The case of the Schooner Catharine (1854) established the principle of divided damages wherein vessels having been involved in a collision and each, if having been found to have committed a fault or faults, would share in the damages equally regardless of the relative seriousness of their individual faults. Nineteen years later in the case of the Pennsylvania (1873), the court held that if a vessel had been found to have violated a statutory rule (thus commited a fault), the burden of proof shifted to that vessel to prove that such violation not only did not — but could not — have been a cause of the collision. (Note the imperative to prove that the fault could not have been a cause.)
Taken together, these two rulings became the hammer and anvil to the unfortunate vessel that committed a relatively minor fault — once ensnared by the Pennsylvania ruling she then found herself bound by that of the Catharine requiring her to share equally the total damages with the other vesssel whose fault or faults may have been, by comparison, egregious. Thus, even though chronologically the Catharine ruling came nearly two decades before that of the Pennsylvania, it was the latter that sprang the trap upon a vessel guilty of a relatively minor transgression, exposing her to the equal damage decision laid down by the earlier Catharine decision.
To emphasize two points: First, unlike the colloquial meaning of divided which imples split into unspecified parts, “divided†as used by the court in the Catharine decision required division into equal parts; second, the “presumption†in Pennsylvania was not one of fault (that would have to be first proven by the vessel alleging it of the other vessel) but rather of “causation.†Once fault was proven to exist, the onus of defense shifted to the accused vessel to prove that its fault could not have been a cause.
Distress was nearly immediate on the part of vessel owners, crews, etc, and even within the courts themselves as they began openly expressing distaste for the uneven justice sometimes resulting from the one-two punch of those two Supreme Court precedent-setting rulings. In the years following those decisions, lower courts had shown dissatisfaction in two ways: (a) in cases when one vessel’s putative “fault†was in such minor disproportion to that (or those) of the other vessel, it was essentially ignored; and (b) in cases where one vessel was forced into a last-moment precipitous (and possibly imprudent) maneuver by the grossly negligent action (or non-action) of the other, it was judged to be an action taken “in extremis†— consequently there would be no fault, making moot any presumption of causation and thereby sidestepping any half-damage liability that would otherwise have arisen under Catharine.
A note for those reading older court transcripts. In old sailing/shipping naratives, helm orders were given opposite to the intended change in direction. The changeover from “port helm†to “right rudder†(etc) came to the British Navy and Merchant Marine in 1933, the U.S. Navy in 1914 and about 1935 for the U.S. Merchant Marine. Court transcripts during the transition years were occasionally inconsistant so can be confusing.
A late June evening in 1879 off the (again) New Jersey coast found the 282-ton British barque Helen bound Havana to New York heading NE at about 4 knots. Approaching from the NE was the 1,715-ton wooden steamship City of New York, enroute New York to Havana making good about 10 knots into a strong southwesterly. As the vessels closed on near-reciprocal courses, the darkness was compounded by a developing fog yielding visibility of less then 1/8 mile. Both vessels had adequate lookouts, were showing proper lights and sounding appropriate fog signals (horn by the barque and whistle by the steamer). Pages of conflicting testimony laid before the Court for the Southern District of New York seemed to “sugar-off†to the following:
(a) Each heard the other’s fog signals before sighting. About two minutes before the collision, the southwest-bound steamer picked up the barque’s horn estimated at about a point on her starboard bow. Responding to an immediate starboard helm, the steamer started swinging to port. About a minute later, the barque’s sails broke through the darkness and “was seen changing her course to the eastward …so as to open her masts and show her red light†as she crossed the steamer’s bow from starboard to port. The steamer stopped, backed her engines and shifted her rudder in an attempt to pass astern.
(b) Those on the approaching barque testified that the steamer’s whistle was heard nearly abeam to port about two to three minutes before the collision; shortly later the steamer’s masthead and green light were seen at which point the mate stated that he ordered that she be “luffed a little†approximately one point, which would have brought her to starboard and nearly east.
(c) The steamer’s attempts to slow, stop her swing and hopefully pass under the barque’s stern failed and the collision resulted; the steamer’s bow pierced Helen’s port quarter; the master and four crew went down with her.
Much of the argument before the court centered on that last-minute “luff a little†course change to starboard claimed by the barque. Recall the legal atmosphere existing at the time in which a proven violation of a statutory rule would be held as a fault (Pennsylvania) and comission of a fault would lead to paying half-damages, regardless of the relative seriousness of the fault or faults by the vessels involved (Catharine).
One way that courts attempted to circumvent justice inequity in some cases was to employ the concept that an action taken in extremis, no matter if in hindsight it was unwise (if not illegal), by one vessel that was forced upon it by a flagrant violation by another would “not be looked upon too harshly.†This was the background of the barque’s defense — that her “little luff†that put her across the steamer’s bow was a last moment action taken in extremis to avoid a collision and should be not be looked upon as a “fault.â€
After Herculean examination of probable track reconstructions, wind directions, etc., the District Court determined that the barque’s last minute “little luff†of about a point was, in reality, a large course change from NE to E of some 45° and given the times involved, the change more likely had to have been executed some minutes prior to the collision and not in the last seconds. Thus the barque’s claimed last-moment “action taken in extremis†defense did not hold.
Finding that the steamer’s faults involved failure (a) to proceed at a moderate speed in restricted visibility and (b) to slacken speed or stop when the danger of collison existed and that the barque (a) failed to hold her course and (b) made an improper maneuver across the steamer’s bow, one that was not in extremis; she too had faulted. Thus the damages were to be divided. Faults on the part of both had fallen to the 1873 Pennsylvania precedent and divided damages to that of the 1854 Schooner Catharine.
When the case arrived at the Court of Appeals, essentially the same evidence was presented, but the District Court’s findings were reversed when the barque’s maneuver was judged to be in extremis and the finding went against the steamer for total damages. The transgressions of the barque, although ill-advised, were deemed minor relative to those of the steamer. As stated by the court: “(w)here fault on the part of one vessel (the steamer) is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel (the barque). There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its (the barque’s) favor.†(Italics added.)
The steamer’s owners appealed to the Supreme Court (147 US 72) but to no avail; in 1893 the Supreme Court affirmed the Court of Appeals decree and with that decision, “major-minor fault†had not only been born, but baptized.
The major-minor fault decision in New York/Helen was an attempt to circumvent the uneven justice that sometimes resulted from the Pennsylvania/Catharine duo, but even at the time it was recognized as an imperfect solution; hope was on the way however — the 1910 Brussels Collision Convention.
Article 4 of that international agreement would mandate that the liability of a vessel in fault would be in proportion to the (relative) degree of her fault or faults, blunting the effect of then-existing Catharine 50/50 divided damage criteria. Article 6 would abolish all legal presumptions of fault in regard to liability — a sideswipe at Pennsylvania’s presumption of causation. The overwhelming majority of maritime nations signed onto the convention, but the U.S. Senate, bowing to cargo interests (that had objections to other parts of the convention), rejected it and the U.S became (and remains) the only major maritime nation to have turned its back.
Addressing the Pennsylvania Rule in the Journal of Maritime Law and Commerce, McGill University Professor of Law William Tetley pulled no punches: “The Pennsylvania Rule … an ominous presumption based on a draconian standard …. a corollary of the divided damages rule — one should really go hand in hand with the other, and the abdication of one (Catharine) should logically lead to the abolition of the other (Pennsylvania).â€
Abolition of the rule wasn’t to be; the court has never rejected the latter, but 65 years after the Senate’s Brussels rejection, the Supreme Court heard and decided a case that would accomplish what the Brussels would have, “U.S. v. Reliable Transferâ€â€¦and believe it or not, near New Jersey!
Stay tuned.
About the Author:
Following graduation from the U.S. Naval Academy, Jim Austin served aboard both a destroyer and cruiser with duties that included navigator, assistant CIC (combat information center) officer and air intercept controller. He subsequently worked on the submarine launched ballistic missile program for the General Electric Co.’s Ordnance Division. He holds a U.S. Coast Guard master’s license and writes frequently on ship collisions as seen through the twin lenses of the navigation rules and maritime law. He’s a retired physician living in Burlington, Vt.
