Collision

Governing Law
Collisions between vessels and other objects, and liability for damages to vessels, people and goods on board are governed by the following laws, regulations and international conventions:

  1. Indonesian Commercial Code (Kitab Undang-undang Hukum Dagang) (“IComC”);
  2. Law No. 17 of 2008 concerning Shipping (Undang Undang No. 17 Tahun 2008 tentang Pelayaran);
  3. Government Regulation No. 9 of 2019 concerning Vessel Accident Investigations (Peraturan Pemerintah No. 9 Tahun 2019 tentang Pemeriksaan Kecelakaan Kapal);
  4. IMO Resolution MSC.255 (84) adopted on 16 May 2008 concerning the Adoption of the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code); and
  5. Ministry of Transportation Regulation No. PM 6 of 2020 concerning Vessel Accident Investigation Procedures (Peraturan Menteri Perhubungan No. PM 6 Tahun 2020 tentang Tata Cara Pemeriksaan Kecelakaan Kapal).

Vessel Operator, Defined
A Vessel Operator (Pengusaha) is a person or entity who utilizes a vessel for sailing at sea or on inland waterways and either steers the vessel itself or orders another person employed by it to skipper the vessel. (Art. 320 of the IComC).

Liability Allocations
Indonesian maritime collision liability follows comparative fault principles allowing a plaintiff to recover damages from a defendant after deducting the percentage of fault attributable to the plaintiff.

No Fault Events
If the collision was caused by an unintentional incident, or due to an event that was beyond the control of the vessels involved, or if there is doubt concerning the cause of the collision, then each party bears its own losses. (Art. 535 of the IComC).

One Party at Fault
If the collision was caused by the fault of one of the colliding vessels, then the vessel operator of the vessel at fault bears all of the losses. (Art. 536 of the IComC).

This rule is illustrated in the holdings of the Supreme Court in Allied Assets, Co. Ltd. v. PT Maskapai Pelayara Pulau Laut, Decision No. 786K/Pdt/2017 (“Allied v. Maskapai“). Allied Assets, Co. Ltd was the owner of the vessel “KM Anu Bhum”. PT Maskapai Pelayara Pulau Laut was the owner of the vessel “KM Pul Perkasa”. (KM in the Indonesian language stands for “Kapal Mesin” which is translated as “Motor Vessel”).

The Shipping Tribunal (Mahkamah Pelayaran) (see infra for a discussion concerning the Shipping Tribunal (Mahkamah Pelayaran)) held that

Based on examination by the Shipping Tribunal (Mahkamah Pelayaran) (see infra for a discussion concerning the Shipping Tribunal (Mahkamah Pelayaran)), the collision occurred when the Defendant’s vessel “KM Pul Perkasa” was being towed from Prajen-Palembang anchorage to Palembang port by tug boat “TB Tanjung Buyut 2-212” with the assistance of tug boat “TB Tanjung Buyut 1-206”. “KM Pul Perkasa” had to be towed because her engines had failed.

Later during the tow, tug boat “TB Tanjung Buyut 2-212” moved and positioned itself on the port side of “KM Pul Perkasa” while tug boat “TB Tanjung Buyut 1-206” remained in an assisting position.

During the towing process, strong currents pushed “MV Pul Perkasa” to its port side and tug boat “TB Tanjung Buyut 2-212” was unable to control the KM Pul Perkasa’s movements. As a result, KM Pul Perkasa collided with KM Anu Bhum, which was at anchor.

The Shipping Tribunal declared that the collision was proximately caused by the lack of maintenance of KM Pul Perkasa engine and the lack of planning and coordination in the towing process.

Pursuant to the Shipping Tribunal’s decision, the Plaintiff submitted a claim to the North Jakarta District Court and requested a declaration by the North Jakarta District Court that the Defendant is liable for the damages caused by the collision based on Article 536 of the IComC. In addition, the Plaintiff also requested that the North Jakarta District Court order the Defendant to pay for all the damages suffered by the Plaintiff in the form of the costs to repair KM Anu Bhum.

Following the claim, the North Jakarta District Court decided that the Defendant had been proven to have committed an action against the law, and ordered the Defendant to pay for all of the damages. Despite the Defendant’s attempt to appeal the decision, the Jakarta High Court (the court of appeal) upheld the North Jakarta District Court’s decision.

On the cassation level, the Supreme Court rejected the Defendant’s cassation and upheld the antecedent decisions stating that the implementation of Article 536 of the IComC was correct in the matter concerning the collision between KM Pul Perkasa and KM Anu Bhum.

Comparative Fault
If the collision was caused by the fault of both parties, then liability is apportioned between the parties at fault on a percentage basis. (Art. 537 of the IComC). Allocation of fault is determined by the panel of judges adjudicating the dispute. (Art. 537 of the IComC). If the allocation of fault cannot be determined, fault will be allocated on an equal basis. (Art. 537 of the IComC).

Death or Personal Injury
If a collision results in death or injury to a person in an event where the collision was caused by the fault of both parties, then both vessel operators are liable to third parties for all losses arising from the event. (Art. 537 of the IComC).

Subrogation
In an event where the collision was caused by the fault of both parties, and one of the parties provides compensation in excess of its share of comparative fault, the party paying more than its share obtains rights of subrogation and indemnity from the party paying less than its share. (Art. 537 of the IComC).

Towing
If a vessel collides with another vessel while being towed due to the fault of the towing vessel, the vessel operators of the towing vessel and the vessel being towed are jointly and severally liable for losses arising from the collision. (Art. 538 of the IComC).

This rule is illustrated in the holdings of the District Court of Samarinda in Eric Salim Liem, as the Director of PT Ersihan Satya Pratama (Plaintiff) v. Antonius Acing (Defendant I), PT Kelian Bahari Shipping (Defendant II), PT Pancaran Samodra Transport (Defendant III), and PT Trubaindo Coal Mining (Defendant IV), Decision No. 77/Pdt.G/2013/PN.Smda (“Ersihan v. Antonios Acing“).

In this case, the Plaintiff was the owner of a barge “BG Pesut 2402” while Defendant I was the Captain of tug boat “TB Raymond I” and barge “BG PST 911”, which were owned by Defendant II.

During the time of the collision, the Plaintiff’s vessel was moored at a crane barge jetty. The vessel was suddenly hit by barge “BG PST 911” that was being towed by tug boat “TB Raymond I” under the command of Defendant I.
The accident caused damage to the Plaintiff’s vessel, barge “BG Pesut 2402”, resulting in the Plaintiff spending more than one hundred million Rupiah to repair the vessel. The Plaintiff requested the District Court of Samarinda to declare Defendant I liable for damages based on Article 1367 of the Indonesian Civil Code which states that an individual is liable not only for damages caused by his/her actions, but also by individuals who are under his/her responsibility or by goods under his/her possession and control.

The Plaintiff also claimed that based on Article 536 of the IComC, Defendant II as the owner of barge “BG PST 911” is liable for the damages suffered by the Plaintiff. Article 536 of the IComC states that in the event that a collision is caused by the fault of one of the colliding vessels, then the vessel operator of the vessel at fault bears liability for all of the losses.

The District Court of Samarina held that Defendant I had been proven to have committed an action against the law and ordered Defendant II to pay all of the damages suffered by the Plaintiff.

Pilotage
If a vessel collides with another vessel due to the fault of a pilot who is required by law to navigate, the pilot and the vessel operator of the vessel being piloted are jointly and severally liable for all losses arising from the collision. (Art. 539 of the IComC).

If a vessel, immediately after experiencing a collision, sails to a port of refuge and becomes a total loss prior to arriving at its destination, then unless proven otherwise, the loss is deemed to be a result of the collision. (Art. 540 of the IComC).

Collision with Other Things
The rules set out below apply to collisions between vessels and other movable or stationary objects.
If the object in question is sufficiently lit and in a reasonable location, the vessel operator of the vessel colliding with the object is liable for the losses suffered unless it is proven that the collision was not the fault of the vessel operator. (Art. 544a of the IComC).

Ship Arrest
Vessels are subject to arrest as security for civil maritime claims arising out of collisions based on a court order. (Arts. 222 and 223(1) and the Elucidation to Art. 223(1) of Law No. 17 of 2008 concerning Shipping). However, arrest orders are very difficult to obtain in civil matters because the Ministry of Transportation has not yet promulgated implementing regulations governing arrest procedures and thus courts are reticent to dictate procedures for arrests. Arrests are more easily conducted by harbor masters for port state control violations that may arise in the context of a collision, or by the police, coast guard or navy for purposes of preservation of evidence or for ensuring safety and security.

Limitations of Liability
Article 541 of the IComC provides a limitation of liability of Rp50 (fifty Rupiah) (about a tenth of a US cent) per net cubic ton for a Vessel Operator for damages arising out of a collision; rendering liability de minimus. The IComC, and thus this provision, was promulgated in 1847 and is thus considered to be outdated by Indonesian courts. No liability limitation provisions are currently applied.

Master Liability and Reporting
The master of a vessel involved in a collision is personally liable for the damages arising from the collision unless the master is able to prove that the collision was not his/her fault. (Art. 249 of Law No. 17 of 2008 concerning Shipping).
The master of a vessel with knowledge of a collision involving his/her own vessel or other vessels is required to report the event to the harbor master of the nearest port if the event occurred in the territorial waters of Indonesia or, if the event occurred outside of Indonesia’s territorial waters, to the official of the foreign government with jurisdiction over the place the event occurred. (Art. 248 of Law No. 17 of 2008 concerning Shipping).

Preliminary Examination of Collisions
A harbor master or other government official appointed by the Ministry of Transportation is obliged to conduct an investigation into every vessel accident to obtain preliminary information and/or evidence concerning the event. (Art. 220(1) and 221(1) and (2) of Law No. 17 of 2008 concerning Shipping). If the event occurs outside of Indonesian waters, a harbor master or other government official will be appointed after the relevant Indonesian embassy or consulate receives a vessel accident report from the authorized official of the local foreign government. (Art. 221(2) of Law No. 17 of 2008 concerning Shipping). The results of the preliminary investigation are then sent to the Shipping Tribunal (Mahkamah Pelayaran) for further examination. (Art. 221(3) of Law No. 17 of 2008 concerning Shipping).

Shipping Tribunal – Mahkamah Pelayaran
After the preliminary examination of a collision by the harbor master (see supra), further examination of a collision is then conducted by the Shipping Tribunal (Mahkamah Pelayaran) comprised of a panel of experts constituted by and responsible to the Ministry of Law and Human Rights. (Articles 1(58), 250 and 251 of Law No. 17 of 2008 concerning Shipping). Investigations focus on the vessel collision, the adherence by the master to the relevant code of professional ethics, the competency of the master and/or the responsible vessel officers. (Art. 221(2) of Law No. 17 of 2008 concerning Shipping).

The authority of the Shipping Tribunal (Mahkamah Pelayaran) is limited to investigations of collisions between commercial vessels, between commercial vessels and State vessels, and between commercial vessels and warships. (Art. 252 of Law No. 17 of 2008 concerning Shipping).

The Shipping Tribunal (Mahkamah Pelayaran) is charged with the duty of assessing fault or negligence in the application of professional seafarer standards of the master and/or vessel officers and providing recommendations to the Minister of Transportation concerning the imposition of administrative sanctions. (Art. 253(1) of Law No. 17 of 2008 concerning Shipping).

The vessel owner or operator is required to cause the master and/or crew to appear before the Shipping Tribunal (Mahkamah Pelayaran), failing which the vessel owner or operator may be subject to sanctions taking the form of warnings, or suspension or revocation of licenses. (Art. 254(2) and (3) of Law No. 17 of 2008 concerning Shipping).
The Shipping Tribunal (Mahkamah Pelayaran) is regulated in detail by Government Regulation No. 9 of 2019 concerning Vessel Accident Investigations.

National Transportation Safety Comittee Investigations
Investigations are also conducted by the National Transportation Safety Committee to find facts to be used for the purpose of the occurrence of similar accidents. (Art. 256(1) of Law No. 17 of 2008 concerning Shipping). The National Transportation Safety Committee is supposed to conduct investigations into every vessel collision. (Art. 256(2) of Law No. 17 of 2008 concerning Shipping). However, the National Transportation Safety Committee is not supposed to determine fault or negligence in the event. (Art. 256(2) and (3) of Law No. 17 of 2008 concerning Shipping).
Administrative sanctions recommendations may take the form of warnings, revocations of certificates of competency or (Art. 253(2) of Law No. 17 of 2008 concerning Shipping).

Shipping Information System
The central and regional governments are required to organize and operate a Shipping Information System to compile, process, analyze, store, study and disseminate information to support shipping and the formulation of related policies and increase services to the public. (Art. 269 of Law No. 17 of 2008 concerning Shipping). The Shipping Information System is composed of several components, one being the safety and security information system, which must include information concerning vessel collisions. (Art. 270(c)(7) of Law No. 17 of 2008 concerning Shipping).

Time Bars and Stays – Statute of Limitations
A plaintiff must initiate legal proceedings seeking compensation for damages arising out of a collision within two years from the date the collision occurred or the claim is lost and any suit filed is subject to dismissal. (Art.742 of the IComC). Provided however that the statute of limitations will be stayed if the plaintiff is able to prove that it has delivered a warning letter signed by an authorized person acting for and in the name of the plaintiff describing the claim with sufficient specificity; or the plaintiff is able to prove that it has commenced other forms of legal proceedings. (Art. 1979 of the ICC).

Jurisdiction
Lawsuits may be filed in the local Indonesian District Court with jurisdictional territory covering any of the following places: the residence of the defendant, or if there are several defendants, the residence of any one of them; the place where the collision occurred; or the place where the defendant’s ship is registered. (Article 543 of the IComC).

Criminal Provisions
Law No. 17 of 2008 concerning Shipping criminalizes a wide range of acts and omissions relating to shipping and port activities with maximum criminal penalties up to 20 years imprisonment and/or fines of up to Rp2,500,000,000 for some conduct. (See generally, Chapter XIX – Criminal Provisions of Law No. 17 of 2008 concerning Shipping).

 

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