"What Your Lawyer Will Tell You After a Barge Breakaway"

I. Duty of Vessel Owner to Furnish a Seaworthy Vessel

Under the general maritime law, a vessel owner has a duty to furnish a seaworthy vessel. A seaworthy vessel is one which is reasonably fit to carry the cargo it has undertaken to transport. While this duty is absolute, 'the standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service.'

II. Duty of Towboat to Initially Properly Moor Barges

Initially, a towboat operator has a duty to properly moor the barges it delivers, and breach of that duty imposes liability on the party delivering a vessel to the fleeter. When a towboat moors an unmanned barge or barges and those barges drift away from their moorings within a short time thereafter, there is a presumption of fault against the mooring vessel which shifts the burden of proof to the mooring vessel to show that it exercised due care.

III. Duty of Terminal Operator to Exercise Reasonable Care Under the Circumstances, That Is, To Refrain From Being Negligent

A terminal operator's duty to exercise reasonable care includes periodically inspecting barges in its custody. The need for inspection increases with the length of time the barge is docked. The fact that a terminal lacks the resources to watch its fleet does not excuse it from liability. While it may be customary for many landings and fleets not to employ watchmen 24 hours per day, seven days a week, it is a well known principle in tort law - including maritime tort law - that "compliance with custom is no defense."

IV. The Owner or Operator of a Drifting Vessel Which Strikes Another Moored Vessel or Object is Presumed to be Negligent

In the barge breakaway context, a frequently-invoked presumption, dating to a U.S. Supreme Court case decided in 1866, called The Louisiana, holds that a "vessel which drifts into collision is presumed to be at fault until the contrary is made to appear." This presumption is sufficient for a plaintiff to make out a case of negligence against the moving vessel. To rebut this presumption of liability, the owner of the drifting vessel must prove that it was not negligent or that the mishap was the result of an unavoidable or inevitable accident or an Act of God.

V. The Legal Doctrine of Bailment Can Create a Presumption of Negligence for Failure of the Terminal or Fleeter to Return the Barges in the Same Condition They Were In When Delivered

The delivery of a barge to a river fleeting or terminal operation can create a bailment. Generally, a bailment arises when a terminal accepts exclusive custody and control over a barge. The operator of a barge fleeting facility, as a bailee, has a duty to exercise reasonable care and maritime skill in the care of barges entrusted to it. Should the barge be damaged while in the bailee's custody, the bailee must show that a barge’s breaking away was not due to its sole negligence and that it exercised reasonable care during the term of the bailment.

If the terminal owner chooses to defend against the presumption of its negligence on the basis that a breakaway was the result of an Act of God, it must prove that the alleged Act of God was "a natural force of such inevitability and irresistibleness that man cannot cope with it, either to predict, forestall it or control it when it arrives." A federal appeals court recently held that Hurricane Opal, which packed winds of between 85 and 103.5 miles per hour, did not constitute a sufficient "Act of God" for the defendant to escape liability.

VI. Terminal Operator May Be Liable for a Breakaway For Breach of the ‘Warranty of Workmanlike Performance’

A terminal operator may also be held liable for the breach of the warranty of workmanlike performance. This warranty requires that the terminal operator use such care and diligence as an ordinarily prudent and skillful person would use in the same circumstances. In other words, a terminal operator must exercise reasonable care and the breach of this duty exposes it to liability for all foreseeable and proximate losses.

VII. The Doctrine of Res Ipsa Loquitur May Also Provide a Basis for a Terminal's or Fleeter's Liability for a Breakaway

The doctrine of res ipsa loquitur (Latin for 'the thing speaks for itself') may also be invoked in admiralty actions by a plaintiff vessel owner to sustain its burden to prove a terminal's or fleeter's negligence. This doctrine applies when (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 a type that ordinarily does not occur in the absence of negligence. If successfully invoked, this legal doctrine raises a presumption that the terminal operator or fleeter was negligent for failing to return the barges to their owner(s) in the same condition they were in when dropped off.

VIII. The Pennsylvania Rule: Failure to Possess and/or Fully Comply With the Terms of a Corps of Engineers Permit May Expose a Terminal Operator or Fleeter to a Presumption of Negligence

If a party to a maritime casualty is guilty of a statutory violation, under the 'Pennsylvania Rule,' named after an 1873 U.S. Supreme Court decision, that party must show not merely that its fault might not have been one of the causes or that it was probably not one of the causes, but that it could not have been. Although this rule originally applied only to ship collisions, it has been extended to apply to any statutory violator who is a party to a maritime accident.

Depending on the circumstances of the particular case, a fleeter's or terminal's violation of its U.S. Army Corps of Engineers permit may constitute a sufficient statutory violation for the opposing party to successfully invoke the Pennsylvania Rule, because such permits are issued pursuant to statutory authority, specifically the federal Rivers and Harbors Act. Further, on the Lower Mississippi River, for instance, Coast Guard regulations prescribe operational practices to which fleeters must adhere. At least one court has found the violation of these Lower Miss Coast Guard regulations sufficient to invoke the Pennsylvania Rule.

IX. Proportionate Responsibility Applies in Maritime Law

The general rule in any maritime casualty (with certain exceptions, for example for damage to an Army Corps of Engineers structure) is that the court will apportion damages based upon the relative responsibility each party bears for the incident. In other words, a pure comparative responsibility regime applies in maritime accident cases. Thus, even though a vessel, terminal, or fleet may not be primarily at fault for a breakaway, if it was negligent and this negligence caused or contributed to cause a breakaway, this vessel, terminal, or fleet will generally bear responsibility for the total money damages caused by the breakaway in proportion to its share of responsibility for the breakaway.

X. Liability to the Coast Guard

A. Negligent Operation of a Vessel

46 U.S.C. §2302, subsection (a), states that a "person operating a vessel in a negligent manner or interfering with the safe operation of a vessel, so as to endanger the life, limb, or property of a person is liable to the United States Government for a civil penalty of not more than $1,000." Subsection (b) provides that a "person operating a vessel in a grossly negligent manner that endangers the life, limb, or property of a person commits a class A misdemeanor." Subsection (c) informs that an "individual who is under the influence of alcohol, or a dangerous drug in violation of a law of the United States when operating a vessel, as determined under standards prescribed by the Secretary by regulation-is liable to the United States Government for a civil penalty of not more than $5,000; or commits a class A misdemeanor." §2302 also provides for in rem liability of the offending vessel for the penalties assessed under this statute.

The civil penalties the Coast Guard may assess under §2302 can increase directly in proportion to the number of vessels involved. For example, in a 1997 decision, a Tennessee federal court discussed how the Coast Guard had assessed a civil penalty under §2302(a) against a fleeting facility in the amount of $4,500, calculated by the Coast Guard Hearing Officer as nine (9) violations at $500 each for the breaking-away of nine (9) barges.

B. Failure to Monitor or Keep Under Surveillance Tank Barges

Generally, Coast Guard regulations require that moored tank barges be monitored unless the vessel has been gas-freed. See, for example, 46 CFR §35.05-15 and 46 CFR Part 151.

C. Liability of Holder of Coast Guard License for Suspension and Revocation Proceedings for Incompetence, Misconduct, or Negligence

46 U.S.C. §7703, entitled "Bases for suspension or revocation," provides that the Coast Guard may suspend or revoke the license, certificate of registry, or merchant mariner's document if the holder while acting under the authority of his or her license, certificate, or document "(A) has violated or fails to comply with this subtitle, a regulation prescribed under this subtitle, or any other law or regulation intended to promote marine safety or to protect navigable waters; or (B) has committed an act of incompetence, misconduct, or negligence; (2) is convicted of an offense that would prevent the issuance or renewal of a license, certificate of registry, or merchant mariner's document…"

XI. Contractual Limitations on Liability

Parties involved in barge fleeting or river terminal operations may agree to apportion liability, between themselves, for a breakaway, and a plethora of other potential mishaps, beforehand by contract. In such contracts, prudent parties will include clauses dealing with (i) indemnity and (ii) insurance obligations. In the main, parties agree to apportion responsibility in such agreements for property loss and/or damage, personal injury and/or death, and defense costs, including attorney's fees. Many risks associated with terminal and fleet operations can be addressed beforehand in a contract. It is where there is not a preexisting contract in which private civil liabilities are addressed that courts then apply many of the rules of law outlined above. Courts will generally enforce indemnity agreements in maritime contracts if they are clearly worded. If a party wishes to be indemnified for the consequences of its own negligence, courts applying general maritime law have held that this intention must be expressed "clearly and unequivocally." While such indemnity agreements are generally unenforceable if they require the owner of a tow to indemnify the towboat, courts have upheld indemnity agreements whereby a barge owner agrees to indemnify a terminal owner for the latter's negligence.

About the Author Frederick B. Goldsmith, who is licensed to practice law in Pennsylvania, Ohio, West Virginia, and Texas, focuses his practice on admiralty & maritime and commercial litigation with the firm of Burns, White & Hickton, LLC in Pittsburgh, Pennsylvania. He is a Proctor Member of the Maritime Law Association of the United States and is a former clerk to the Honorable Howell Cobb of the U.S. District Court for the Eastern District of Texas. He most recently served as Vice President & General Counsel of Cleveland-based the Great Lakes Towing Company, and affiliates, owners and operators of a fleet of fifty harbor and oceangoing tugs. Fred produces a regular and free e-mail newsletter on developments in U.S. Coast Guard regulations and admiralty & maritime-related court decisions which you can subscribe to via this webpage, http://www.bwhllc.com/mlu. He can be reached at (412) 394-2500 or [email protected]. This article is copyrighted ©2002 by Frederick B. Goldsmith. It is not intended to be legal advice or the practice of law. If you wish legal advice, please contact a lawyer licensed in your jurisdiction.