Extra First Class COC Courses Part ‘A’

Subject: Risk Management & Marine Insurance

3. With examples, explain how, failure to practise and comply can and will
affect accident compensation provisions, leading to personal faults/liabilities
and `contributory negligence’.

Student Name: Logesh NU Student ID: 62612

ASSESSOR: Capt.S.Pullat Date of Submission: 04.05.2023

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Contents:

1. Introduction

2. Contributory Negligence

3. Causes leads to Contributory negligence:

Evidence collection:

5. Why evidence needed?

6. Case study

6.1 Jarring injury

6.2Aware of the risks

7. Conclusion

1. Introduction

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Ship’s senior officers and those working within the shipping industry will be well aware
that unforeseen incidents can and do occur.

Fortunately, most of these incidents are minor and do not result in a claim against the
ship.

However, sometimes they can be more serious, and it is for the liabilities arising from
these incidents that marine insurance, including protection and indemnity (P&I)
insurance, is provided.

As a senior officers and a working professional its everyone duty to create awareness on
negligence in safety or negligence in assessing the risk factors leads to personal
liabilities.

Negligence is a tort that is caused due to a breach of care by which injury or damages
are caused to another individual. This act is usually caused due to a person not taking
sufficient care while doing an activity that a prudent man would have.

In this document with a case study we will have a rough glance of contributory
negligence or comparative negligence and importance of evidence collection during the
incidents and accidents.

2. Contributory Negligence

The concept of negligence is one of the most important legal principles at work. As most
people know, the plaintiff who is suing for damages must prove not only that they were
injured, but that the defendant they are suing was in some way responsible or failed to
act in a way that could have prevented the harm that was done.

However, the defendant is not the only person who can be found to have been negligent.
Another consideration during an injury case is whether or not an injured plaintiff’s
actions or behavior contributed to the incident; when a plaintiff may have contributed to
his or her injury, it is known as “contributory negligence.”

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3. Causes leads to Contributory negligence:

The plaintiff ignored an obvious risk to his or her safety.

The plaintiff acted in a way that was careless and/or dangerous, which contributed to the
accident which injured them.

The plaintiff failed to act in a way a reasonable person would be expected to act when it
comes to their own safety and the safety of others

If a defendant is able to prove contributory negligence on the part of the plaintiff, the
court may find that it offsets of some or all of the defendant’s responsibility for the
accident.

It is important to note that a plaintiff’s actions can reduce the claim amount proportion to
the negligence.

It is not always entirely cancel out the defendant’s responsibility for an incident claimed
by plaintiff.

4. Evidence collection

In the event of a marine casualty, the ship-owner can prosecute a claim accurately and
successfully by taking some careful considerations. The ship Master needs to send full
details and documentation relating to any accidents or incidents resulting in damage to
the ship, property, cargo, or personal injury. It is, therefore, important that any
documentation and correspondence on board concerning claims are filed carefully and
are handed over during change of command.

It also important for senior officers to know the importance of data collection and
emergency contacts of insurance advisors, with onboard data or evidence collection
checklist for each incidents given by P&I.

5. Why evidence needed?

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The important reason to collect evidence is to know what really happened and how it
happened.

1) Determining the liability: Identifying which part was at fault for the purpose of
defending the claim.
2) Preventing the incident from happening again.
3) Demonstrating compliance of rules and regulation of defendant.

Evidence often will be looked by doctors, insurers, civil servants, lawyers and judges

6. Case study:

Seaman injured aboard Marine Scotland vessel awarded over £4,000 in damages after
finding of contributory negligence

Paul Farley, who was employed as an Able Seaman aboard MPV Hirta on a fixed term
appointment, argued that he had lost potential future earnings after being injured aboard
a craft being loaded aboard the vessel.

The case was heard by Sheriff Kenneth Campbell in Edinburgh Sheriff Court.

6.1 Jarring injury

The duties of the pursuer aboard the MPV.Hirta included watch keeping, maintenance,
and working on the two rigid inflatable boats (RIBs) carried by the vessel.

On 4 June 2016 the pursuer was working as a bow-man aboard a Delta RIB. The craft
was being lifted back aboard the MPV.Hirta using a crane when the pursuer moved
towards its bow in an attempt to balance it closer to the horizontal.

He was not instructed to do this by anyone on the MPV.Hirta.

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The RIB was brought over the side and lowered to the cradle on the port side of Hirta.
The stern end touched the cradle first. The bow end came down sharply.

The pursuer was seated on the floor towards the bow at that time. As a result of the
impact, the pursuer suffered a jarring soft tissue injury to his lower back as well as an
injury to his right ankle.

Following an X-ray and CT scans at the Western Isles Hospital in Stornoway, no

fractures were noted.

Keyhole surgery was later required in order to remove debris from his right ankle.

The pursuer did not return to work following the accident and felt unable to enjoy his
previous hobbies of cycling, mountain biking, hill walking, and swimming. The
pursuer’s contract with Marine Scotland reached its termination date in August 2016.

It was the pursuer’s submission that the accident was not his fault to any extent, and that
he had lost out on potential future earnings due to the top position he had held on the
defender’s reserve list for a permanent position.

For the defenders it was argued that the pursuer’s significant experience working aboard
RIBs and conduct prior to the accident indicated a significant amount of contributory
negligence.

6.2Aware of the risks

In judgment, Sheriff Campbell said of the credibility of the pursuer’s evidence: “I was
satisfied the pursuer believed in the truth of what he told me in evidence. However I
formed the impression that his account of events is informed in part by the constellation
of symptoms which he attributes to his injuries on the day, not all of which are subject
on record, and none of which was the subject of evidence from a medical practitioner.

I did not find some elements of the pursuer’s evidence about events on 4 June 2016 to be
reliable, because it was at variance with the evidence of other witnesses, which, by
contrast, was consistent on many key points about these events.”

On the pursuer’s liability for the accident: “I accept that there was shouting from crew
members as the RIB was being brought on board. Because of the concerns I have about

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the reliability of some of his evidence, I do not accept the pursuer’s evidence that people
were shouting at him to move forward on the RIB. Rather, I consider that his account
that he decided for himself to do that is what happened.”

“The pursuer is an experienced seaman, and holds a number of certificates in order to

gain which was told involved safety training. I accept the evidence of all witnesses that
on-board health and safety training was mandatory and that included RIB training on a
person’s first trip.

Accordingly, I conclude that the pursuer was or ought to have been aware of the risks in
acting as he did. I therefore find he was contributorily negligent. Taking a broad view of
the evidence in the round and having regard to the factors set out above, I assess that
contributory negligence at 50%.”

On whether there was any loss of future earnings, he concluded: “The pursuer was not
on a full-time permanent contract, and no opportunity for one arose whilst the list was
live. Further, no evidence was led to demonstrate the extent to which the pursuer might
be unfit for work, nor was evidence led to confirm whether any ongoing difficulties are
attributable to the accident rather than other causes, for example pre-existing conditions.

I accordingly conclude there was no loss under this head of claim.”

The sheriff therefore assessed loss of earnings at nil, with solatium of £5,080, interest of
£2,473, and services carried out by the pursuer’s sister valued at £1,000.

7. Conclusion

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Thus failure to practice or comply at least the standard the risk, as per the ISM or EMS
as provide by all the shipping companies included in their safety management system
leads to negligence in the duty their by we are favouring for personal liabilities.

Most of the companies has standard procedures for standard jobs we do day to day, as a
professional for a job when risk factors are more or for the new job it is ever required to
take or consult permissions and advice from office with approval to reduce the risk as
low as possible and also it will be as an evidence for duty of care so not to take the
liability on plaintiff when we seek legal ways to solve issues.

7. References:

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1) www.nepia.com North P&I The mariners role in collecting evidence handbook
(Accessed on: 28/04/2023)

2) www.maintanenceandcure.com cases review (Accessed on: 21/04/2023)

3) www.shipbusiness.com various claim handling procedure (Accessed on:

22/04/2023)

4) www.marineinsight.com marine insurance and policy (Accessed on: 22/04/2023)

5) www.scottishlegal.com seaman injured aboard Marine Scotland vessel (Accessed on:

22/04/2023)