it is necessary that countries cooperate to agree on the provisions related to collision and determine the liability for losses and compensation. This article explains the provisions that determine the civil liability for maritime collisions in accordance with Iraqi laws under international conventions including the Brussels Convention of 1910 on the substantive rules of collision and the Brussels Convention of 1952 on civil jurisdiction.
If the maritime collision is in the territorial waters of one of the countries, most of the national legislation entrusts the local courts with jurisdiction to look into the accidents that occur in ports or territorial waters within the jurisdiction of the same. An example of this is the French law, Article (407) which grants the plaintiff the right to file a lawsuit either in a court of the defendant’s country or a French court which has jurisdiction over the said port. The Iraqi law is similar in this respect as stipulated in Article (15) of the Iraqi Civil Law "the foreigner shall be sued before the Iraqi courts in the following cases: c) If the subject of the litigation is a contract concluded in Iraq and its implementation is binding, or if it is related to an incident that occurred in Iraq". This is pursuant to the principle of the state enforcing its law on its entire land, water and air territories.
To reduce the conflict of international jurisdiction in civil cases, the Brussels Convention of 1952 has unified some of the rules related to jurisdiction. The first clause thereof stipulates: “the case may be filed before a court at the defendant’s country or before the court which has jurisdiction over the case in one of its circuits and which is competent to consider most of the cases falling within the proceedings law". Further, the second clause thereof stipulates that the lawsuit may be filed before the court of the location where the defendant’s ship was seized, or the court of the location where the maritime collision occurred. This Convention also grants the disputed parties the right to agree on the court or to refer the dispute to arbitration. Under these rules, deciding on the liable party is made by returning to the cause of the collision. It may be caused by one of the ships, which is the most common and occurs when the captain of the ship mistake as a result of his negligence or non-observance of the international regulations on international sailing, or perhaps the carrier’s mistake by failing to provide the ship with the necessary equipment for sailing such as the lack of equipment or lack of crew.
The partially applicable Ottoman Maritime Trade Law also considered this issue in clause (249/2) which states that the culprit bears the responsibility and shall be solely liable for compensation for the damages arising from the collision. The Brussels Convention of 1910 also stipulates a similar legislation to this provision in its third clause “if the collision occurred due to the fault of one of the ships, the ship causing the damage is obligated to compensate the losses”. These provisions are in fact an application of the general rules of tort liability.
However if the mistake happened between two ships and both of them caused the collision to occur, perhaps the mistake here is between more than two ships, such as between 3 or 4 ships and one or two is damaged; in this case both ships bear the responsibility based on its participation in the collision incidents. In the event the mistake was shared, the responsibility will be on each ship based on its participation in the mistake. If the circumstances were not able to determine that participation or if it appeared that the mistakes were equivalent, then the responsibility shall be divided equally.
The provisions of the partially applicable Ottoman Maritime Trade were ambiguous in this regard. It states that every ship bears a measure of responsibility comparable to its value or price. That is, the expensive ships are victims of this provision even if their mistakes are small and their damages are great.
It is worth mentioning what was stated in the Environmental Protection and Improvement Law No. 27 of 2009, obligates those who caused the damage to be responsible for the compensation and removal of the environmental damage within a certain period of time and make this responsibility assumed.
A collision may occur in the high seas between two ships. Under clause 15 of the Iraqi Civil Law; if one of them is an Iraqi or local ship, a foreigner existing in Iraq has the right to file a case. Accordingly, the Iraqi courts are competent to consider the case if the two parties agreed to refer the dispute to the Iraqi courts regardless of where the collision occurred. The rules for assuming the responsibility are applied according to what is stated above.
In the event a collision occurs, due to any incident which is unexpected and cannot be avoided and if the court is examining the causes of the collision and is unable to determine the causative mistake, collision due to force majeure may be found. Nevertheless, in order for the collision to be considered as a force majeure, both ships must have (i) taken all necessary measures (ii) applied the instructions related to sailing and (iii) not be in violation of the international regulations on preventing collision such as the rules of navigation lights and navigation signs as stipulated in the annex to the Convention for the Safety of Life at Sea of 1960. The ruling for such a case is that the ship bears the damage, as stipulated in clause (249/1) of the Ottoman Maritime Trade Law and also the Brussels Convention of 1910. If the collision occurred accidentally, or was caused by a force majeure, or there was doubt about the causes of the collision, the loss would be on the ship that caused the damage.
By reviewing the current legal texts, it is clear that the law is ill-fit to regulate the modern maritime trade sector and compensation and/or liability in the event of a collision. There is much to look forward to in the draft of the Iraqi Maritime Law which addresses such topics and is in line with international conventions. However, there is no clear time-table as to when the draft will be considered for ratification by the Iraqi Council of Representatives.
For further information, please contact Jawad Khalaf or Ali Talib Fezea.
Published in July 2022
