In a world of litigation, is zero fault possible in vessel collisions?
As an expert witness in vessel collision cases duly approved by a Superior Court (voir dire), it is my professional opinion that some other expert witnesses in these cases can be a bit overzealous at times. Specifically, I would like to dispel the theory that all vessels involved in a collision bear some amount of liability, however small that might be.
This theory arose over time within a litigious society that deals with an ever-increasing number of laws and regulations to the point of mental overload. It’s harder and harder to live through one day without breaking some law in some way. This attitude then developed with some expert witnesses, and it persists today. They assert that there is always a certain percentage of fault to be attributed to all parties involved in vessel collisions because of the sheer number of laws involved. This theory is not a valid one. It’s a dangerous and false basis of thought that might cause some courts and government agencies to assign liability unjustly.
Justifiable opinions and judgments are based on the reasonable interpretation of the laws and common sense. We should all know the basis of these laws as well. “Navigation Rules and Regulations” for vessels on international and inland waters dictates numerous specific actions for all vessels involved in a collision. The obligations include normal operating procedures, actions leading up to a collision, actions during the collision (extremeous), and actions immediately after a collision, as well as any required follow-up reporting.
It is true that there are a great deal of admiralty laws to deal with, and each one has to be either cited as a cause or eliminated. With so many boxes to check — even for a vessel that was not primarily at fault in a collision — many people assume that there must be at least one or two omissions or incorrect actions that occurred. Therefore, they presume that a fault must lie somewhere with everyone. This kind of thinking is not supported by the law, and is unreasonable and arbitrary. Common sense should be used by the expert in addition to the law. Common sense is equated to the legal standard of reasonableness, and is therefore part of the law as well. Even the rules themselves prove the fact that there is not always fault to be assigned.
Rule 2 of “Navigation Rules and Regulations” directly addresses responsibility and absolving of fault in some cases:
• (a) Nothing in these rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these rules, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
• (b) In construing and complying with these rules, due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these rules necessary to avoid immediate danger.
If nothing in the rules can exonerate a negligent vessel, then consequently there’s nothing in the rules that can assign fault to another vessel when gross negligence is involved. There’s negligence, and then there’s gross negligence. Negligence is when the crew acts incorrectly or fails to act correctly without specific intent to do harm. Gross negligence is when a person acts in such a way as to cause a collision with specific intent to do so, or such actions might reasonably lead to a collision.
You cannot use the rules to assign fault to another vessel if you choose not to avoid a collision, or if you choose to intentionally cause one. Sure, in most cases no one wants to cause a collision, but that’s not true in all of them. Some people choose to act in a grossly negligent manner. They actually use their vessels to threaten collisions and cause collisions. In such cases, that person or persons cannot go back to the rules and use them against their victim vessels. “Nothing in the rules” means zero fault in such cases, in my opinion, and such cases do exist.
If a terrorist intentionally rams another vessel with intent to cause it harm, it immediately alleviates the victim vessel of any fault regardless of that vessel’s actions or omissions. If a vessel simulates ramming another vessel repeatedly, and then a collision occurs, no fault can be assigned to the victim vessel. That’s also my interpretation of Rule 2, and I have personally witnessed the latter scenario twice.
The first time I saw a vessel being operated in a grossly negligent way while threatening to cause a collision was in San Francisco Bay. I was the captain of a passenger vessel underway when a sailboat abruptly altered course and swung around in front of my bow. It crossed three feet in front of me from port to starboard before I could slow my vessel to a stop. The skipper at the helm of the sailboat smiled at me and began laughing. He sailed away aft of me, so I began to resume my original course and speed. Once again he changed course to veer toward and across my bow. This time he came even closer and I was greeted with more laughs. The third time he did it, I was ready and managed to miss him while sounding the danger signal.
If a collision had occurred, who would you assign fault to and in what percentages? Would I have been at fault in a power vessel for not giving way to a sailboat? Would I have been at fault for not sounding the danger signal the first two times I was caught unaware?
There are possible rule violations by my vessel that can be listed, but they shouldn’t for at least two reasons. First, there is case law that agrees with assigning 100 percent fault to vessels that maneuver in such spontaneous and unavoidable ways. You cannot suddenly and intentionally cut off another vessel in a grossly negligent way that causes a collision or is likely to cause one, and then blame the other vessel with the rules. You can even prove that the victim vessel violated certain rules in court, but still not assign fault to that vessel.
In one such case, the defendant proved that the victim vessel violated Rule 17 (action by stand-on vessel) and Rule 5 (lookout), but the court found that both violations were not contributing factors to the collision. The court then assigned 100 percent fault to the defendant and zero percent to the plaintiff. The court used the reasonableness standard.
There was another very similar situation that occurred in San Diego Bay. I was the captain of a passenger vessel when I observed a privately owned yacht simulate the ramming of another passenger vessel by speeding and cutting in front of it by mere inches. Even though the passenger vessel was the stand-on vessel, the captain was backing down, changing courses, sounding the danger signal, calling the Coast Guard and attempting to call the yacht. He was asking other vessels in the area to help him fend off this dangerous skipper. He said he had children on board who were in a panic, and the rest of his passengers and crew were in immediate danger. He ordered his crew to get the passengers into lifejackets, and he had the passengers lie down on the deck and brace themselves for impact. The captain attempted to continue to the dock, all the while trying to avoid a collision with the yacht that kept buzzing him. He did everything he could to avoid a collision.
I ask all you experts out there, how much liability would you assign the passenger vessel had there actually been a collision? My answer is zero, because the rules were compiled and ratified to prevent collisions, not protect those who intentionally cause them.
Properly addressing gross negligence and assigning liability to vessels involved in a collision is simple. Approach every case with an open mind, and let the facts surrounding the collision provide the basis for professional opinion. Remember, not all vessels involved in a collision can be assumed to have some degree of fault. The facts surrounding the collision should determine the amount of fault attributed to each vessel. In some rare cases, that percentage of fault can be zero. If a vessel underway collides with another vessel at anchor, in a designated anchorage with proper day shapes and lights displayed on the anchored vessel, you can’t go aboard the vessel at anchor, find one fire extinguisher with an expired tag and say, “A-ha! You violated the law, therefore I’m assigning you 5 percent of the fault in the collision.” That’s not reasonable.
Capt. Marc Deglinnocenti is a maritime technical writer. His sea time dates to 1974 in a wide variety of roles on sailboats, conventional and tractor tugboats, training ships, barges, warships, cargo ships, passenger vessels and research vessels. He can be reached by emailing email@example.com.