Commercial Law

Dede’s law and business series: Maritime Duty of Care (1)

By Foluke Akinmoladun

Tort is a legal cause of action where a person suffered some compensable harm as a result of the negligence or wilful misconduct of another person. The word “tort” derives from a Latinate Middle English word meaning “injury”. In this light, maritime tort applies to cases where injury, loss or damage is caused to a person or their interests in a maritime setting. This gives maritime tort law a very broad range of coverage, particularly as no malice or premeditation is required to designate liability under the tenets of tort law.

A maritime incident must be substantially related to traditional maritime activity, in order to be considered as maritime tort. Usually, most cases involving ships have been held to relate to traditional maritime activity, because ship incident satisfies traditional maritime activity test. At least one alleged tortfeasor (wrongdoer) that is the ship itself, may be engaged in an incident and such maritime activity may be held to have been the proximate cause of the incident.

Traditional maritime activity test for maritime jurisdiction was originally developed as a way for courts to weed out unusual cases that don’t fit into maritime jurisdiction. A tort incident becomes maritime tort if it falls within maritime jurisdiction and this is proved by a maritime location and a maritime connection. A tort incident’s maritime connection test further has two components, which is that the incident must have potential impact on maritime commerce and secondly the incident is substantially related to traditional maritime activity. When maritime incident involves ship on navigable waters, the maritime incident is likely to be a maritime tort. In order to be within maritime jurisdiction, the tort must have occurred on navigable waters or must have been caused by a ship on navigable waters.

Foluke Akinmoladun

A claimant whose negligence contributed to an accident can still bring suit against others responsible for accident. This is different from contributory negligence which limits when a person can sue others for an accident in which the person was also negligent.

The law applies a simple comparative fault standard for establishing negligence. If the claimant’s own fault contributed to an accident, claimant can still sue others who were also at fault, but the claimant’s recovery is reduced by the percentage of fault attributable to the claimant. In maritime cases, if a person is negligent, it is determined by the “reasonable person” standard to see if that person acted reasonably under the circumstances. Maritime courts would look at expert testimony or other sources to determine what a reasonable person would have done. The facts must also show that there was injury, caused by the defendant and this resulted in the injury inflicted on the claimant.

In Nigerian Ports Plc. V Beecham Phar. Ltd (2017) 11 Admiralty Law Reports of Nigeria (ALRN), at pg. 131 -132 in explaining the Latin maxim, res ipsa loquitur, meaning, the facts speak for itself, stated that the facts showing injury which cannot be explained outside the actions of the tortfeasor should amount to negligence. Hon. Justice Nwali S. Ngwuta JSC. in that case, noted that,
“…res speaks in circumstances where the relevant facts stand unexplained and the natural and reasonable as opposed to conjectural, inference from the facts show that what happened is reasonably to be attributed to some act of negligence on the part of the defendant, or some want of reasonable care in the circumstances. I agree with the learned counsel for the appellant that res ipsa loquitur is a rebuttable presumption which arises upon proof that the instrumentality causing the injury complained of was at the material time in the defendant’s exclusive control”

To further emphasise the importance of proof of injury, in Onwuka v Omogui (1992) 3 Nigerian Weekly Law Report (NWLR) (prt 230) 393 at 415, paras D -F, it was held,
“…that an accident may, by its nature be more consistent with its being caused by negligence for which the defendant is responsible than other causes, and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. In such a case, the burden of proof is on the defendant to explain and show that it occurred without fault on his part.”

Maritime tort can be wide and where the injury or damage is significant and can be proved, a defendant may find itself having to prove that they took all reasonable care to avert the injury or be held liable.

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