Accidents on the Water: Proving Liability and Damages
Just like accidents on land, you need two things to prove your case when the accident occurs on the water, liability and damages. However, the method of finding these (and their many subparts) is significantly different when vessels collide with either another vessel (collision) or when they collide with a stationary object (allision).
Liability: Who is at fault in an accident?
Liability deals with who is at fault in the accident. It also deals with what is both the actual and proximate cause of the accident and how you prove it. Fault in maritime cases can arise from the following:
- Negligence on the part of the navigators due to lack of proper care or skill;
- Violation of the rules of the road or the applicable rules of navigation laid down by or under the authority of a statute (the US Coast Guard has these rules on their website); or
- Failure to comply with local navigational customs or usage.
What is an inevitable accident?
The Court in The Jumna described an inevitable accident as one that “usually happens when it is not possible to prevent it by the exercise of due care, caution and nautical skill. It is generally, though not invariably, attributed to an act of God, as where a tremendous tempest arises…. Such accidents usually occur when safe navigation is rendered impossible from causes which no human foresight can prevent; when the forces of nature burst forth unforeseen and uncontrollable fury so that man is helpless, and the stoutest ship and the most experienced mariner are at the mercy of the winds and waves.”
This Court went onto describe that where no negligence can be found on any vessel party to the collision, there is a presumption of no fault and that both were navigating in a lawful manner. If this is found, the accident is said to be inevitable and both parties must bear their own losses. In layman’s terms, just because there is an accident does not mean that somebody is at fault. For a court to declare that the accident was inevitable there must be NO evidence of ANY sort of duty that was breached.
What is error in extremis?
In The Blue Jacket, the US Supreme Court has defined the doctrine of in extremis as “where one ship has, by wrong manoeuvres, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been manoeuvred with perfect skill and presence of mind.”
This type of situation usually occurs when ships are under the power of a tug. For example, when a tug is towing a larger ship into port and the tug does something wrong that leaves the larger ship in peril. If that larger ship maneuvers and collides with another ship, they are not responsible because of the error in extremis doctrine.
Allocation of Fault – The Modern Rule
Until 1975, maritime law divided damages in marine collision cases equally when both vessels were found to be at least partially at fault. This meant that even if a jury found that one vessel was 95% at fault and the other vessel was 5% at fault, they would combine the damages of both vessels and divide it equally amongst the parties. However, the U.S. Supreme Court changed this rule in United States v. Reliable Transfer Co., Inc.. This case stated that “when two or more parties have contributed by their fault to cause property damages in a maritime collision or stranding, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault, and that liability for such damages is to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault.” What this is basically stating is that each party to a collision is responsible to pay for the damage that they contributed to. For example, if one party is 75% at fault for the damages of both vessels, they will pay for 75% of those damages. The aforementioned case effectively abandoned the “divided damages” rule and adopted the more familiar “comparative fault” approach.
Violation of Safety Standards: The Pennsylvania Rule
The Pennsylvania Rule came about from the U.S. Supreme Court case The Pennsylvania. The Rule is a shift in the burden of proof for causation that a party has when there has been a collision. If the collision was caused by a violation of a safety regulation designed to protect against collisions (i.e., sounding when there is heavy fog), then there is a presumption fault on the violating party. I use this rule quite often in my personal watercraft collision cases. The U.S. Coast Guard has created navigational rules that all boaters are required to know. When I am deposing defendants in these cases, I have them read certain rules and ask them if they understand what the rule entails. I then ask them if they followed that rule at the time of the accident. Once they admit to breaking the rule, the Pennsylvania Rule kicks in and fault is no longer an issue in the case.
How to prove there are damages in a boating accident
When a vessel involved in a collision is a total loss, the damages include the market value of the vessel at the time of the loss, with pending freight, and pollution cleanup, salvage, wreck removal, and other incidental costs proximately resulting from the loss. If the vessel is less than a total loss, the damages include the cost of repairs, detention (loss of earnings for the period the vessel is out of service), and incidental costs, such as wharfage, pilotage and salvage costs. Of course, personal injury damages are also included.
The law on the water is different than that on land. The LaBovick Law Group has a team of attorneys that concentrate their practice on maritime matters. If you have been involved in a maritime accident, call today for a free consultation.
Images courtesy of freedigitalphotos.net by supertrooper and Stuart Miles