Maritime authorities in Latin America - both judge and interested party?

In several Latin American jurisdictions, including Colombia, it is often the case that the relevant maritime authorities are used to decide liability in cases when a shipping casualty occurs - in addition to being responsible for the supervising, controlling and setting of the navigation rules.

This has the consequence that in many instances, as part of the investigation following a casualty, the maritime authority has to decide their own liability.

How does this work in practice?

The evidence collected during the investigation and studied by the First Instance Judge (the Harbour Master) and then revised in appeal (the Dimar), is used when deciding if the maritime authorities - to which both the Harbour Masters and the Dimar are part of - may have any liability.

An example of this is frequently seen in the Barranquilla Port, Colombia, where the maritime authority is in charge of making the bathymetry of the river and actualizing charts to guarantee a safe navigation; at the same time, this authority (the Harbour Master) is in charge of investigating any casualty due to grounding - which may occur due to a poor dredging, which may be again a responsibility of the maritime authority.

In a specific case of a grounding in the Barranquilla Port, the maritime authorities have sought to avoid liability by demonstrating that the bed of the river is “alive” and in constant change. This argument was successfully used in the MV “Cala Panama” case.

Columbia High Court award

The Colombia High Courts are not known for regularly issuing awards in maritime matters, instead preferring to rely on the rulings of the maritime authorities. However, earlier this month the Administrative Supreme Court (Consejo de Estado) issued an award referring to a maritime casualty where, amongst others, the alleged liability of the maritime authority was in dispute (Cirilo Olaya v Dirección General Marítima [2023]).

The case is regarding a casualty involving MV “Nadiesta” that sank on 7 August 2010 causing the total loss of the vessel and the death of two crew members when sailing in the “Bocana, bajo Baudó – Chocó” waters.

The claimants stated that the casualty occurred because of the breach from the maritime authority in marking the zone as a “hazardous” one.

The award from the Consejo de Estado itself was relatively uncontroversial - it indicated that the casualty did not occur by any means because of the maritime authority’s liability, but because of external causes such as the Master´s lack of training, bad weather and the hazardous conditions of the waters.

However, what is of particular interest is that the evidence used by the Consejo de Estado to reach their conclusions was the same evidence produced and used during the investigation carried by the maritime authority (Buenaventura´s Harbour Master), when the vessel owners unsuccessfully accused the maritime authority of being liable for the casualty. This raises questions about the objectivity and independence of these investigations, and the consequential awards issued.

Comment

It is imperative that issues of this nature are considered when studying a maritime casualty and defining coverage under a Marine Insurance Policy in Latin America. Whilst the maritime authorities themselves are not authorised to provide a decision or ruling in relation to the applicability of an insurance contract, the findings of their investigations can be used and may result in coverage being disputed as, under Columbian law, these awards are accepted as the final decision in terms of liability and the cause of the casualty.

In addition, the findings of a maritime authority’s investigation are used in charterparty disputes, specifically when deciding if the obligation to take the vessel to a safe port was fulfilled. This is important to consider because a decision from the maritime authority is once again coming from the body obliged to keep the good and safe conditions for navigation. This again raises the possibility that the reasoning behind a case may be unintentionally affected, with the maritime authority being both judge and interested party.

Related item: The risks of translated strike clauses when dealing with claims for delay

Read other items in Marine Brief – June 2023