COLLISION IN MARITIME LAW
(A Comprehensive Study on the Law of Ship Collisions)
1. Introduction
With the development of maritime transportation, ship collisions at sea (“collisions”) have come to bear serious consequences both in terms of property and human life. For this reason, the issue of collision has been subjected to special regulations within maritime law systems, and efforts have been made to achieve uniformity at the international level.
Under Turkish law, collision is regulated between Articles 1278 and 1296 of the Turkish Commercial Code No. 6102 (TCC). In addition, the 1910 Brussels Collision Convention, to which Türkiye is a party, constitutes a fundamental international source in this field.
2. The Concept of Collision and Its Legal Nature
According to Article 1278 TCC, “collision” is the damage arising from the actual contact between two or more ships at sea. There are three fundamental elements of the concept of collision:
- The presence of two or more ships,
- A physical collision between these ships,
- The occurrence of damage as a result of this collision.
If these three elements do not coexist, one cannot speak of “collision” in the technical legal sense; instead, the incident will be categorized as another type of maritime casualty (such as navigational error, allision, or damage incurred while avoiding a collision).
From the perspective of legal nature, collision gives rise to liability based on tort. However, a special liability regime has been established for collision under the TCC; therefore, the general provisions of tort law in the Turkish Code of Obligations (TCO, Art. 49 et seq.) are applied only where the TCC provisions are inadequate.
3. Types of Collision
The TCC classifies collisions into three groups on the basis of fault:
a. Collisions with Fault (Art. 1280 TCC)
If a ship is at fault in causing the collision, it is liable for the damage. Fault may arise from:
- The master,
- The crew, or
- The pilot.
In such a case, the shipowner bears objective liability for the wrongful acts, even if not personally involved in the navigational conduct.
b. Collisions Without Fault (Fortuitous Collisions) (Art. 1281 TCC)
In collisions occurring without the fault of any ship, each ship bears its own loss. In these cases, no liability for compensation arises vis-à-vis the other party.
c. Collisions Where Fault Cannot Be Determined (Art. 1282 TCC)
If it is not possible to determine to which ship the fault is attributable, and the cause of the collision cannot be clearly established, the damage is shared equally between the parties. This provision is based on equity and is designed to facilitate the burden of proof in practice.
4. Basis of Liability
In the TCC system, liability arising from collision is based on fault-based liability. The degree and gravity of fault directly affect the amount of compensation (Art. 1283 TCC).
In principle, the burden of proving fault lies with the injured party. However, as a factual presumption, when a collision occurs it is generally accepted that the damage results from one party’s:
- Faulty manoeuvre,
- Excessive speed,
- Wrong course, or
- Lack of due care in navigation.
Evidence is evaluated within this framework.
5. Scope of Liability
Compensation recoverable due to collision is, in principle, limited to pecuniary (material) damage. This includes:
- Damage to the ship, cargo, passengers and luggage,
- Pecuniary loss arising in cases of death or personal injury (Art. 1289 TCC),
- Costs of salvage or wreck removal,
- Economic losses caused by delay.
Although non-pecuniary (moral) damages are not expressly regulated in the collision provisions of the TCC, they may be claimed under Article 56 TCO in the event of death or bodily injury.
6. Joint and Several Liability in Collisions
Where more than one ship is at fault, joint and several liability applies vis-à-vis third parties who have suffered damage (Art. 1286 TCC).
In such a case:
- The injured party may claim the full amount of the damage from any one of the ships at fault.
- The party that has paid the full amount is then entitled to recourse against the other at-fault parties in proportion to their degrees of fault.
Thus, while the external relationship focuses on the protection of the injured party, the internal relationship between the tortfeasors is adjusted according to their fault.
7. Apportionment of Fault and Assessment of Damages
When determining the apportionment of fault, the main factors taken into account include:
- Compliance with rules on speed and course,
- Compliance with international rules on navigation and collision avoidance (especially COLREG-72),
- Whether the master complied with the pilot’s instructions,
- Logbook entries, radar and AIS data, and VDR (Voyage Data Recorder) records,
- Weather conditions, visibility and traffic density at the time of collision.
In the case law of the Court of Cassation (Yargıtay), the apportionment of fault is often made on the basis of the International Maritime Organization (IMO) regulations and the International Regulations for Preventing Collisions at Sea (COLREG-72). Technical expert reports play a decisive role, and courts typically rely on reports prepared by experts specialized in maritime matters.
8. Avoidance of Collision and Indirect Collision
Article 1287 TCC specifically regulates situations where no physical collision has actually occurred, but damage arises during a manoeuvre undertaken to avoid a collision.
If a ship, in order to avoid another ship, is compelled to take a manoeuvre and as a result:
- Strikes the shore, a quay, a pier, a lighthouse or another fixed object, or
- Sustains damage to itself or to property belonging to third parties,
and if this situation is caused by the faulty conduct of the other ship, then the latter is liable to compensate the damage.
This provision demonstrates that liability may arise not only from an actual physical collision but also from “indirect collisions” (damage in collision avoidance manoeuvres).
9. Limitation Period
Claims for compensation arising from collision are subject to a two-year limitation period pursuant to Article 1293 TCC.
- The period starts to run from the date on which the collision occurred.
- Negotiations for settlement between the parties, resort to insurance procedures or actions filed before foreign courts may, depending on the circumstances, suspend or interrupt the limitation period; this must be examined case by case.
The limitation period is frequently raised as a preliminary objection in collision disputes and is also taken into consideration by the courts ex officio. Hence, it is of great importance for injured parties to assert their rights within the prescribed period.
10. Jurisdiction and Applicable Law
In collision disputes, the competent court is, as a rule, the specialized maritime court (or, where such a court does not exist, the Commercial Court of First Instance).
Jurisdiction may lie with:
- The court of the port where the defendant ship is registered,
- The court of the place where the collision occurred,
- In some cases, the court of the injured party’s domicile.
Jurisdiction may also be determined by jurisdiction agreements or arbitration clauses concluded between the parties.
In international collisions, with regard to the applicable law, the following may come into play:
- The law of the place where the collision occurred,
- The law of the flag of the ship,
- The law chosen by the parties in their contracts.
The 1910 Brussels Collision Convention, to which Türkiye is a party, is an important reference regarding applicable law and liability rules.
11. Collision Liability in the Light of Court of Cassation (Yargıtay) Decisions
Court of Cassation, 11th Civil Chamber, E. 2018/2456, K. 2019/3127, 12.03.2019
In this case, two ships manoeuvring within a port area collided. According to the expert report, the master of the ship causing the collision failed to alter course and reduce speed in a timely manner, which was deemed primary fault.
The Court of Cassation, holding that fault had been proved under Article 1280 TCC, upheld the judgment ordering the defendant shipowner to pay compensation, and emphasized the following principle:
“The fault of the crew is attributable to the shipowner; the owner reserves the right of recourse against the marine insurer.”
Court of Cassation, 11th Civil Chamber, E. 2016/7719, K. 2017/3045, 04.05.2017
In this case, a ship performing a manoeuvre to avoid a collision struck the shore and sustained damage. The court of first instance found that the other ship had violated the rules of navigation and thereby made the avoidance manoeuvre inevitable, and thus attributed fault to that ship.
The Court of Cassation held that even in the absence of an actual collision, the provisions on “avoidance of collision” under Article 1287 TCC would apply, and that the damage must be compensated by the ship at fault.
Court of Cassation, 11th Civil Chamber, E. 2015/6251, K. 2016/8341, 06.10.2016
In this case, a collision occurred under restricted visibility conditions where the radar systems of both ships were switched off. The court found both ships equally at fault and ordered that the damage be shared equally.
The Court of Cassation considered that it was not possible to determine the exact degree of fault of each ship, qualified the situation as a “collision where the degree of fault cannot be determined”, and upheld the decision for equal apportionment of the damage.
Court of Cassation, 11th Civil Chamber, E. 2008/11816, K. 2010/1623
Here, the Court of Cassation held that even if the navigational error is attributable to the pilot, this does not release the shipowner from liability. Relying on former Article 1060 of the old TCC (with corresponding provisions in the new Code), the Court emphasized that the shipowner is jointly and severally liable for the acts of the crew.
This precedent is particularly significant in compulsory pilotage areas, such as ports and straits, as it confirms that the shipowner’s liability cannot be shifted to the pilot.
12. Comparison with International Law
The provisions of the Turkish Commercial Code on collision are largely influenced by the 1910 Brussels Collision Convention. The Convention adopts a fault-based system, and the principle that “each ship is liable for damage in proportion to its fault” is at the forefront.
By contrast, in some legal systems (e.g., English law), concepts such as “common danger liability” and broader risk-sharing approaches allow for more flexible allocation of damage arising from collisions.
The particularity of Turkish law lies in the fact that the TCC provisions are interpreted together with the case law of the Court of Cassation, thereby aligning international principles with local maritime practice.
13. Marine Insurance and Collision
In practice, losses arising from collision are generally covered by:
- Hull & Machinery insurance, and
- P&I (Protection & Indemnity) insurance.
The “Running Down Clause (RDC)” included in hull policies explicitly covers liability risk arising from collision. This clause insures, up to a certain proportion, the assured ship’s liability for damage caused to another ship and its cargo as a result of a collision. In many policies, hull insurance covers a certain share of the collision liability (for example, three-fourths), while the remaining part is covered by the P&I insurer.
According to the case law of the Court of Cassation, if the compensation which the shipowner is obliged to pay due to collision falls within the scope of the policy coverage, the insurer is bound to indemnify within the limits set out in the policy. The insurer’s liability is assessed with reference to policy clauses, exclusions and compliance with notification obligations.
14. Conclusion and Evaluation
Maritime law is a highly specialized field that requires specific regulations due to the unique risks inherent in maritime transportation. Collision is one of the most critical and high-risk issues in this area.
The Turkish Commercial Code, in harmony with international conventions, regulates the collision regime in detail. In this framework:
- A fault-based liability system is adopted,
- Where fault cannot be proven, apportionment of damage becomes relevant,
- The acts of all crew members, including the pilot, give rise to liability on the part of the shipowner,
- Failure to manoeuvre in time, switching off radar and navigational aids, excessive speed and wrong course are among the most typical types of fault,
- The Court of Cassation attaches great importance to technical expert reports and to the COLREG-72 rules.
In conclusion, collisions at sea are not merely technical accidents, but incidents that give rise to complex legal responsibilities. It is essential for shipowners, masters, brokers and insurers to act in accordance with the TCC, international maritime norms and up-to-date Court of Cassation precedents in order to ensure both safety of life and property and legal certainty.
References
- Turkish Commercial Code No. 6102, Articles 1278–1296
- 1910 Brussels Collision Convention
- Court of Cassation, 11th Civil Chamber, E. 2018/2456, K. 2019/3127
- Court of Cassation, 11th Civil Chamber, E. 2016/7719, K. 2017/3045
- Court of Cassation, 11th Civil Chamber, E. 2015/6251, K. 2016/8341
- Court of Cassation, 11th Civil Chamber, E. 2008/11816, K. 2010/1623
- IMO, International Regulations for Preventing Collisions at Sea (COLREG-72)
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