Vessel Moored in Narrow Waterway Found 70 Percent At Fault When Struck by a Passing Vessel

November 25, 2013

–The “Pennsylvania Rule” Applied–

In common law tort cases, contributory negligence of the plaintiff, no matter how small, can bar any recovery from the party who may have been more negligent in causing the loss. In contrast, maritime law will apportion the loss among the parties in proportion to the percentage of negligence the court attributes to each party. Moreover, the burden of proof may change where a party is in violation of a statutory rule established by law.

The Fifth Circuit Court of Appeals approved a 70 percent at fault finding against a dredge that was moored in a narrow channel of the Intercoastal Waterway when it was struck by a passing vessel. Usually a moored vessel would not be found negligent at all in such an “allision.” If both vessels were moving, it would have been called a “collision.”

The dredge was moored on the bank of a narrow channel in violation of the Island Navigation Rule 9, which prohibits such mooring. Furthermore, violation of an Inland rule triggered another rule that the U.S. Supreme Court laid down in The Pennsylvania in 1873 that shifted the burden of proving causation to the party in violation of a statutory rule.

The district court apportioned 70 percent of the liability to the stationary dredge and the Fifth Circuit affirmed. In The Pennsylvania, the U.S. Supreme Court established a harsh burden shifting presumption for causation when a vessel “at the time of a collision is in actual violation of a statutory rule intended to prevent collisions.” The violating ship must show 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. The rule creates a presumption that one who violates a clear statutory regulation will be deemed responsible.

The presumption is rebuttable, but it is an uphill fight, as demonstrated by the Fifth Circuit decision in Mike Hooks Dredging Company v. Marquette Transportation Gulf Inland, LLC.

This article is from Montgomery McCracken’s Fall/Winter 2013 Maritime and Transportation Newsletter.