The Admiralty Law Blog

Posts Tagged ‘maritime law’

News: Two Missing After Boat-Barge Collide (NECN)

The National Transportation Safety Board is investigating the collision of a Ride the Ducks tour boat and a city-owned barge that injured eight people and killed two.  The incident occurred on the Delaware River near Philadelphia, Pennsylvania, on July 8, 2010.

According to the Associated Press, The Caribbean Sea, a tugboat owned by K-Sea Transportation Partners of East Brunswick, New Jersey, was directing the barge downriver on Wednesday afternoon.  At the same time, the Duck boat, carrying thirty-five passengers and two crew members, sat idly in the water, due to an engine fire, for about ten minutes before the collision.  All but two passengers survived.  The Coast Guard and NTSB are investigating the crews’ conduct before and after the collision, particularly, the Duck boat’s inspection history and the apparent mechanical problems.

CNN News Wire reported that searchers located the sunken boat about fifty feet below the river’s surface.  The investigation will continue in order to discover the reason for this incident; various causes should be explored including the failure of Ride the Ducks tours to provide a seaworthy vessel and the negligence of the K-Sea tugboat/barge operators.

. . . Various Navigational “Rules of the Road” Implicated.

Although the NTSB and media sources have focused primarily on the seaworthiness of the Duck boat (citing possible lack of maintenance, etc.), rare is the case that two vessels collide and there is not a reasonable argument that both vessels were at fault.

Assuming the Duck boat was disabled and adrift for about ten minutes prior to the collision (as reported), it seems likely that the barge/tugboat, operated by K-Sea Transportation Partners, violated several Inland Rules of Navigation intended to prevent collisions, including, among others:

• Rule 5 – failure to post/maintain a proper lookout (33 U.S.C. §2005)
• Rule 7 – failure to use all means available to avoid the risk of collision (33 U.S.C. §2007)
• Rule 8 – failure to take positive action to avoid collision, such as altering course and speed  (33 U.S.C. §2008)
• Rule 6 – failure to proceed at a safe speed (33 U.S.C. §2006)
• Rule 2 – failure to use good seamanship (33 U.S.C. §2002)
• Rule 18 – failure to Rule 1 – failure to comply with the above Rules of the Road (33 U.S.C. §2001)

The U.S. Coast Guard will be conducting an extensive investigation, which I assume will include a visibility analysis, to determine how the pilot/operator of the K-Sea Towing tugboat and barge (“The Resource”), failed to avoid colliding with the disabled Duck boat.

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On June 25, 2009, in the case of Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (2009), the U.S. Supreme Court said “Yes”. In so holding, the Court resolved a conflict between the Eleventh Circuit Court of Appeals (which held punitive damages were available) and the Second, Third, Fifth and Ninth Circuits which found that they were not.

In Atlantic Sounding, Edgar Townsend was employed as a seaman aboard Atlantic Sounding’s Motor Tug Thomas when he injured his arm after falling on the deck. Atlantic Sounding refused to provide maintenance and cure even though Townsend was injured while in the service of a vessel. Townsend filed suit under the Jones Act and general maritime law alleging negligence, unseaworthiness and arbitrary and willful failure to pay maintenance, among others.

In its reasoning, the Court first acknowledged that punitive damages have long been available at common law for willful, wanton or outrageous conduct, and were first extended to claims under federal maritime law in 1893). See Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 108, 13 S.Ct. 261, 37 L.Ed. 97 (1893). The Court observed that the maintenance and cure obligation dates back centuries as an aspect of general maritime law, and the failure of a seaman’s employer to provide adequate medical care was the basis for awarding punitive damages in cases decided in the 1800’s. In fact, the Court registered its agreement with such decisions and has found that in addition to wages, “maintenance” includes food and lodging at the ship’s expense, and “cure” refers to medical treatment. Lewis v. Lewis & Clark Marine, Inc., 531 U. S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). The Court noted that an owner’s failure to provide proper medical care for seamen has provided lower courts the impetus to award damages that appear to contain at least some punitive element.

The Court then turned its attention to and rejected arguments by Atlantic Soundings that the decision in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), which stated that damages for loss of society may not be recovered on a general maritime law wrongful death claim, was controlling. The Court distinguished Miles since that case did not address maintenance and cure actions in general, or the availability of punitive damages in such actions. Instead, the Court in Miles only considered whether the general maritime law should provide a cause of action for wrongful death based on unseaworthiness.

The Court also acknowledged that Congress has enacted no legislation precluding an award of punitive damages to a seaman whose employer willfully fails to pay maintenance and cure. What’s more, the Court has consistently found that the Jones Act preserves common-law causes of action such as maintenance and cure (The Arizona v. Anelich, 298 U. S. 110, 56 S.Ct. 707, 80 L.Ed. 1075 (1936)) and case law from the Supreme Court supports the view that punitive damages awards continue to remain available in maintenance and cure actions. See, Vaughan v. Atkinson, 369 U. S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)

The Court concluded that because punitive damages have long been an accepted remedy under general maritime law, and because neither the holding in Miles, nor the Jones Act altered this understanding, punitive damages for the willful and wanton disregard of the maintenance and cure obligation remain available as a matter of general maritime law.

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