Determining the Law Applicable to Tort Liability Resulting from Ship Collision in Algerian Law and Comparative Law
Prof. Jamal bin Osman
Professor of private international law – Faculty of Law and Political Science University of Abubakr Belkaid – Tlemcen – Algeria
This research deals with the issue of determining the law applicable to tort liability resulting from ship collision at sea in the Algerian law along with laws of other countries. Collision cases can occur between ships flying the flags of different countries. This collision may occur in the waters of one country while the dispute is raised before the judiciary of another country. This leads to conflict of laws, as the dispute regarding the compensation claim is affected by more than one law.
Despite the existence of the Brussels Treaty, which unifies some of the rules related to maritime collision, the principle of relativity of treaties and the treaty’s failure to cover all aspects of conflict limited its role to the confinement of the conflict’s scope rather than eliminating it.
This makes referencing national laws inevitable and emphasizes the significance of the topic by raising a major problem concerned with reaching a law governing tort liability resulting from a maritime collision. The purpose of this study is to search for solutions in the case of conflict of laws. Rather than examining the provisions of collision established in national laws, the search is concerned with the rules of private international law and the method of conflict; the provisions of the latter in many countries, including Algeria and Kuwait, stipulate the application of the law of the place of occurrence of the harmful act; in the field of tort, this is known as the local law.
Thus, the place of collision becomes an essential element in determining the focus of this research, rather it is the main reason this research is divided into two sections. In the law of the sea, sea water is either subject to the sovereignty of a state or not. The first section of this research deals with the issue of determining the law applicable when the collision occurs in waters subject to sovereignty; internal and regional waters. On the other hand, the second section deals with determining the law applicable when the collision occurs on high seas, which are considered non-sovereign waters.
The study concludes with several results, the most important of which is that in the field of tort, local law remains the basis, despite numerous attempts to undermine it. Therefore, in the field of maritime collision, the collision that occurs in territorial waters is subject to the law of the sovereign state over those waters. This solution is logically impossible to adopt in the case of collisions that occur on high seas. Consequently, this leads to the disparity of solutions and their juridical inconsistency, judiciary and legislation.
Keywords: local law, flag law, territorial waters, high seas, law of the judge.