Both-To-Blame Collision Clause
If the vessel comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship, the owners of the cargo carried hereunder will indemnify the carrier against all loss or liability to the other or non-carrying ship or her owners in so far as such loss or liability represents loss of or damage to or any claim whatsoever of the owners of the said cargo, paid or payable by the other or non-carrying vessel or her owners to the owners of the said goods and set off, recouped or recovered by the other or non-carrying vessel or her owners as part of their claim against the carrying vessel or carrier.
The foregoing provisions shall also apply where the owners, operators, or those in charge of any vessel or vessels or objects other than, or in addition to, the colliding vessels or objects are at fault in respect to a collision or contact.
Both-To-Blame Collision Clause - Commentary
Suitable for
Bills of lading and waybills.
Purpose
The Hague-Visby Rules provide that, if the carrier has exercised due diligence to provide a seaworthy ship, he is not liable for claims resulting from a collision partly or wholly caused by negligent navigation (Article IV Rule 2(a)). It is commonly the case that both vessels are partly to blame for a collision and cargo interests may then present their claims in tort against the non-carrying vessel.
Under US law, claimants could recover their claims in full from the owners of the other vessel, who could then recover one half from the carriers. This circumvented the navigational error defence. It also created the anomaly that cargo interests could not recover if the carrying vessel was wholly to blame.
The Clause is designed to preserve the protection which the carrier has under the Hague-Visby Rules by giving a contractual indemnity against the cargo interests.
Version
The above clause follows the standard wording which is in common use in bills of lading. Charterparties will usually contain a clause requiring that all bills of lading issued must contain the both-to-blame clause and providing an indemnity if not incorporated.
Cover
All members are required to incorporate the Both-To-Blame Collision Clause in their contracts of carriage (Appendix 6.1.2).