Thursday, January 10, 2013




Public domain Image of a catamaran High Speed Ferry somewhat larger than the SEA STREAK WALL STREET

 Yesterday we carried a "News Alert" linking our readers to yet another New York ferry boat accident. In admiralty law unintentional contact between a vessel underway and a fixed object like a bridge pier is called an allision as distinguished from a collision, defined as unintended contact between two vessels. The public in general and the typical land lubber journalists who serve the major net works and wire services seem to have more patience with investigators looking into collisions than allisions. There is indeed a presumption in admiralty law in the case of an allision that the vessel and her navigating officer on watch are at fault. What the non mariner journalists often is unaware of is that this is a rebuttalable presumption. ( Legal beagles may read all about it in the American Admiralty Bureau's Commentator Volume 1, Comment 6 [AAB COM. NO. 6, VOL. 1 (1994) ISBN 1-879778-27-0] which we are busy revising and publishing in our AUTHORITATIVE LITERATURE SECTION, unfortunately as this story breaks we are only on Comment No.4 , but we will no doubt have No. 6 posted before the official investigation into this event is complete ). Those of you incredibly astute , nautically wise souls who have been regular readers since January of 2012 when we first started, will remember our coverage of the COSTA CORDOVIA cruise ship grounding, and probably already assume (correctly) that we will not rush to judgement on this latest New York Ferry incident.

 One of our number in the parent organization AAIS is a former unlimited tonnage Master and Pilot with actual ferry operational experience and formal training as a marine investigator with over a 1,000 cases under his belt. He is also a published author on allisions and the successful rebuttal arguments against the normal presumption. Having said that there are a number of things about this particular accident that do lead him to a report-able tentative conclusion. From what is know of the facts in this case the operator or pilot may or may not have some responsibility for the accident, causation could have been from either operator negligence or mechanical failure. In either case the usual alternatively responsible party looks relatively clear of responsibility. However keep always in mind that our investigator talks in terms of "responsibility" in the causation and moral sense. Responsibility and liability under the law can be two quite different things. 

 In an allision the lion's share of responsibility by legal presumption falls on the ship. However responsibility may be apportioned to the object allided with itself if it fails any of these tests outlined in the cited  American Admiralty Bureau "Comment". 

1.An allision object should be properly charted and reported.

2. An allision object in the navigable waters must be properly permitted

3. An allision object must be maintained in compliance with all conditions of its permit requirements.

4. An allision object must be adequately marked (light and sound signals where prescribed).

 This being a daylight accident while entering a ferry slip in regular usage it is almost inconceivable that the ferry slip will not pass the tests for an allision object to escape responsibility. However readers must keep in mind that legal liability may, or may not be imposed on the ferry slip owner based on other considerations that may be spelled out in contracts between ferry vessel owner operators, insurance companies and others.
So our investigator/analyst is fairly certain already that the focus on the investigation will be operator competency and performance versus mechanical condition of the vessel. Which ever way that cookie crumbles again legal liability will depend on issues that probably won't be in direct proportion to ordinary responsibility. If the bulk of responsibility is pinned on the pilot on watch at the time, the vessel owner probably can not escape legal liability in this case due to being a ~"common carrier". As the owner of a ferry service that our investigator once worked for once said:

 "We are common carriers, our iron clad obligation is to disembark each and every passenger in the exact replication of their health as they were in when they embarked, no matter what."

 This particular ship owner was both a licensed and experience ship's master and a prominent admiralty lawyer. The above quote was simply his Captains vocabulary articulating a concept that his lawyer's vocabulary would call a "standard of absolute liability". Which reminds me of something my old torts professor said about personal injury torts.

 "You need three actors to have a tort case. First you need a tort feasor , this is the guy who did the hurtful deed. Then you need a tort victim , this is the guy who got hurt as a result of the hurtful deed. Finally you need a deep pocket, this is the party who ultimately will have to pay the tort victim his damages. If any one of these three actors is missing, but most importantly the deep pocket, you have no case." C.Mark ("take the fifth and call me in the morning") Summers.

So you can see that no matter what you read in the papers or hear on NBC, CBS, ABC, FOX, CNN et al. we here at AAB will be much slower and require more facts before making pronouncements. But we are covering this story and if you care about the story and want real facts don't assume anything you get from our big boy general news service rivals is accurate. Do you want to get this kind of news from a bunch of old salty sea dogs and crusty maritime lawyer types or those pretty boys and girls on the evening news? Its up to you, don't rush to judgement or stop taking the ferry to work just yet..

No comments:

Post a Comment