8 September 2020
With regard to liability in a collision, the Indonesian Commercial Code (“ICC”), which was enacted in the 19th century, provides that:
a. If the collision is caused by force majeure, or if there are doubts as to the cause of the collision, the damages shall be borne by those who have suffered them.
b. If the collision is caused by the fault of one of the colliding vessels, liability to remedy the damages shall be borne by the vessel that committed the fault. Wirjono Prodjodikoro, an Indonesian legal scholar, stated that a collision caused by a defect (unseaworthiness) of the vessel shall also be considered as the fault of the vessel.
c. If the collision is caused by the fault of two or more vessels, the liability of each vessel is in proportion to the degree of their respective faults. Prodjodikoro stated that the test of fault is the impact of the fault on the damage suffered, irrespective of the intention (culpa) of the vessel.
d. If a vessel being towed collides due to the fault of the towing vessel, the owners of both the towed and the towing vessel shall be jointly and severally responsible for the damage.
Upon declaring independence in 1945, Indonesia decided that the articles of the ICC would continue to be followed unless they were contrary to the Indonesian Constitution. Under Law No. 17 of 2008 regarding Shipping (the “Shipping Law”), unless it can be proven otherwise, the master of the vessel shall be held liable in a vessel accident.
As to collisions, Indonesia has ratified the 1972 International Regulations for Preventing Collisions at Sea, by way of Presidential Decree No. 50 of 1979, but has not ratified the Convention for the Unification of Certain Rules of Law with respect to Collisions Between Vessels.
Pollution
Indonesia has ratified the following treaties:
a. The United Nations Convention on the Law of the Sea of 1982 (“UNCLOS”), by way of Law No. 17 of 1985.
b. The International Convention for the Prevention of Pollution from Ships of 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997 (“MARPOL”), by way of Presidential Decree No. 46 of 1986 and Presidential Regulation No. 29 of 2012.
c. The International Convention on Civil Liability for Oil Pollution Damage of 1969 and its amendment of 1992 (“CLC”), by way of Presidential Decree No. 52 of 1999.
Indonesia has not ratified the International Oil Pollution Compensation (“IOPC”) Fund Convention of 1992 and the Supplementary Fund Protocol of 2003.
Under the Shipping Law, all crew members in a vessel are obliged to prevent and mitigate environmental pollution from their vessel. In addition, vessel owners or operators are obliged to procure an insurance policy for their pollution liability. Failure to comply may result in imprisonment and/or fines for vessel owners or operators.
This is an excerpt from The International Comparative Legal Guide to: Shipping Law 2020. You can find the full chapter here.
For further information, please contact:
Dyah Soewito, Partner, Soewito Suhardiman Eddymurthy Kardono
dyahsoewito@ssek.com
