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MARINE | Admiralty assumptions In association with Galloway
Admiralty assumptions alive and well in US
Frederick “Billy” William Swaim (left) and Spencer Swaczyk (right) of leading maritime insurance New Orleans based law firm Galloway review the important rules concerning allisions and collisions in navigable waters The UScourts employ a series of presumptions and burden-shifting principles for determining liability for allisions (the running of one ship upon another ship that is stationary) and collisions on navigable waters. Generally, a claimant in an admiralty action bears the burden of proving that negligence or unseaworthiness was the proximate cause of the damage. Maritime law in the US recognizes several presumptions, the application of which shift the evidentiary or persuasive burden onto the defendant. Notably, while the US continues to use presumptions of fault in collision cases, Article 6 of the 1910 Brussels Collision Convention abolishes all presumptions of fault in cases of collision. Although at least 85 jurisdictions have ratified the convention, the US is not yet a signatory. These presumptions continue to be applied after the Supreme Court replaced admiralty’s rule of divided damages with comparative fault. Allied Chem. Corp. v Hess Tankship Co. of Delaware, 661 F.2d 1044 (5th Cir. 1981) (“This rule still floats, in the wake of U.S. v. Reliable Transfer, supra, which only The Marine Insurer Claims Edition | September 2021
overruled The Pennsylvania on the point of allocating comparative fault.”) These may seem like a judicial relic, however, they continue to be applied by courts throughout the US. As such, it is essential to have an understanding of their operation.
THE PENNSYLVANIA RULE The so-called “Pennsylvania Rule” was established by the US Supreme Court in 1873 when it decided The Pennsylvania. 86 U.S. 125 (1873). This rule is the most commonly applied maritime presumption. It operates when a vessel involved in a collision violates a statutory rule intended to prevent collisions. Once a court has determined that a vessel has violated a statute, the presumption shifts the burden of persuasion as to causation from the claimant to the violating vessel. The Court explained its reasoning in the following paragraph: [A] ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case, the
