The consequences of a deletion of the nautical fault

Abstract

Summary

When a vessel is involved in an accident like grounding or collision there is often some sort of damage to the ship or even the total loss of the ship. Let us say the ship is damaged and there is a seawater leakage or similar, then it is likely that the cargo will also be damaged. In most cases where the cargo is lost or damaged the claimant will generally present the plausible argument that the carrier would have been able to reduce the damage by having made a different navigational decision. In most courts, the Swedish for example, this would be to dig your own grave. The reason for this is that a navigational error performed by almost anyone on board, except by the carrier himself, would free the carrier from liability according to law. Furthermore a fault in the management of the ship that by mistake damages the cargo can also lead to the freedom of liability for the carrier. These two grounds, available for the carrier’s defence against liability for cargo, are together called the nautical fault.

The purpose of the nautical fault has a long history in shipping industry and is rather created to entail a reasonable allocation of risk than to favour the carriers (even though, yes, there have been some carrier friendly provisions in shipping over the years) as it might seem at a first glance to someone not familiar with maritime law. The way things are going, more and more support is shown for the proposal to delete the nautical fault defence from the regulations of maritime transport. Some nations have already deleted it, but Sweden, among many others, is perhaps yet to come?

With the intention to achieve international uniformity on the law of carriage of goods by sea the ten year work on a new convention is coming towards an end. Notwithstanding the important goal of uniformity the long debated issue of the nautical fault has now resulted in the removal of the exoneration from the draft. As soon as the draft is signed, its ratification will be considered by a majority of states all around the world. For Sweden it is an important question since the nautical fault would then no longer prevail for the carrier’s liability defence after around 80 years of application. Therefore this thesis is summarizing and discussing the consequences that the deletion of the nautical fault would have on shipping industry, hopefully for the reader to get an idea and maybe make up hers/his own opinion.