Prudence versus seaworthiness
The bridges of most modern ships are filled with all sorts of electronic gear designed to make navigation safer and simpler. But what if the ship's crew doesn't use them or even know how to use them?
The U.S. Court of Appeals for the Fifth Circuit discussed these questions in a recent ruling in which it ruled that failure to train a master on a fishing boat on how to properly use electronic navigation equipment does not make the vessel owner fully liable for an accident in which its vessel struck an offshore oil rig. Nor was the ship made unseaworthy by such failure. (Omega Protein v. Samson Contour Energy, No. 07-30725, 5th Cir., Nov. 10, 2008)
The case involved a 2004 accident in which a 396-ton boat used by Omega Protein Inc. to fish and process menhaden in the Gulf of Mexico struck an oil platform owned by Samson Contour Energy.
Omega's boat Gulf Shore, was equipped with navigational aids, including an autopilot, a radar with an anti-collision alarm, and a navigational chart system.
Luther Stewart had served as a captain for Omega for 20 accident-free years, but the company never trained him on how to use the radar nor did it have a policy requiring use of the anti-collision alarm.
During the middle of the night, as the ship was heading to the fishing grounds, Stewart was told by the chief engineer that a component of the vessel's refrigeration system had failed. Stewart scanned the horizon, did not see any obstacles, and then turned on the wheelhouse lights to examine the part and made a couple of cell phone calls to see if Omega might be able to arrange an airdrop of a part. About 10-15 minutes after he had turned on the lights, the boat struck Samson's platform.
Both Stewart and the captain of another Omega boat that had passed the platform earlier in the day testified the platform lacked any functioning lights or fog horn. But an employee of Baker Energy, which maintained the platform, testified that a test conducted just hours after the accident found the lights worked normally. An employee from an independent contractor also conducted a test and found its lights functional.
At trial, the district court ruled Omega had sufficiently proved the platform did not have operational lights and discredited testimony adduced by Samson, noting Baker Energy had not kept monthly maintenance reports for the platform. It found Samson committed a statutory violation by failing to have operable lights on the platform.
Consequently, the vessel was not presumed to be at fault for the allision (vessel contact with a fixed object), and the burden remained on Samson to prove negligence. The court found Samson carried that burden because Stewart had violated the International Regulations for Preventing Collisions at Sea by failing to maintain a proper lookout. It noted that by turning on the light in the wheelhouse he had greatly diminished his night vision.
Had Omega exercised reasonable care in selecting a qualified and competent master? The district court ruled it had. It noted Steward had all of the requisite licenses to operate the boat and a clean record for 20 years. The trial court found that Omega lacked privity or knowledge of his negligence, and was therefore entitled to limit its liability to the value of the vessel and pending freight. In light of these findings, the court apportioned fault assigning damages equally to Omega and Samson.
A request by Samson for a new trial, or alteration of the verdict, failed and it appealed.
The Fifth Circuit said that in a maritime limitation case, questions of fault, including determinations of negligence and causation, are factual issues, and may not be set aside on appeal unless clearly erroneous. That was not the case here.
|'This may not be the most prudent way to run a ship, but the 'privity or knowledge' standard does not require a vessel owner to take every possible precaution.'|
|Fifth Circuit Court
Despite finding the platform at fault, the district court held Samson had proven negligence by Stewart who was a contributing cause because he failed to maintain a proper lookout or effectively use the radar. But Samson argued on appeal that it was not the master's mistake of navigation that led to the accident but 'Omega's hands-off approach to management of the Gulf Shore, particularly the training and supervision of Stewart ' '
Samson argued that because the electronic navigational chart and radar did not show its platform or the cluster of 20 platforms in which it stood, there was evidence that the boat's navigational aids were defective or outdated.
But the circuit rejected this argument, saying the evidence did not compel the conclusion that outdated or defective navigational aids were a factor. It also rejected Samson's argument that damages were improperly apportioned, saying the lower court's decision was not clearly erroneous.
It agreed that Samson had demonstrated that Omega did not do everything within its power to ensure that Stewart knew the full capabilities of the vessel's radar, nor did it have a protocol in place dictating when features such as the anti-collision alarm were to be used.
'This may not be the most prudent way to run a ship,' the court said, 'but the 'privity or knowledge' standard does not require a vessel owner to take every possible precaution – it only obliges the owner to select a competent master and remedy deficiencies which he can discover through reasonable diligence.'
'The district court found that Omega selected a competent master and rejected the contention that the vessel was unseaworthy. Those findings are supported by the record,' the circuit said, upholding the trial court's decision.
Rule B attachments explode
We've written in this column several times about the popularity of Rule B maritime attachment actions in the Southern District of New York, which allow parties in maritime disputes to attach electronic funds transfers moving through banks based in lower Manhattan.
The law firm Blank Rome said the number of new Rule B filings have exploded in recent months – from about 10 percent of all new cases filed in the Southern District to 25 percent in October (or more than 250 in a month) to 30 percent in November.
'These are astonishing numbers,' said Blank Rome, which added the trend reflects the increase in charter disputes as the dry bulk shipping market crashed.