The Transformation from Fault Liability to Strict Liability: A Cutting-edge Indonesian Maritime Tort Law

Universitas Pasundan, Bandung, Indonesia

^* Corresponding author: Irma.rachmawati@unpas.ac.id

Abstract

Strict liability has gained recognition in Indonesian law, particularly following Indonesia's ratification of several international conventions in the late 1990s. The Indonesian tort law system often contrasts strict liability with fault-based liability. Article 536 of the Commercial Code stipulates that "all collisions are due to his fault," requiring the plaintiff to prove fault in maritime collision cases. This provision aligns with the faultbased liability principle, which places the burden of proof on the claimant. However, this approach differs from environmental law and international conventions on marine pollution, which adopt the principle of strict liability. The International Convention on Civil Liability for Oil Pollution Damage (1969, amended in 1992) mandates strict liability for oil pollution incidents. Despite this international precedent, Indonesian courts frequently rely on fault-based liability in environmental cases, as reflected in decisions grounded in Article 1365 of the Indonesian Civil Code. Plaintiffs often face challenges when advocating for strict liability, with many judges rejecting such arguments in Favor of traditional fault-based principles. Given the specific rules governing compensation in environmental cases, fault-based liability is increasingly considered outdated and ineffective. Consequently, strict and fault-based liability shapes marine pollution compensation in Indonesia. While strict liability is not a novel concept in Indonesian law, its application remains limited due to persistent challenges and legal hurdles. Addressing these obstacles is crucial for evolving the legal framework, particularly in pollution and maritime collision cases, where a shift from fault-based liability to strict liability is necessary. This study, conducted through a legal analysis with an analytical-descriptive focus, utilized legal materials collected through library and field research. The findings emphasize the need for Indonesia to adopt strict liability in environmental pollution cases while maintaining fault-based liability for other tort cases. This transformation is essential for aligning Indonesian tort law with international standards and improving legal remedies' effectiveness in marine and environmental pollution cases.