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Monday, August 2, 2021

Wasted Words: Post-casualty Apologies Are ‘Sorry’ Excuses

Maritime Activity Reports, Inc.

December 23, 2020

© Steve / Adobe Stock

© Steve / Adobe Stock

Vessel collisions on America’s busy inland waterways have been a fact of life for a very long time. With towboats, barges, ferries, oceangoing ships and recreational vessels all jockeying for position in limited space, collisions (and even more near misses) are inevitable.

Most of these incidents involving professional mariners do not lead to suspension and revocation (S&R) proceedings against the involved USCG licensed mariners, but, depending on the human and/or financial costs associated with the collision, some do.

In many of the more serious casualties, the direction of the proceedings is established very early on, usually when the first verbal statements by officers involved are provided to authorities responding to the accident scene.

The collision case reviewed below occurred several years ago, but this type of incident would likely evolve the same way if it occurred today.

The facts of the case are fairly common. The captain was piloting a towboat pushing a flotilla of barges downstream when he encountered an inbound tanker. The towboat’s captain communicated with the state pilot aboard the tanker to arrange a port-to-port passing.

All was progressing well until about two minutes later when the towboat’s captain contacted the pilot of the tanker informing him that his tow was breaking his range. The tanker’s pilot asked if he needed to take any actions to allow for a safer pass and, after a brief hesitation, received a negative response. About a minute later, the towboat’s flotilla swung into the path of the tanker which collided with several of the barges resulting in three of them sinking.

Consequently, it was alleged that the towboat’s captain failed to properly communicate to the tanker’s pilot that his tow had swung out too far into the path of the inbound ship, limiting the vessel’s options to avoid the collision. That allegation and subsequent on scene interviews led the Coast Guard to bring charges against the towboat’s captain for not taking all necessary actions to avoid the collision as required by Navigation Rule 8. The Coast Guard further proposed a 12-month outright suspension of the towboat captain’s license in accordance with 46 USC 7703.

Not surprisingly, the towboat’s owner did not agree with the Coast Guard’s conclusion and license suspension proposal, claiming in its Answer and Counterclaim to the tanker owner’s $3 million civil suit for damages that the ship’s pilot “…violated one or more of the U.S. Inland Navigation Rules or other statutes or regulations involving marine safety or navigation thereby invoking the Pennsylvania Rule, requiring plaintiffs to prove that those faults could not have been the cause of the collision…”

While the two companies were litigating that case in civil court, the towboat’s captain emerged as the key figure. The fact that the Coast Guard apparently agreed with the tanker company’s position that the towboat’s captain and his flotilla were responsible for the collision made a successful license defense not only crucial to his ability to keep his license and continue working for the next year, but also to his company’s attempt to prevail in the $3 million civil action brought against it as a result of the collision.

The key question was: Why did Coast Guard investigators so quickly conclude that the collision was the fault of the towboat captain to the point that it immediately proposed a 12-month suspension?

The simple answer: The shaken captain repeatedly apologized for his actions.

Specifically, immediately following the collision, in an attempt to explain what happened to Coast Guard investigators, he waived his right to be represented by counsel and gave a lengthy and rambling verbal description of what had happened, interspersing his monologue with several expressions of regret for his role in the collision.

As a result, Coast Guard investigators interpreted his apologies as an admission of fault, leading to an immediate offer of a 12-month license suspension for the captain to consider. Consequently, by the time his license defense attorney was finally contacted, assigned and had the time to properly interview his client, the chatty captain had already talked himself and his company into a pretty tight spot.

Legal counsel turns the tide
While his verbal statement could not be retracted, he now worked closely with his insurer-assigned attorney to draft a less emotionally-charged CG-2692 Report in which his culpability for the collision was much less pronounced. Obviously, the contents of this Marine Casualty Report (2692) was seen as useful to his employer who now wanted him to provide a deposition to bolster its defense position in the $3,000,000 suit for damages brought by the tanker company. After receiving a ‘hold harmless and indemnity agreement’ from his company, the captain agreed to be deposed in the civil suit…. with his own maritime attorney in attendance.

While jointly considering whether or not to surrender his Master’s license with the Coast Guard for a year, the towboat captain’s attorney concurrently contested that 12-month license suspension in Administrative Court. And, as additional facts leading to the casualty began to emerge and shared responsibility for the collision became more apparent, his attorney and Coast Guard investigators began to discuss a much less severe sanction against his license in the form of a revised Settlement Agreement and Entry of Consent Order.

In that agreement, the 12-month license suspension was taken off the table and replaced with a one-month outright suspension followed by a 6-month suspension remitted on a 12-month probationary period. In addition, it was agreed that the captain complete a Navigational RuIes refresher course during the one-month period of his suspension and send evidence of successful completion to the USCG’s Investigating Officer. After a short deliberation and with the full support of his experienced maritime attorney, the towboat captain accepted the terms of the new agreement.

Exercise your right to counsel
In hindsight, the reduced penalty, or even something less severe, might have been the original sanction proposed by the Coast Guard had the towboat’s captain not attempted to provide a “voluntary statement” to investigators before contacting and conferring with his insurer-provided defense counsel.

It cannot be overemphasized how important it is for inland river sector mariners to understand that post-casualty statements to investigators which may appear to be innocent—and perhaps even cathartic—can be interpreted completely differently by investigators leading to career-threatening consequences.

While this particular case ended with a relatively good outcome, the over $20,000 in defense costs incurred would have made it a very hollow victory for the hard-working professional mariner had he not had the forethought to protect himself and his career with a license insurance policy which fully paid all the legal costs to defend his license.

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