Admiralty assumptions

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 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

“The so-called “Pennsylvania Rule” was

established by the United States 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.’’

burden rests on the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.

This rule does not establish fault, but is only limited to causation, and while the burden is strict, it is not insurmountable. See Superior Const. Co. v Brock, 445 F.3d 1334 (11th Cir. 2006) (quoting Compania De Maderas De Caibarien, S. A. v. The Queenston Heights, 220 F.2d 120 (5th Cir. 1955)). The Court intended to shift the burden of proving of causation on the theory that if a statutory violation is proven, the violating vessel will have a greater knowledge of the facts and circumstances involved.

Thus, it should be required to adduce the facts relating to causation rather than the innocent claimant. The rule applies to allisions, collisions of vessels underway, and collisions between a vessel and a stationary object. Candies Towing Co. v M/V B & C Eserman, 673 F.2d 91 (5th Cir. 1982) It is important to note that although the Court spoke strictly of statutory violations, the rule also applies to regulatory violations. See Belden v. Chase, 150 US 674 (1893). The rule requires the following conditions: (1) proof by a preponderance of the evidence of a violation of a statute or regulation that imposes a mandatory duty; (2) the statute or regulation must involve marine safety or navigation; and, (3) the injury suffered must be of a nature that the statute or regulation intended to prevent.

Courts frequently apply this rule to violations of the navigational rules. See Allied Chem. Corp. v Hess Tankship Co. of Delaware, 661 F.2d 1044 (5th Cir. 1981).

A violating vessel can rebut the Pennsylvania Rule by showing the folllowing: (1) that the statutory violation was not a cause of the incident; (2) that the fault was caused by an error in extremis as the vessel was placed in a situation, through no fault of her own, where a collision was imminent; or, (3) the violation could not have been the proximate cause of the incident.

THE OREGON RULE

The Oregon Rule is a presumption of fault against a moving vessel. It applies when a vessel under its own power allides with a stationary vessel or object. The rule places the burden of proving the absence of fault or causation with the moving vessel.

The Supreme Court articulated this rule in its 1895 holding in The Oregon. 158 US 186 (1895). A moving vessel may rebut the burden by showing that it was either without fault, that the allision resulted from the fault of the stationary object, or was the result of an inevitable accident. Carr v Hermosa Amusement Corp., 137 F.2d 983 (9th Cir. 1943). The moving vessel has an onerous burden to overcome, as “[s]uch accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way.” Bunge Corp. v M/V Furness Bridge, 558 F.2d 790, 795 (5th Cir. 1977).

THE LOUISIANA RULE

Similar to the Oregon Rule, the Louisiana Rule dictates that when an unmoored, drifting vessel allides with a stationary vessel or object, the drifting vessel is presumptively at fault. The Louisiana, 70 U.S. 164 (1865).

The presumption under the Louisiana Rule may be rebutted in the following instances: (1) the allision was the fault of the stationary object; (2) the moving vessel acted with reasonable care; or, (3) the allision was an unavoidable accident. Fischer v S/Y NERAIDA, 508 F.3d 586 (11th Cir. 2007).

Crucial to rebutting the Louisiana Rule is the “act of God” defense. See id. at 595. Courts apply this defense to superseding causation, not negligence. Thus, a vessel owner may be found negligent yet exonerated from liability if an act of God would have produced some damage, irrespective of negligence. Id. These accidents are “unavoidable” or “inevitable.”