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Subsea cables g By a occasionally am D sustain damage le b caused by vessels. Ca Whether the damage results from a trawler’s nets snagging the cable, or whether it is severed by an anchor, the result is the same: a cable which needs repairing; loss of service; and an inevitable battle to recover costs and losses. Finding the vessel causing the damage and obtaining compensation is easier said than done. This article considers jurisdiction for cable damage claims and examines when settlement would be an attractive option, rather than pursuing claims in court. Immediate considerations Immediately after a break is detected it is vital that the cable owner should take steps to identify the vessel responsible. Cable owners must ensure that evidence of losses and receipts for repair costs and associated expenses are retained so that a claim may be
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easily evidenced. It will also be necessary to consider where exactly a claim may be brought.
Usually, there will be no direct (contractual) relationship between the cable owner and the responsible party, but the vessel will have a duty of care not to damage property such as the cable. Claims will usually be brought in tort, a civil claim for loss and damage for an act done wilfully or negligently in breach of the duty of care. Jurisdiction But where may such a negligence claim be brought? It is possible that the courts of more than one country will have jurisdiction to hear claims - especially if the break was in international waters. Which courts have jurisdiction may be determined by the location of the damage; the nationality of the parties involved; where the ensuing losses were suffered; or the vessel’s flag state. Where there is more than one jurisdiction available, the benefits of bringing claims in each of those possible jurisdictions should be carefully examined. Some may allow a shipowner to limit its liability, which would be disadvantageous to a cable owner if losses are high, and some more easily allow a claimant to defeat the owner’s right to limit liability. Others do not allow for recovery
of a claimant’s costs, and all have different approaches to the conduct of a claim. Once a comparison of the available jurisdictions is complete, the cable owner should commence proceedings in its favoured jurisdiction in order to ensure that claims will be handled there. If it fails to do so swiftly, the shipowner may win a “jurisdiction race” by commencing proceedings first, in a jurisdiction that favours the ship owner, such as seeking a declaration that its vessel was not responsible for the damage. Once that action is underway, it will be very difficult for a cable owner to bring claims elsewhere. Security Another early consideration must be to secure the claim. There is no point fighting an expensive legal action if, at the end of it, there is no asset against which to realise the judgement. The cable owner may take steps to arrest the responsible vessel while it is in a suitable jurisdiction. There are, broadly, two types of jurisdiction in this respect. If the vessel is arrested in the ports of certain countries then the claimant is limited to bringing his claim in the courts of that particular country. The act of arrest determines the jurisdiction of the claim proceedings. In other jurisdictions, such as South Africa, a claimant may arrest the vessel in South Africa but then fight the substantive claim elsewhere- a so called ‘security only” arrest. The need for security 22