Governing Law
Collisions between vessels and other objects, and liability for
damages to vessels, people and goods on board are governed by the
following laws, regulations and international conventions:
- Indonesian Commercial Code (Kitab Undang-undang Hukum Dagang) ("IComC");
- Law No. 17 of 2008 concerning Shipping (Undang Undang No. 17 Tahun 2008 tentang Pelayaran);
- Government Regulation No. 9 of 2019 concerning Vessel Accident Investigations (Peraturan Pemerintah No. 9 Tahun 2019 tentang Pemeriksaan Kecelakaan Kapal);
- IMO Resolution MSC.255 (84) adopted on 16 May 2008 concerning the Adoption of the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code); and
- Ministry of Transportation Regulation No. PM 6 of 2020 concerning Vessel Accident Investigation Procedures (Peraturan Menteri Perhubungan No. PM 6 Tahun 2020 tentang Tata Cara Pemeriksaan Kecelakaan Kapal).
Vessel Operator, Defined
A Vessel Operator (Pengusaha) is a person or entity who utilizes a
vessel for sailing at sea or on inland waterways and either steers
the vessel itself or orders another person employed by it to
skipper the vessel. (Art. 320 of the IComC).
Liability Allocations
Indonesian maritime collision liability follows comparative fault
principles allowing a plaintiff to recover damages from a defendant
after deducting the percentage of fault attributable to the
plaintiff.
No Fault Events
If the collision was caused by an unintentional incident, or due to
an event that was beyond the control of the vessels involved, or if
there is doubt concerning the cause of the collision, then each
party bears its own losses. (Art. 535 of the IComC).
One Party at Fault
If the collision was caused by the fault of one of the colliding
vessels, then the vessel operator of the vessel at fault bears all
of the losses. (Art. 536 of the IComC).
This rule is illustrated in the holdings of the Supreme Court in Allied Assets, Co. Ltd. v. PT Maskapai Pelayara Pulau Laut, Decision No. 786K/Pdt/2017 ("Allied v. Maskapai"). Allied Assets, Co. Ltd was the owner of the vessel "KM Anu Bhum". PT Maskapai Pelayara Pulau Laut was the owner of the vessel "KM Pul Perkasa". (KM in the Indonesian language stands for "Kapal Mesin" which is translated as "Motor Vessel").
The Shipping Tribunal (Mahkamah Pelayaran) (see infra for a discussion concerning the Shipping Tribunal (Mahkamah Pelayaran)) held that
Based on examination by the Shipping Tribunal (Mahkamah Pelayaran) (see infra for a discussion concerning the Shipping Tribunal (Mahkamah Pelayaran)), the collision occurred when the Defendant's vessel "KM Pul Perkasa" was being towed from Prajen-Palembang anchorage to Palembang port by tug boat "TB Tanjung Buyut 2-212" with the assistance of tug boat "TB Tanjung Buyut 1-206". "KM Pul Perkasa" had to be towed because her engines had failed.
Later during the tow, tug boat "TB Tanjung Buyut 2-212" moved and positioned itself on the port side of "KM Pul Perkasa" while tug boat "TB Tanjung Buyut 1-206" remained in an assisting position.
During the towing process, strong currents pushed "MV Pul Perkasa" to its port side and tug boat "TB Tanjung Buyut 2-212" was unable to control the KM Pul Perkasa's movements. As a result, KM Pul Perkasa collided with KM Anu Bhum, which was at anchor.
The Shipping Tribunal declared that the collision was proximately caused by the lack of maintenance of KM Pul Perkasa engine and the lack of planning and coordination in the towing process.
Pursuant to the Shipping Tribunal's decision, the Plaintiff submitted a claim to the North Jakarta District Court and requested a declaration by the North Jakarta District Court that the Defendant is liable for the damages caused by the collision based on Article 536 of the IComC. In addition, the Plaintiff also requested that the North Jakarta District Court order the Defendant to pay for all the damages suffered by the Plaintiff in the form of the costs to repair KM Anu Bhum.
Following the claim, the North Jakarta District Court decided that the Defendant had been proven to have committed an action against the law, and ordered the Defendant to pay for all of the damages. Despite the Defendant's attempt to appeal the decision, the Jakarta High Court (the court of appeal) upheld the North Jakarta District Court's decision.
On the cassation level, the Supreme Court rejected the Defendant's cassation and upheld the antecedent decisions stating that the implementation of Article 536 of the IComC was correct in the matter concerning the collision between KM Pul Perkasa and KM Anu Bhum.
Comparative Fault
If the collision was caused by the fault of both parties, then
liability is apportioned between the parties at fault on a
percentage basis. (Art. 537 of the IComC). Allocation of fault is
determined by the panel of judges adjudicating the dispute. (Art.
537 of the IComC). If the allocation of fault cannot be determined,
fault will be allocated on an equal basis. (Art. 537 of the
IComC).
Death or Personal Injury
If a collision results in death or injury to a person in an event
where the collision was caused by the fault of both parties, then
both vessel operators are liable to third parties for all losses
arising from the event. (Art. 537 of the IComC).
Subrogation
In an event where the collision was caused by the fault of both
parties, and one of the parties provides compensation in excess of
its share of comparative fault, the party paying more than its
share obtains rights of subrogation and indemnity from the party
paying less than its share. (Art. 537 of the IComC).
Towing
If a vessel collides with another vessel while being towed due to
the fault of the towing vessel, the vessel operators of the towing
vessel and the vessel being towed are jointly and severally liable
for losses arising from the collision. (Art. 538 of the IComC).
This rule is illustrated in the holdings of the District Court of Samarinda in Eric Salim Liem, as the Director of PT Ersihan Satya Pratama (Plaintiff) v. Antonius Acing (Defendant I), PT Kelian Bahari Shipping (Defendant II), PT Pancaran Samodra Transport (Defendant III), and PT Trubaindo Coal Mining (Defendant IV), Decision No. 77/Pdt.G/2013/PN.Smda ("Ersihan v. Antonios Acing").
In this case, the Plaintiff was the owner of a barge "BG Pesut 2402" while Defendant I was the Captain of tug boat "TB Raymond I" and barge "BG PST 911", which were owned by Defendant II.
During the time of the collision, the Plaintiff's vessel was
moored at a crane barge jetty. The vessel was suddenly hit by barge
"BG PST 911" that was being towed by tug boat "TB
Raymond I" under the command of Defendant I.
The accident caused damage to the Plaintiff's vessel, barge
"BG Pesut 2402", resulting in the Plaintiff spending more
than one hundred million Rupiah to repair the vessel. The Plaintiff
requested the District Court of Samarinda to declare Defendant I
liable for damages based on Article 1367 of the Indonesian Civil
Code which states that an individual is liable not only for damages
caused by his/her actions, but also by individuals who are under
his/her responsibility or by goods under his/her possession and
control.
The Plaintiff also claimed that based on Article 536 of the IComC, Defendant II as the owner of barge "BG PST 911" is liable for the damages suffered by the Plaintiff. Article 536 of the IComC states that in the event that a collision is caused by the fault of one of the colliding vessels, then the vessel operator of the vessel at fault bears liability for all of the losses.
The District Court of Samarina held that Defendant I had been proven to have committed an action against the law and ordered Defendant II to pay all of the damages suffered by the Plaintiff.
Pilotage
If a vessel collides with another vessel due to the fault of a
pilot who is required by law to navigate, the pilot and the vessel
operator of the vessel being piloted are jointly and severally
liable for all losses arising from the collision. (Art. 539 of the
IComC).
If a vessel, immediately after experiencing a collision, sails to a port of refuge and becomes a total loss prior to arriving at its destination, then unless proven otherwise, the loss is deemed to be a result of the collision. (Art. 540 of the IComC).
Collision with Other Things
The rules set out below apply to collisions between vessels and
other movable or stationary objects.
If the object in question is sufficiently lit and in a reasonable
location, the vessel operator of the vessel colliding with the
object is liable for the losses suffered unless it is proven that
the collision was not the fault of the vessel operator. (Art. 544a
of the IComC).
Ship Arrest
Vessels are subject to arrest as security for civil maritime claims
arising out of collisions based on a court order. (Arts. 222 and
223(1) and the Elucidation to Art. 223(1) of Law No. 17 of 2008
concerning Shipping). However, arrest orders are very difficult to
obtain in civil matters because the Ministry of Transportation has
not yet promulgated implementing regulations governing arrest
procedures and thus courts are reticent to dictate procedures for
arrests. Arrests are more easily conducted by harbor masters for
port state control violations that may arise in the context of a
collision, or by the police, coast guard or navy for purposes of
preservation of evidence or for ensuring safety and security.
Limitations of Liability
Article 541 of the IComC provides a limitation of liability of Rp50
(fifty Rupiah) (about a tenth of a US cent) per net cubic ton for a
Vessel Operator for damages arising out of a collision; rendering
liability de minimus. The IComC, and thus this provision, was
promulgated in 1847 and is thus considered to be outdated by
Indonesian courts. No liability limitation provisions are currently
applied.
Master Liability and Reporting
The master of a vessel involved in a collision is personally liable
for the damages arising from the collision unless the master is
able to prove that the collision was not his/her fault. (Art. 249
of Law No. 17 of 2008 concerning Shipping).
The master of a vessel with knowledge of a collision involving
his/her own vessel or other vessels is required to report the event
to the harbor master of the nearest port if the event occurred in
the territorial waters of Indonesia or, if the event occurred
outside of Indonesia's territorial waters, to the official of
the foreign government with jurisdiction over the place the event
occurred. (Art. 248 of Law No. 17 of 2008 concerning Shipping).
Preliminary Examination of Collisions
A harbor master or other government official appointed by the
Ministry of Transportation is obliged to conduct an investigation
into every vessel accident to obtain preliminary information and/or
evidence concerning the event. (Art. 220(1) and 221(1) and (2) of
Law No. 17 of 2008 concerning Shipping). If the event occurs
outside of Indonesian waters, a harbor master or other government
official will be appointed after the relevant Indonesian embassy or
consulate receives a vessel accident report from the authorized
official of the local foreign government. (Art. 221(2) of Law No.
17 of 2008 concerning Shipping). The results of the preliminary
investigation are then sent to the Shipping Tribunal (Mahkamah
Pelayaran) for further examination. (Art. 221(3) of Law No. 17 of
2008 concerning Shipping).
Shipping Tribunal – Mahkamah
Pelayaran
After the preliminary examination of a collision by the harbor
master (see supra), further examination of a collision is then
conducted by the Shipping Tribunal (Mahkamah Pelayaran) comprised
of a panel of experts constituted by and responsible to the
Ministry of Law and Human Rights. (Articles 1(58), 250 and 251 of
Law No. 17 of 2008 concerning Shipping). Investigations focus on
the vessel collision, the adherence by the master to the relevant
code of professional ethics, the competency of the master and/or
the responsible vessel officers. (Art. 221(2) of Law No. 17 of 2008
concerning Shipping).
The authority of the Shipping Tribunal (Mahkamah Pelayaran) is limited to investigations of collisions between commercial vessels, between commercial vessels and State vessels, and between commercial vessels and warships. (Art. 252 of Law No. 17 of 2008 concerning Shipping).
The Shipping Tribunal (Mahkamah Pelayaran) is charged with the duty of assessing fault or negligence in the application of professional seafarer standards of the master and/or vessel officers and providing recommendations to the Minister of Transportation concerning the imposition of administrative sanctions. (Art. 253(1) of Law No. 17 of 2008 concerning Shipping).
The vessel owner or operator is required to cause the master
and/or crew to appear before the Shipping Tribunal (Mahkamah
Pelayaran), failing which the vessel owner or operator may be
subject to sanctions taking the form of warnings, or suspension or
revocation of licenses. (Art. 254(2) and (3) of Law No. 17 of 2008
concerning Shipping).
The Shipping Tribunal (Mahkamah Pelayaran) is regulated in detail
by Government Regulation No. 9 of 2019 concerning Vessel Accident
Investigations.
National Transportation Safety Comittee
Investigations
Investigations are also conducted by the National Transportation
Safety Committee to find facts to be used for the purpose of the
occurrence of similar accidents. (Art. 256(1) of Law No. 17 of 2008
concerning Shipping). The National Transportation Safety Committee
is supposed to conduct investigations into every vessel collision.
(Art. 256(2) of Law No. 17 of 2008 concerning Shipping). However,
the National Transportation Safety Committee is not supposed to
determine fault or negligence in the event. (Art. 256(2) and (3) of
Law No. 17 of 2008 concerning Shipping).
Administrative sanctions recommendations may take the form of
warnings, revocations of certificates of competency or (Art. 253(2)
of Law No. 17 of 2008 concerning Shipping).
Shipping Information System
The central and regional governments are required to organize and
operate a Shipping Information System to compile, process, analyze,
store, study and disseminate information to support shipping and
the formulation of related policies and increase services to the
public. (Art. 269 of Law No. 17 of 2008 concerning Shipping). The
Shipping Information System is composed of several components, one
being the safety and security information system, which must
include information concerning vessel collisions. (Art. 270(c)(7)
of Law No. 17 of 2008 concerning Shipping).
Time Bars and Stays – Statute of
Limitations
A plaintiff must initiate legal proceedings seeking compensation
for damages arising out of a collision within two years from the
date the collision occurred or the claim is lost and any suit filed
is subject to dismissal. (Art.742 of the IComC). Provided however
that the statute of limitations will be stayed if the plaintiff is
able to prove that it has delivered a warning letter signed by an
authorized person acting for and in the name of the plaintiff
describing the claim with sufficient specificity; or the plaintiff
is able to prove that it has commenced other forms of legal
proceedings. (Art. 1979 of the ICC).
Jurisdiction
Lawsuits may be filed in the local Indonesian District Court with
jurisdictional territory covering any of the following places: the
residence of the defendant, or if there are several defendants, the
residence of any one of them; the place where the collision
occurred; or the place where the defendant's ship is
registered. (Article 543 of the IComC).
Criminal Provisions
Law No. 17 of 2008 concerning Shipping criminalizes a wide range of
acts and omissions relating to shipping and port activities with
maximum criminal penalties up to 20 years imprisonment and/or fines
of up to Rp2,500,000,000 for some conduct. (See generally, Chapter
XIX – Criminal Provisions of Law No. 17 of 2008 concerning
Shipping).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.