The compounded effect of the Catharine/Pennsylvania precedents descending upon an unfortunate vessel being found to have committed a fault and thus assigned 50 percent of the total damages (no matter the relative degree of its fault compared with that of the other vessel) — resulted in sometimes openly expressed chagrin within the lower courts bound by those precedents.
Turning its back on the opportunity to unscramble this legal quagmire, the U.S. Senate rejected the 1910 Brussels International Collision Convention, an international agreement whereby Article 4 would apply damages in proportion to relative fault (contrary to Catharine) and Article 6 would eliminate any legal presumption of fault (contrary to Pennsylvania). The United States was virtually the only major maritime nation (even to this day) that did not become a party to the convention. There the situation lingered for 65 years, with the lower courts struggling to find ways around potentially unfair and uneven justice consequent to the precedents set by those 1854 and 1873 rulings. Ironic that the case to finally clear the (legal) deck would again arise off the New Jersey/New York coast and would be not a collision, but a 1975 stranding — that of the Mary A. Whalen (aka Reliable Transfer). Fortunately neither the vessel nor lives were lost, but the event spawned a decision that changed the legal seascape dramatically.
Before tackling that one, let’s take a look at a collision that highlights the quandary facing courts given the situation then existing. (The following occurred under the pre-’72 ColRegs, when the stand-on vessel was burdened with the “privilege†of continuing on into the jaws of extremis before she could legally take action to avoid.)
Well out to sea one September day in 1946, the 543-foot tanker Nashbulk (N) bound Venezuela to Portland, Maine, with crude was steaming on 356° true at 16 knots through calm seas on a clear day with good visibility. Rutgers Victory (RV), proceeding on 80° true at 14.5 knots bound Philadelphia to Antwerp with coal, was initially sighted by N broad on her port bow at about eight miles and closing. For the next 15 minutes her bearing remained steady with no sign of evasive action being taken and at that point N’s mate went to manual steering. At about two miles N’s master was called to the bridge and at about a half mile he ordered slow ahead and rudder hard right — without sounding the required one short whistle. Half a minute later he sounded three short and ordered full astern, but collision ensued with N’s bow penetrating RV’s starboard quarter.
During this period aboard RV, there was no lookout and the mate had left the bridge to work at a desk in the rear of the pilothouse — the three-blast whistle producing his first awareness of another vessel close aboard. Alerted, the mate returned to the bridge and ordered hard left rudder, but to no avail. Both vessels survived the collision, but with considerable hull and cargo damage; their next meeting was in court.
With more originality than reality, RV attempted to fault N for failing to sound the one-short rudder signal with her turn to starboard — proposing that a warning (wakeup) call might have precipitated timely avoiding action by RV. Without going into greater detail here, the District Court declined to accept this imaginative but doomed defense and imposed total damages on RV. The case then went to the Court of Appeals for the Second Circuit.
While taking notice of N’s failure to sound one short blast as her rudder went starboard, that court opined that it “could not be held as a contributing cause … she cannot, therefore, be forced to pay half the damages merely because the other vessel was so grievously at fault … to allow that would simply put a premium on gross negligence in navigation, ‘for had RV not been as blind as one who will not see,’ no alerting signal would have been of any use and the exoneration of N would have followed almost as a matter of course.â€
Accordingly, the Circuit Court affirmed the District Court’s finding. This was an example of the court finding a way to avoid the onus required by the Pennsylvania precedent to consider violation of a statutory fault as causative (unless the accused vessel could prove otherwise) — that would then lead to half damages as per the precedent set in the Schooner Catharine case.
Judge Learned Hand’s written dissent in the above case illustrates the frustration of the lower courts in adhering to the precedents laid down by the Supreme Court. “An equal division of damages in this case would be plainly unjust; they ought to be divided in some proportion as five to one. And so they could be, but for our obstinate cleaving to the ancient rule which has been abrogated by nearly all civilized nations and nevertheless, so long as our antiquated doctrine prevails, I think we should divide the damages.â€
Even as he was recognizing the principle of proportional division of damages, Judge Hand seemed to acknowledge that unintended consequences of uneven justice could sometimes be forced upon the system by unfortunate precedent. This unhappy state would continue until what has to arguably be one of the more famous strandings in US maritime history — that of Mary A. Whalen, otherwise referred to in case law as (taking the name of the vessel’s owners) Reliable Transfer.
“It was a dark and stormy night†would be an apt description of the situation encountered by the coastal tanker Mary A. Whalen. She had departed Constable Hook, N.J., bound Island Park, N.Y., on the south shore of Long Island with a load of fuel oil. Downbound to the south, she would take Coney Island, Rockaway Inlet and Rockaway Point to port before reaching open water where she would turn onto a more easterly heading along Long Island’s south coast. Two problems arose — the master and mate had noted that the Coast Guard-maintained breakwater light on the tip of Rockaway Point was out, and second, she was planning to pass a tug/tow, then on her port, before turning east.
Recall the conditions — it was night as northerly gale-force winds opposed a tide at max flood generating 10-foot seas. Realizing that such passing would not give her clear sea room astern before the desired turn, she planned to do a 180° turn in order to let the tow pass, go astern and turn east to about 73°. With the U-turn completed and believing that she was now in open water with Rockaway Point safely astern, Mary A. Whalen turned to the southeast.
The problem was that with Rockaway Point’s breakwater light extinguished, there was no assurance that the point had in fact been passed; hopeful optimism gave way to reality when suddenly the light structure and rocks came out of the gloom dead ahead. The tanker stranded — aground on a sand bottom.
The case started its journey through the federal courts at the Eastern District of New York where “negligence by the USCG in failure to maintain the light†was deemed 25 percent causation with 75 percent attributed to Mary A. Whalen “for her turn in a dangerous channel knowing the breakwater light was not functioning.†As in Nashbulk/Rutgers Victory, the court was constrained by precedent, holding that it “is held under controlling law (referring to the 1854 Supreme Court ruling for Catharine) that each party should bear half of the damages.†The District Court did so and both parties appealed to the Second Circuit.
The poetic opening of the Court of Appeals transcript merits preservation: “(t)he case arises from a little saga of the sea — this time involving a coastal tanker, the Mary A. Whalen, that got lost in the waters just outside New York harbor on a clear night in December 1968 when the seas were rough, the tide was running strong and a breakwater light maintained by the Coast Guard was out.†After hearing essentially the same evidence, that court affirmed the findings of the District Court, but in so doing, admitted that “although mindful of the criticism of the equal division of damages rule … (and) … that in this type of case division of damages in proportion to the degree of fault may be more equitable … (nevertheless) … we shall therefore continue to apply the rule until there shall be authoritative sanction for departure therefrom.†Once again, in so many words, we don’t like it but are bound by precedent.
Interestingly, the Supreme Court agreed to hear the appeal, as much to reconsider the overall concept of “divided damages†established by its own 1854 precedent-setting finding in Catharine as to adjudicate the specific case before it. It recognized that “we are called upon to decide whether this country’s admiralty rule of divided damages should be replaced by a rule requiring, when possible, the allocation of liability in proportion to the relative fault of each party†— a decision that would prove to be more far-reaching than just a stranding on a sand spit off Rockaway Point.
And decide it did; in 1975 the high court held that “when two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, liability for such damages is to be allocated among the parties proportionately to the comparative degree of their fault.†The Circuit Court’s judgment was vacated and the case remanded.
It’s ironic that on the remand, the Circuit Court assigned liabilities: 75 percent Mary A. Whalen/25 percent United States — exactly the proportions that the District Court would have imposed had they been free (of precedent) to do so.
The case of Reliable Transfer, that “little saga of the sea,†effectively scuttled the unfairness of Catharine’s “divided damages†that had prevailed for 121 years, blunted the effect of Pennsylvania’s 102-year “presumption of causation†(though it still remains on the books) and rendered moot the major-minor rule that sometimes provided, albeit imperfectly, an escape from uneven justice – or as the 5th Circuit admonished in a 1996 case, “(i)f we did not say it clearly enough before, we say it now, the major-minor fault rule is dead.â€
Recalling the “what goes around comes around†aphorism — the legal wake that started off the New Jersey coast in 1854 with the schooner Catharine and surged past Pennsylvania off the same coast in 1873, finally came full circle 121 years later with Mary A. Whalen stranded on a sand spit close to heaving line distance of the Garden State.
Go figure!
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.
