Owners of the ship Arietta S Livanos v Owners of the ship Anneliese, The Anneliese [1970] 2 All ER 29


Admiralty law - maritime law - collision at sea - damages - causation - joint fault - apportionment of liability (one and indivisible loss) - effect of not being able to say whether one party more at fault than the other - construction of Maritime Conventions Act 1911, s 1(1) - whether judge correct in his assessment of relative fault - commentary considering whether same principles apply to apportionment of damage (global/cummulative loss situation)

The Facts

The 2 vessels were involved in a collision at sea. The trial judge concluded that "both were guilty of negligence. But in the end he came to the conclusion that he could not distinguish sufficiently between the many faults committed on both sides ..... to make it possible for him to apportion blame" and apportioned liability equally applying s1(1) of the Maritime Conventions Act 1911. S1(1) provides that:

‘Where, by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault: Provided that— (a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally … ’

Appeal on quantum

The owners of the Anneliese appealed against the judge’s assessment resulting in a finding of 2/3 to 1/3 liability. Karminsky LJ said (30-31) that:

"Matters of this kind cannot be determined by any mathematical formula. The causes of collision have to be analysed as I have attempted to do, applying the findings of the judge and my own conclusions where they differ from his. I now find myself in a position to apportion in this case, and for myself I have come to the conclusion that the Arietta was two-thirds to blame and the Anneliese one-third to blame, and I would allow this appeal on that allocation of blame."

NB figures in brackets are a reference to paragraph numbers in The Law of Damages
  1. S1(1) of the Act provides a common sense solution to the problem as to how to apportion liability, alternatively how to apportion loss/damage in a global/cumulative loss situation, when it is not possible to say on the evidence that either party should be more liable than the other.

  2. There are 2 issues of fact to be decided in apportionment cases. The first is whether each party was in part liable for/contributed to the causation of the injury (apportionment of liability) or contributed to the total amount of the loss (apportionment of loss/damage).

  3. The second issue of fact is the extent of liability or of the loss/damage to be attributed to each (assessment/quantum). Having decided as a matter of fact that each party was in part responsible for the injury or loss in question (liability) it would be inconsistent and unjust to decide on the second issue of fact that one party should be 100% liable (see for example the apportionment of damage cases considered in Sheldon v Metro-goldwyn Pictures Corporation, 309 U.S. 390 (1940)) or that the claimant had failed to discharge the burden of proof and should recover nominal damages (illustrated by Government of Ceylon v Chandris [1965] 3 All ER 48 (6.22)) since the burden of proof is discharged/assessment must be made when there is evidence of and a finding of some harm (in this situation, some harm contributed to by both parties): Mustill J in Thompson and others v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; [1984] 1 All ER 881, QBD (6.24-6.26).

Copyright Stewart Dunn except:
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