Who bears the risk of maritime casualties

If a collision were to occur involving Iranian vessels, resulting in marine environmental pollution, fatalities or injuries, and damage to vessels, cargo, property and third parties, while effective and enforceable international insurance and reinsurance coverage is unavailable due to US sanctions, the issue should not be limited to the traditional question: Who caused the collision?
It should also address more fundamental questions: Who bears the financial risks arising from the absence of insurance? Who compensates the victims? And who bears the cost of environmental remediation and damage to third parties?
SHIPOWNER LIABILITY
The liability of the shipowner, operator, master and any other party contributing to the collision must be determined under the applicable maritime law and international conventions.
Where strict liability applies, the injured party should not be required to prove negligence or fault; rather, it must establish the damage and the facts giving rise to liability under the applicable legal regime.
The absence of insurance does not eliminate liability for the damage. Insurance is a mechanism for transferring and financing risk; it is not the source of the underlying legal liability.
THE INSURANCE GAP
If US sanctions, administered by the Office of Foreign Assets Control (OFAC), prevent or restrict Iranian vessels from obtaining international insurance, reinsurance or financial guarantees, this creates a significant insurance gap.
From a risk-management perspective, it is therefore necessary to examine whether the sanctions constitute the proximate cause of the insurance gap, while clearly distinguishing between the cause of the lack of insurance and the cause of the maritime casualty itself.
STATE RESPONSIBILITY
If sanctions create an insurance gap and a subsequent maritime casualty causes cross-border damage, the consequences of those measures for victims, third parties and the marine environment should be subject to judicial consideration.
State responsibility must be distinguished from private-sector liability. The shipowner remains responsible for the operation and management of the vessel and for maritime risks under its control, while any responsibility of a state must be examined separately under international law and the applicable jurisdictional framework.
CONTRIBUTORY RESPONSIBILITY
Where more than one party contributes to the resulting damage, the issue of contributory responsibility may arise.
There may, on the one hand, be responsibility on the part of the shipowner for maritime risks and for failing to secure available alternative financial protection. On the other hand, there may be consequences arising from sanctions that prevented or materially restricted access to insurance and reinsurance.
The injured party should not ultimately bear the consequences of an insurance gap that it did not create.
THE ROLE OF THE COURTS
This is where the competent court or tribunal has a fundamental role in determining:
Cause of Casualty: The cause of the maritime accident.
Proximate Cause of the Insurance Gap: The proximate cause of the absence of effective insurance protection.
Liability: The legal responsibility of each party.
Causation: The causal relationship between the relevant conduct and the resulting damage.
Jurisdiction and Sovereign Immunity: The applicable jurisdiction and any questions concerning sovereign immunity.
Compensation: Who ultimately bears the obligation to compensate victims and third parties, as well as meet the costs of environmental damage and remediation.
The central question is therefore: If US sanctions were the proximate cause of the insurance gap, while the shipowner bears strict liability under the applicable maritime regime, who ultimately assumes the resulting losses and compensates the victims, third parties and those responsible for environmental remediation?
This is not merely an insurance claim. It is an integrated issue involving maritime safety and liability, state responsibility, environmental damage, insurance and reinsurance, and international law.
The fundamental objective should be to ensure that an insurance gap does not become a liability gap, leaving victims, society and the environment to bear the ultimate cost of a risk they did not create.