WHAT YOU NEED TO KNOW ABOUT ALLISIONS
(Published February 2004)
It is common knowledge that a maritime collision involves two moving vessels. Despite the more frequent occurrence, many are unaware that the term "allision" applies when a vessel contacts a stationary object, such as a pier, dock, bridge, shore crane, and even stationary buoys. Protective fenders on vessels and stationary objects susceptible to allisions tend to minimize the damage sustained. However, damages arising from allisions can be catastrophic. A recent example occurred in New York City when the Staten Island Ferry allided with its pier and pilings resulting in the death of 10 passengers and injuries to dozens more - not to mention the damage to the ferry and pier.
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| On December 14, 1996 the 735-foot freighter BRIGHT FIELD slammed into the Riverwalk Mall in New Orleans, destroying shops, the wharf, a Hilton Hotel and private residences. |
Other real examples include: a vessel alliding at a pier while docking, cutting open its fuel tanks on a protrusion causing an oil spill and millions of dollars in environmental clean-up and natural resource damages; a piloted cargo vessel making a late turn into a pier causing the bulbous bow to allide with and sweep under the pier and knock down cement pilings like bowling pins; an inland river tug pushing a cut of barges losing control and alliding with a lock and dam structure; a vessel attempting to avoid another taking evasive action and alliding with a nearby wharf; a tug and barge wandering off course in the fog and alliding with a railroad bridge misaligning the tracks minutes before a passenger train arrives and derails the cars into the swamp below.
The legal cases are virtually awash with examples of costly allisions. We present this article as a basic outline of the issues faced by vessel owners involved in allisions.
Investigating Allision Incidents
As with any maritime casualty, there are important steps a vessel owner should take when informed that an allision has occurred. The first step, of course, is to notify the insurer. Next, immediately initiate an on site investigation. For large casualties your investigative team should include an attorney, surveyor, structural engineer (if property damage is extensive), navigation expert and your experienced claims handler. If the incident meets certain criteria, e.g., involving serious personal injury or property damage, the Coast Guard must be notified verbally or in writing, e.g., CG 2692 form, as the case may be. Do not assume that you must immediately involve the Coast Guard in the investigation, and consult your attorney as to the preparation and filing of reports and making witnesses available.
Generally, the thoroughness of the Coast Guard investigation is directly proportional to the severity of the injuries and/or the extent of property damage. In serious marine casualties, the Coast Guard will take statements of involved crewmembers and drug test the Master and/or Pilot. (For an excellent overview of Coast Guard reporting requirements and investigation procedures, see Janssen, Kerr and Keller, Marine Casualty Reporting and Investigation 24 Tul. Mar. L.J.167). While the conclusions of Coast Guard Investigation Reports are not admissible in court, Id., statements and other factual information used in the report are fair game for production under the Freedom of Information Act, 5 U.S.C. Section 552, or during discovery in litigation. Consequently, it is advised to have an experienced attorney present at the scene as soon as possible. The attorney can also advise as to the what further action to take subsequent to an allision incident, such as the need to inform other government agencies whose jurisdiction may be invoked by the incident.
The Coast Guard requires that vessels involved in "marine casualties" must "retain such voyage records as are maintained by the vessel. . . . " 46 C.F.R. § 4.05-15. Generally, such records should be retained if the casualty involves serious personal injury, death or extensive property or environmental damage, or if the vessel's integrity has been compromised. See e.g., 46 C.F.R. § 4.03 et seq.
Accordingly, vessel owners should have standing instructions to crew to immediately gather pertinent documentation following an allision, including: relevant Deck and/or Engineer Log book entries - both rough and smooth; printoutsor other recorded data from the ship's course recorder, GPS or ECDIS, and other written logs or evidence regarding navigation at the time of the incident; ship's bridge and engine room bell books or automatic logger tapes, pilot card, crew list, copies of relevant charts and documents evidencing relevant vessel-to-shore radio transmissions and correspondence, the vessel's particulars, and all other documents which might be used to determine the cause of the incident. Your investigative team will be able to recreate the incident based on the information contained in the documents mentioned above. In this regard, the importance of photographic evidence cannot be overstated. Finally, any vessel damage and repair costs should be meticulously documented.
Less urgent, but important to your counsel, a vessel owner should identify and review any charter parties, terminal leases and/or permits, tariffs or other contracts that might govern or effect the rights and liabilities of the parties involved. Of course, the extent to which a vessel owner should utilize resources to gather information is a function of the severity of the incident. Suffice to say, the more documentation made available to your investigation team, the better opportunity for understanding the cause of the incident and preparing for claims resolution or litigation.
Handling Allision Claims
Procedural Issues
The Admiralty Extension Act operates to extend admiralty jurisdiction to cover "all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S.C. §740. Unless the allision is between a vessel and another anchored or moored vessel, the AEA provides a court with "subject matter" jurisdiction over litigation arising form allisions. The former case invokes admiralty jurisdiction without need for the AEA. See 28 U.S.C. §1333 ("The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.").
The federal courts, as a whole, provide the most suitable forum for obtaining consistent rulings in allision cases. Litigation may, in certain circumstances, ensue in the state courts pursuant to the "Savings to Suitors" clause of the United States Constitution. See Id. Whatever the forum, the general maritime law as established by the federal courts governs. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996)( "With admiralty jurisdiction . . . comes the application of substantive admiralty law") (quoting East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864 (1986)).
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| An interior view of the Staten Island Ferry after it allided with a pier in New York City on October 16, 2003. |
Often, a government entity is involved in litigation arising from allisions. For example, a municipality may have a terminal lease with the vessel or the pier operator/lessee, or employ the pilot aboard the vessel at the time of the incident. Further, the United States owns and operates locks and dams on the inland rivers through its United States Army Corps of Engineers, as well as numerous other objects in navigable waters such as buoys. Litigation against government entities requires knowledge of and strict compliance with administrative procedures prior to bringing suit. The AEA has an administrative claim requirement for claims against the United States. See e.g., California State Torts Claims Act, Gov. Code §§810 et seq. (plaintiff must file administrative claim within 6 months of the incident)
Under the archaic admiralty law, both the vessel and its owner are potentially liable, therefore the vessel can be sued in rem. Consequently, the effect of a potential vessel arrest and the feasibility of providing security, such as a bond or letter of undertaking, must also be considered. Where the damages claimed against the vessel has the potential to exceed its value, consideration should also be given to initiating a suit in a federal district court pursuant to the Limitation of Liability Act, 46 U.S.C. 183(a). A Petition filed pursuant to that Act operates to consolidate litigation, at least initially, in one federal forum, and provides the vessel owner an opportunity to limit his damages to an amount based on the value of the vessel after the casualty and, for personal injuries, an amount based on a gross tonnage calculation. The Act does not apply to claims brought by the federal government under such statutes as the Oil Pollution Act of 1990 and the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et seq. Generally, the only defense to such claims is a finding of sole fault on the government or in contribution against a third party. Apart from liability to the United States government pursuant to statute, the mere occurrence of an allision does not serve to effectively impart liability on the vessel.
Liability Issues
Liability for an allision is, however, determined by a finding of fault by the application of legal presumptions. As in any civil litigation, the party seeking damages in an allision case has the burden to prove liability by a preponderance of the evidence. Liability usually stems from determination of negligent navigation by the master and crew, i.e., deviation from generally accepted concepts of prudent seamanship and reasonable care or violations of statutory rules and/or regulations that constitutes a material cause or contributing factor in the incident. The legal principles of proximate and superceding cause also apply in allision cases to admiralty to determine liability from the vessel. Exxon v. Sofec, Inc., 517 U.S. 830 (1996). Wharfinger liability may also come into play.
It is well-established maritime law that a moving vessel that allides with a stationary, visible object is presumed to be at fault. The presumption is referred to as the " Oregon" rule named after a United States Supreme Court decision of The OREGON, 158 U.S. 186 (1895). This presumption does not apply if the vessel owner can show that the allision was caused by an ÒAct of God.Ó Once established, the Oregon rule presumption makes out a prima facie case of negligence against the vessel. The burden then shifts to the vessel to prove it is without fault, or that the non-moving object caused or contributed to the allision.
Another well established rebuttable presumption applied in allision cases arises if a party involved in an allision violated a statutory or regulatory rule intended to prevent such incidents. If so, the burden shifts to the violating party to show that its statutory fault was not a contributing cause of the accident. This presumption, called the "Pennsylvania" rule, arose from a United States Supreme Court case in The PENNSYLVANIA, 86 U.S. 125 (1873). The Pennsylvania rule presumption may be rebutted by a showing that the violation was not a contributing cause of the injury; i.e. the other party is solely responsible for the accident. If the case where the non-moving object has violated a statute or rule, e.g. failure to light an obstruction or pier as required, the Pennsylvania rule operates to shift the presumption otherwise applicable to the vessel pursuant to the Oregon rule back to the stationary object which then has the burden to prove that its failure to comply with the statute or rule could not have contributed to the injury. Although there are potentially many statutes, rules and/or regulations which might invoke the Pennsylvania Rule, the Inland Navigational Rules, which codify well established steering and sailing rules and regulations governing navigation on U.S. inland waters are usually referred to in such cases. See 33 U.S.C. §2001-20038. Whether or not the non-moving object can be found in violation to transfer the burden of proof from the vessel is extremely fact specific and requires investigation and analysis of all the potentially applicable rules and regulations.
Finally, another legal presumption applicable in maritime cases is the doctrine of res ipsa loquitur (translated: "the thing speaks for itself"). Res ipsa loquitur creates a rebuttable presumption of negligence in certain instances where: 1) the injured party was without fault; 2) the instrumentality causing the injury was under the exclusive control of the defendant; and 3) the mishap is of the type that ordinarily does not occur in the absence of negligence. This rule generally works against the vessel owner.
As shown above, the presumptions of liability against a vessel that strikes a stationary object are difficult, but not impossible to overcome. Consequently, a vessel owner should leave no stone unturned in the pursuit of evidence to support statutory or sole fault liability on the non- moving object, or to prove third party liability. Further hurdles are raised if the litigation involves government entities or binding contract terms or tariffs which work to apportion liability almost without fault. For example, pilotage tariffs and terminal leases almost always have indemnity provisions that protect them from liability for anything but sole fault or gross negligence. As a result, damage issues become very important in allision cases.
Damage Issues
Whether damages to property arising from an allision sound in tort, contract or statute, the general rule is that they are compensatory. The damages available for personal injuries are beyond the scope of the article, but, in most circumstances, include an amount for compensatory as well as certain non-economic damages. There also may be personal injury claims based on the "zone of danger" theory.
The basic principle governing compensatory damages is to place the injured person as nearly as possible in the condition he would have occupied had the wrong not occurred. Fair market value of the property lost, or if no such valuation is ascertainable, then the reasonable and documented cost of repairs or replacement constitutes the measure of damages. Given the nature of property damaged in allisions, e.g., piers, and other waterfront structures, there often is no established "market" value. Consequently, the vessel owner should become involved in the supervision of the repair process to the extent possible, and as soon as possible.
Fair and reasonable are the watchwords for repair costs. The vessel owner is liable only for those repairs that reinstate the property to its former condition - and nothing more. Thus, a pier owner should not benefit by constructing a newer, more modern pier at the expense of the vessel owner. If "new for old" repairs are undertaken, and the property's useful life is extended due to the repairs, then the vessel owner should demand a deduction for extending the depreciated life of the structure. In order to save on interest and potential delay claims, the vessel owner should encourage a quick repair schedule. Once the repairs are complete, invoices for repair submitted for payment should be scrutinized to ensure compliance with general construction and accounting standards.
Conclusion
Although a common occurrence, allisions can be costly. A vessel owner involved in an allision should take measures not only to prevent them, but to establish procedures to be followed subsequent to an allision. Allision claims potentially invoke almost every aspect of maritime legal practice. Consequently, handling such claims requires the use of an experienced investigation, claims handling and litigation team. Immediate steps should be taken to gather all pertinent documents from the vessel, as well as documents related to damages and repairs. Special attention should be given to the legal and/or relationships of the parties, and the applicable law regarding presumptions of liability. Repair costs should be reviewed for error, and damage claims adjusted accordingly. As with most situations, preparation in advance for a potential allision will pay large dividends in the end.
