Asymmetric Maritime Collisions: The Erosion Of The Colregs Fault Doctrine And The Case For Regulatory Reform
- IJLLR Journal
- Jun 7
- 1 min read
Anirban Das, Master (Foreign-Going) | Maritime Faculty
ORCID: 0009-0002-4811-9072
ABSTRACT
The international collision regulations are founded on equal moral agency, requiring every vessel, regardless of size or technology, to observe identical duties of navigation. This paper argues that the principle of equal moral agency is being systematically displaced by a logic of distributive justice, under which liability increasingly reflects a vessel's technological capacity, economic power, and ability to absorb loss rather than its breach of the rules. Drawing on primary judicial, regulatory, and institutional sources, the paper maps this doctrinal shift in collisions between vessels of starkly unequal size and capability, such as encounters between large merchant ships and small fishing vessels. It advances three contributions. First, it documents a functional convergence between the English causative potency doctrine and Chinese equitable interpretations of fault, both of which fold technological capacity into the apportionment of liability. Second, it introduces the concept of shadow pricing, the adjustment of settlements according to jurisdictional risk and the financial vulnerability of the opposing party, as the mechanism through which distributive justice operates without leaving a judicial trace. Third, it proposes concrete reforms, including international guidance on the special circumstances rule, greater transparency from protection and indemnity insurers regarding settlement ratios, and revised seafarer training in litigation-aware documentation. The paper concludes that technical compliance with the rules of the road is no longer a sufficient condition for legal protection, and that a prudent operator must treat its evidentiary record as the primary instrument of self-protection.
Keywords: asymmetric collisions; collision regulations; distributive justice; shadow pricing; maritime law; causative potency; capacity-based liability.
