The Response of Japanese Maritime Law Association to the Questionnaireof CMI IWG on the Collision Conventions
May 31, 2023
Background Information
Japan ratified the Collision Convention 1910 in 1913 but is not a member of
the Collison/Civil Jurisdiction Convention 1952. The Japanese Commercial Code1899 is to be applied to the cases where the Collision Convention 1910 does not cover.
A typical example is the case where all interested parties are Japanese (Article 12(2)of the Collision Convention 1910).
1.

Definitions

1.1

VesselThe 1910 Collision Convention applies to the collision of vessels (Art. 1) but does not featurea definition of a vessel.
Should the revised Convention define “vessel”?
It would be preferable for the revised Convention to define vessels to clarify its
scope of application.
If so, should the definition include all floating structures?
At present, JMLA does not have any concrete and consolidated idea regarding
the meaning of vessels covered by the revised Convention.

Information on Japanese Law

Japanese law does not define vessels but, generally, it is understood as afloating structure on water irrespective of self-propelled ability. Provisions of theCommercial Code limit its application to the ships used for the sea voyage 1 (Art. 684
of the Commercial Code and Art. 35 of Ships Act). In addition, the boats steered
solely or mainly using oars or paddles are excluded from its scope. The exclusion
has been justified because such boats are typically small, and there is no need to

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The provisions on carriage of goods are applied to fluvial vessels etc. (Article 747).
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apply special rules for sea-going ships.
It is unclear whether just floating structures such as barges and buildings onwater are also excluded from the application of the collision rules. The problem
arises when a sea-going ship collides with a barge solely floating without a tugboat.
This case might not be construed as “collision of vessels” under Japanese law.
1.2

Ocean/Inland Navigation Vessels
The 1910 Convention applies to collisions between sea-going vessels and between sea- goingvessels and vessels of inland navigation (Art. 1), and thus not to collisions between vessels of
inland navigation.
Should the revised Convention apply to any collision between vessels?
It depends on the substance of the revised Convention.

Information on Japanese Law
The Japanese Commercial Code does not cover the collisions between vessels
of inland navigation since there is no reason to apply special liability rules such as
the short period of time bar. 2 However, the rule may arguably be based on
situation unique to Japan is an island country and contains no international rivers
and canal ways. In addition, vessels in inland navigation are presumed as
relatively small and having a short number of cargos, if any.

1.3

Collision
The 1910 Convention applies to collisions between vessels but does not say what a collision
is.
Should the revised Convention define “collision”?

Yes. It is preferable to define collision to clarify its scope of application.

2 According to the general principle, the period is three (for property damage) or five years (forpersonal damage) after the victim knows the damage and the tortfeasor, or twenty years fromthe time when the accident occurs (Article 724 and 724-2 of the Civil Code).
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If so, should it include cases where damage is caused to one vessel by the manoeuvre ofanother even though there was no physical contact between the two?
Yes. The current convention already implies collisions without physical contact(Article 13). It is preferable that the revised Convention expressly defines it.

Information on Japanese Law

Japanese Commercial Code explicitly covers the above situation (Article 790).

Article 790 Quasi-collision
The preceding two Articles shall apply mutatis mutandis to an accident where aship gets extremely close to another ship due to an act in navigation or
management of the ship or due to the breach of a regulation regarding ships, andthe other ship, or persons or goods in the other ship suffer damage.
Should it include vessels engaged in a towing situation?

Yes.

Should it include collisions where both vessels are owned by the same beneficial owner?
Yes. If the vessels caused damage against third parties on board (crew,
passengers, or cargo owners), the liability claims should be covered by theConvention irrespective of the identity of owners of each vessel.

2.

Scope of Application

2.1

Reference to the Flag
The 1910 Convention applies if all vessels involved fly the flag of Contracting States (Art. 12),in whatever waters the collision occurs (Art. 1).
Should the scope of application of the revised Convention be expanded (i) to the effectthat the revised Convention applies, irrespective of the involved vessels’ flags, if thecollision occurred within a Contracting State’s internal waters, coastal sea and/or
exclusive economic zone and (ii) to the effect that the revised Convention applies to any
collision in any other waters if one or more of the colliding vessels flies the flag of aContracting State?

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As is suggested in (i), the Convention may be revised as defining its scope of
application geographically without a reference to vessel’s flag if the collisionoccurred within a Contracting State’s territory. However, a careful discussion isrequired regarding whether it should be extended to the cases where accidents
occurred in the exclusive economic zone of a Contracting State.
Most of the members of JMLA consider that the suggestion (ii) is not
acceptable since so revised Convention would lead to be applied to vessels flying
flags of non-Contracting States and involve those who have not predicted theapplication of the Convention.
2.2

REIO-Clause
Should the revised Convention include a REIO-Clause (Regional Economic Integration
Organisation) which would in particular allow the EU to become a contracting party?
This may in particular be relevant if the revised Convention features provisions on
international private law (point 5 below), jurisdiction and recognition/enforcement(points 6 and 7 below).
JMLA does not oppose to the inclusion of REIO Clause if it could increase
the number of ratifications.

3.

Liability

3.1

Fault-Based Liability
The principal underlying decision of the 1910 Convention is that the vessels’ liability arisingfrom a collision is fault-based (Art. 2(1), Art. 3 and Art. 4(1)) and that there is no strict liability.
Should fault-based liability be maintained? If not, can you provide your reasoning forabandoning fault-based liability?

Yes. The fault-based liability should be maintained. It is difficult to findcircumstances which require or justify the introduction of strict liability. The
same applies even to the collision liability arising from autonomous vessels (see,Question 8).

3.2

Fault of the Vessel

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The 1910 Convention’s liability concept is based on the fault of the vessel. However, theConvention does not identify the persons who must act negligently, but merely refers to “thevessel” being in fault.
Should this concept be maintained in the revised Convention, or should the revised
Convention identify who needs to be at fault?

It is difficult to identify a specific person whose fault or negligent act is
attributable to the vessel. It is the matter of fact accessed on case-by-case basis
and the matter of applicable law of torts.

3.3

Title to Sue
The 1910 Convention is silent as to who is entitled to bring an action against the liable “vessel”.
Should the revised Convention identify which parties (registered shipowners, bareboat
charterers, etc.) may bring suit against the liable vessel?

Yes. It is unreasonable to reject any tort claims from the victims other thanthe listed parties. The issue of title to sue should be left to applicable law.

3.4

Crew, Pilot etc. Channelling of Negligence
The 1910 Convention does not preclude entities other than the shipowners being liable forcollision damage.
Should this concept to be maintained in the revised Convention or should liability bechannelled solely to the owner of the liable vessel?

There are no reasonable grounds to introduce the channeling of liability.

3.5

Pro Rata versus Joint Liability
The 1910 Convention liability system provides for joint liability of the involved vessels in
relation to third parties’ personal injury claims (Art. 4 (3)). A vessel that settles the fullamount of the claim may recover from the other vessel in proportion to its share of liability(Art. 4 (3)).

5The 1910 Convention does not apply to damage caused to the property of third parties not onboard one of the vessels involved. For example, a collision leading to damage to a bridge. It is
to be presumed that national law would apply to any claim for such damage.
However, in respect of claims to property damage on board one of the colliding vessels, the1910 Convention provides for a pro-rata liability in proportion to the degree of fault of thevessels involved (Art. 4 (1) and (2)). This becomes relevant in cases where two or more than
two vessels are involved in the collision and one vessel seeks to recover from one or more of
the other vessels, or where there is damage to property, in particular cargo, and the property
owner claims from the two (or more) vessels involved.
Should the joint liability for personal injury claims of all involved vessels found to be at
fault be explicitly extended to liability for third-party property damage in the revised
convention? Even if not on board one of the colliding vessels? If so, what justifies yourreasoning?

The joint liability should be introduced with respect to the liability for third
party property damage. This is in accordance with the general principle of current
tort law.

Information on Japanese Law
Japanese law already applies the joint liability irrespective of whether thethird party was on board or not. The result is achieved through the application ofgeneral tort law (Article 719 (1) of Civil Code (Liability of Joint Tortfeasors)).

3.6

Defects in the Vessel
Under the 1910 Convention, the vessel owner will not be liable if the collision was caused bysome defect in the vessel which the owner, by applying due diligence in all respects, wasunable to detect.
Should there be an exception to the effect that the vessel should be strictly liable for such
defects irrespective of fault?
If so, should the revised Convention then define “defects”, for which no fault is required
to lead to liability?

It is not necessary to introduce a special liability caused by the defect of6

vessels. Courts would usually find shipowner's fault if the vessel contains a defectwhich has caused the collision and impose liability on the shipowner unless it
excises due diligence.

3.7

Legal Presumptions
Art. 6 (2) of the 1910 Convention provides that legal presumptions relating to fault are notapplicable when it comes to determining liability under the Convention.
Should the revised Convention expressly adopt some internationally recognised
presumptions, and if so, what type of presumption?

It is not necessary to introduce any legal presumption.

3.8

Recoverable Damages
The 1910 Convention does not address what damages are recoverable. The Lisbon Rules 1987,
issued by CMI, (https://comitemaritime.org/work/collision/), include detailed principles as to
the recoverable damages and their assessment in typical collision cases.
Should the revised Convention define recoverable damages?
If so, should the Lisbon Rules 1987 on recoverable damages in collision cases be madepart of the revised Convention?
It is preferable to refer to what damages are recoverable. However, it would
be excessive to include the whole particulars listed by the Lisbon Rules which are
too specific and detailed for the text of the Convention.

4.

Mandatory Insurance
A number of international liability conventions, including oil pollution conventions, providethat the vessel owner must maintain insurance which covers claims under the respective
conventions. These conventions often have a public policy aim and may not be an appropriate
model for the 1910 Collision Convention. In Europe, EU-Directive 2009/20 provides that thevessel owner must maintain insurance that covers claims up to the limitation amounts of the1996 LLMC relevant for the vessel. The Directive does not provide for direct action against
the vessel’s liability insurers.
Should the revised Convention provide for mandatory insurance? If so, what justifies
this change in your view?
7No. It is excessive for the Convention to impose the duty to procure
insurance to cover damages inflicted by third parties on board. These damages
are already expected to be insured through other conventions like the Athens
Convention and generally insured by P&I insurances, general cargo insurances,and travel insurances.
A mandatory insurance required by the EU-Directive 2009/20 is to secure
the compensation for the damages to be broadly limited through the applicationof LLMC irrespective of whether the claimant was on board or not. The same kindof mandatory insurance system, if reasonable and necessary, should be
introduced through the revision of LLMC, not through the Collision Convention.

4.1

Direct Actions and Defences
If mandatory collision insurance is to be introduced, should the revised Convention
provide for direct actions by the damaged parties against the liability insurers of the liable
vessel? If so, what justifies this change in your view?
If so, how would this be achieved given the usual sharing of liability cover between thevessel’s hull and machinery and P&I insurers?
If it were to be achieved, should the insurers benefit from any defence they might have
had vis-à-vis their insured related to their policy? Would this include the bankruptcy or
winding up of the vessel owner and pay-to-be-paid clauses?

As explained above (4), JMLA does not support the introduction of
mandatory insurance into the Collision Convention.

5.

International Private Law
The 1910 Convention provides for a unified liability regime covering claims arising from thecollision. Any further issues, e.g., the recoverable damages, the identity of the liable parties,
title to sue etc., are left to the law otherwise applicable, determined by international private
law principles. These principles normally consider each claim separately, to the effect that aclaim by a first vessel against a second may be decided on different rules of law than those
applicable in the claim by the second vessel against the first, even though both claims concern
the same collision.
Should a revised Convention include international private law rules on the law otherwise
applicable to all claims, seeking to identify one law that is relevant? If so, should therevised Convention adopt the choice of law provisions of articles 4 and 5 of CMI’s 1977
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Draft International Convention for the Unification of certain rules concerning civil
jurisdiction, choice of law, and recognition and enforcement of judgements in matters ofcollision (the “CMI 1977 Rio Draft Convention”),
published
in
the
CMI
Yearbook
1977
Part
I,
p. 22, https://comitemaritime.org/publicationsdocuments/cmi-yearbook/ ?

Most of the members of JMLA do not recognize the necessity for theinternational private law provisions.

6.

Jurisdiction
The 1910 Convention does not include any provisions as to jurisdiction.
Should a revised Convention provide for jurisdiction?
If so, should the jurisdiction be based on the International Convention on certain rules
concerning civil jurisdiction in matters of collision, 1952 or on the CMI 1977 Rio Draft
Convention?
The CMI 1977 Rio Draft Convention allowed for jurisdiction:a)where the defendant has his habitual residence or domicile, or principal place ofbusiness;b)in the internal waters or territorial sea of which the collision occurred;c)where a vessel involved in the collision (other than the plaintiff’s own vessel) ora vessel under the same ownership lawfully subject to arrest, has been arrested or security
has been provided to avoid arrest on account of the collision;d)where the defendant has property subject to attachment under the law of that Stateand such property has been attached or security has been provided to avoid attachment on
account of the collision; ore)where a limitation fund has been properly constituted by the defendant inaccordance with the law of that State on account of the collision.
Most of the members of JMLA do not recognize the necessity for thejurisdiction provisions.

7.

Recognition and Enforcement
Neither the 1910 nor the 1952 Convention include regulations on the recognition andenforcement of judgments in collision matters. The CMI 1977 Rio Draft Convention provided
that State Parties would recognize judgments from other State Parties.

9Should such provisions be adopted in the revised Convention, e.g., to the effect that
judgments in collision matters rendered by the court of one Contracting State may be
enforced in another Contracting State?

Most of the members of JMLA do not recognize the necessity for therecognition and enforcement provisions.

8.

Autonomous and Unmanned Ships
Maritime Automated Surface Ships are coming. It is not yet clear whether this will require
amendments to several conventions or the creation of a single MASS convention.
Should the revised Convention stipulate that it applies to any vessel whether manned orautonomous or is it too early to consider including autonomous vessels?
If autonomous vessels should be included, should the revised Convention include specificrules for collisions involving autonomous ships?

Currently, it is unlikely that the autonomous ships would bring a
dramatical change to the collision liability regime in the near future.
However, given the ongoing discussions regarding autonomous ships in theInternational Maritime Organization and other international bodies which might
affect the future regime for the collisions in which autonomous ships are involved,
it would be important that the revised Convention provides a safeguard not tohinder the application of this special regime.

9.

Conclusions
In light of the above questions, do the revisions to the 1910 Collision Convention whichyour association supports justify the amendment of the Convention at all, or does therisk of creating a new convention which might not be as universally adopted as the 1910
Convention lead your association to the overall conclusion that the Convention should
remain as it is at present?

As was indicated in the replies to the above questions, there are several
provisions which need to be amended. However, JMLA is not convinced that they
sufficiently justify the revision of the 1910 Collision Convention which has many
contracting states and has been globally accepted.
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Nevertheless, JMLA does not oppose to the further examination by CMI as
to the possibility of the 1910 Collision Convention's amendment taking into
account of the impact to the maritime practice and reaction from the maritime
industry.

Information on Japanese Law

There are differences between the provisions of the Collision Convention
1910 and of the Japanese Commercial Code. The Japanese Commercial Code wasrevised in 2018 introducing the rules that partly align with those of the current
Collision Convention 1910. This alignment had yet to be accomplished until 2018,
kept untouched since 1899. The old rules provided a one-year time bar (the prerevised Article 798(1) of the Commercial Code) but omitted when that period wouldcommence. 3 The revised Commercial Code introduces the two-year time bar andclarifies when this two-year period will commence (at the time when the accident
occurs) by following Article 7 of the Collison Convention 1910 (the revised Article
789 of the Commercial Code).
The point is that, however, the above rule will only be applied to the property
damage caused by a collision of vessels, unlike the Convention. The compensation
claim for the loss of life and personal injuries caused by the same collision will bebarred under the general tort law. This means that the period is extended to five
years and the starting point of it depends on the actual knowledge of the victim(Articles 724 and 724-2 of the Japanese Civil Code). This intentional deviationfrom the Convention is based on the thought that whether and how the personal
damage should be compensated must be determined consistently inside Japanesejurisdiction.
The new Commercial Code does not mention how the tortfeasor (generally,each shipowner of colliding vessels) shall be liable against victims for bothproperty damage and the loss of personal life and injuries. Article 798 of theCommercial Code merely introduces the first paragraph of Article 4 of theConvention while it does not follow the second and third paragraphs. Thus, thequestion of whether the shipowners shall compensate the damages jointly or on
pro rata basis will be determined under the general tort law. In this respect,
Article 719 of the Japanese Civil Code provides joint liability between joint
tortfeasors.
However, JMLA is not convinced these differences sufficiently justify therevision.

3 Thus, the Supreme Court of Japan inevitably decided that this period would start at the time

when the victim identified the damage and the tortfeasor according to the general tort law(Supreme Court Decision, November 21, 2005, Minshu Vol. 59, No. 9, p. 2558).
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