This action arose from a collision in the international waters of the Dover Strait in the English Channel between the Kariba, the Tricolor and the Clary. The Collision Convention 1910 applied, and it was agreed that liability for any claims among cargo interests would be determined in accordance with art 4 of the Collision Convention 1910 (see In re Otal Investments Ltd v Capital Bank Public Ltd Co (CMI1430)). The Clary interests sought clarification as to whether the rest of the Collision Convention 1910 applied, in particular art 6, which abolishes any legal presumption of fault. Otal Investments Ltd (Otal) opposed the motion and was joined by the other cargo claimants.

Held: Motion granted.

Generally, United States courts will apply the Collision Convention 1910 when a collision occurs in international waters between vessels that fly flags of signatory States. Although the United States is not a signatory to the Collision Convention 1910, the Court may apply it. There is no dispute that all three vessels in this matter flew flags of signatories to the Collision Convention 1910, so the Convention should apply in its entirety. The only issue here is whether art 6 of the Collision Convention 1910 precludes application of the Pennsylvania rule.

Article 6 of the Collision Convention 1910 states that '[t]here shall be no legal presumptions of fault in regard to liability for collision'. The Pennsylvania rule states:

The liability for damages is upon the ship or ships whose fault caused the injury. But when ... a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. (The Pennsylvania 86 US 125, 136 (1874)).

Pursuant to the Pennsylvania rule, where a party was in violation of a statutory rule intended to prevent collisions, a presumption arises that the violation was a cause of the casualty. The burden then rests upon the party that violated the statute to prove that its fault (meaning statutory violation) could not have been a cause of the casualty. This imposes an extraordinarily strong burden on the party alleged to have violated the regulations. Here, Otal claims that the Clary violated the International Regulations for Preventing Collisions at Sea (COLREGs). If the Pennsylvania rule applies, the Clary would have the burden of proving that its alleged statutory violations could not have caused or contributed to the collision in order to be excused from liability.

A Ninth Circuit decision has held that art 6 of the Collision Convention 1910 is not consistent with the Pennsylvania rule. In Ishizaki Kisen Co Ltd v United States 510 F 2d 875 (9th Cir 1975) the Court found that the Pennsylvania rule is a substantive and not a procedural rule of the forum because it is a rule designed to affect the decision of the issue rather than to simply 'regulate the conduct of the trial'.

The Clary interests contend that the Pennsylvania rule creates a presumption of fault and is therefore impermissible, because art 6 of the Collision Convention 1910 abolishes presumptions of fault. Otal and the cargo claimants argue that the Pennsylvania rule does not create a presumption of fault, but rather a presumption of causation, and as such does not contradict art 6 of the Collision Convention 1910. In fact, the cases establish a presumption of causation, which comes into play when fault has been recognised. 'Fault' in the Collision Convention 1910 has been interpreted to mean 'causative fault'. The English courts in apportioning damages in this type of case, combine degrees of fault and degrees of causation.

Article 6 is not consistent with the use of the Pennsylvania rule. As such, the Pennsylvania rule will not apply to this dispute and the Court will rely only on the Collision Convention 1910 with respect to apportioning fault between the vessels.

[For subsequent proceedings, see CMI351, CMI350.]