Witnesses often quickly disappear, and electronic evidence stored on onboard data recording facilities may quickly become overwritten. Damaged and renewed structure, potentially containing valuable evidence, is often discarded in the race to restore normal operations. Therefore, it is crucial that any relevant action plan and response takes these matters into account.
Obtaining access to vessels and crew to carry out these vital investigations can often be difficult. To increase the chances of successfully obtaining such access, it can be of significant assistance if any relevant contracts incorporate specific rights of access.
In terms of relevant contracts, when considering the ‘ordinary’ collision scenario between two vessels, there will generally be no prior relationship or agreement between the parties. However, in the context of a collision in a port or terminal between a ship and a fixed structure, there will often be a pre-existing agreement in the form of a contract – the terms of which may be expressly set out or, possibly, implied by the surrounding circumstances.
Importantly, any such contract has the potential to alter the position that would normally exist under the Occupiers’ Liability Act or under the law of negligence. Subject to certain rules, such as those created by the Unfair Contract Terms Act 1977, it is open to a party to limit or exclude their liability to the other. This can be one of the most significant factors in determining the ultimate liabilities of the parties involved. A well drafted and properly incorporated limitation of liability clause can mean the difference between mere inconvenience and total financial ruin. As a result, any contingency planning and risk management planning must carefully consider the appropriate use of limitation or exclusion of liability clauses.
