Collision Liability Under Kuwaiti Maritime Law

In maritime law, the term 'Ship collision' is given when a physical impact occurs between two ships resulting in an accident which causes damage. The ship collision can occur between a moveable object, such as a ship, and a stable object like a quay or a floating structure like an offshore drilling platform.

When a ship collision occurs the parties are faced with evaluating risks, including loss of life and loss of assets, and consequent damages to the environment.

In Kuwait, liability for ship collision is governed by the Kuwait Maritime Law No. 28 for the year 1980 ('The Maritime Law') and the Kuwait Civil Law No. 67 for the year 1980 ('The Kuwait Civil Law').

Article 227/1 of the Kuwait Civil Law says:

"Every person who by his faulty act has caused harm to another person shall be liable to reparation regardless of whether he was perpetrator or incitor and abettor."

Consequently, there are three main pillars for the application of liability for ship collision at Kuwaiti Law:

An act, Damage, A causal link between the act and the damage. If there is an incident involving a maritime collision in Kuwait, these three pillars must be present to oblige the defendant to compensate the aggrieved party. Furthermore, the person claiming damages has the burden to proof that these three main pillars are present, and that the defendant is liable for damages caused by the ship collision.

WHAT IS A COLLISION?

Article 223 of the Maritime Law defines a collision:

1 - Where a collision occurs between mercantile ships or between mercantile ships and inland navigation boats the compensation accruing in respect of the damage caused to ships, items and persons on board the ship shall be settled in accordance with the provisions of this Chapter, regardless of the waters where the collision takes place.

(2) The foregoing provisions shall also, where no material collision happens, apply to compensating the damage caused by one ship to another, to items or persons on board such ship, if such damages resulted from the movement of the waves because the ship was manoeuvring or failed to manoeuvre or because of failure to observe the laws or regulations.

In short, a'maritime collision' is defined under Kuwaiti Maritime Law as the occurrence of a physical impact between two floating establishments (whether this impact was material or not).The rules of collision apply when calculating the damages caused by one vessel to another.

It has been established by case law that the rules of collision are excluded in all cases where the vessel collides with a fixed object such as a pier. It is assumed that the collision takes place between two floating objects and at least one of them will be a vessel regardless of its size, and it does not matter whether the vessel was in motion or anchored.

Articles 224, 225, 227 and 228 of the Maritime Law assist in determining the liability arising from a collision:

Article 224: Where the collision is a result of a force majeure, or where there is doubt as to its cause, each ship shall bear the damages she sustained; this provision applies where the ships or one of them were at...