Fifth Circuit Considers Inland Navigational Rule on Narrow Channels (USA)
In Mike Hooks Dredging Company v Marquette Transportation Gulf-Inland, LLC the US Fifth Circuit Court of Appeals recently explored Inland Navigational Rule 9, the rule for navigating in a narrow channel, and its relationship to The Pennsylvania rule in connection with an allision that occurred on the Intracoastal Waterway in Louisiana.
The dredge Mike Hooks was operating in the Intracoastal Waterway under a contract from the US Army Corps of Engineers when it was struck by a passing vessel, the Pat McDaniel. At the time of the allision, the Mike Hooks was moored on the bank of the narrow Wax Lake intersection undergoing repairs.
In the early hours of May 31 2008 the Mike Hooks arrived at the project location near Wax Lake and set up in the middle of the channel in anticipation of operations. The Wax Lake intersection is difficult to navigate because of dangerous currents and eddies. Later that morning, the vessel ran aground on the south bank.
Throughout the day, two other vessels came extremely close to striking the dredge as it was moored along the bank, and in fact a towboat, the Sarah D, collided with the dredge around 4:20am. Thereafter, the dredge had to be moved to the northwest corner of Wax Lake intersection so it could make repairs.
At trial, there was no conclusive evidence as to the width of the channel where the Mike Hooks was moored, but testimony indicated that it was between 400 foot and 800 foot. Later in the day, the Pat McDaniel approached the Wax Lake intersection and the dredge Mike Hooks. A brief conversation between each vessel indicated that there was an agreement for the Pat McDaniel to pass on a starboard passing agreement or on two whistles. The captain of the Mike Hooks did not inform the captain of the Pat McDaniel about the previous near misses and allision because of the current.
Due to the strong currents in the intersection, passing vessels had to steer toward the north bank of the river until the current pushed them away towards the south bank. The Mike Hooks’ position thus caused westbound vessels, like the Pat McDaniel, to steer directly at the dredge to navigate the Wax Lake intersection.
Around 9:15am the Pat McDaniel allided with the Mike Hooks, despite the fact that it occurred during daylight hours with good visibility. At trial, the master of the Pat McDaniel acknowledged that he misjudged the current and ultimately allided with the Mike Hooks. However, the owner of the Mike Hooks sued the Pat McDaniel and other parties for damages associated with the allision. The owner of the Mike Hooks alleged that the Pat McDaniel was at fault because it was in violation of several inland navigational rules.
The owner of the Pat McDaniel filed a counterclaim against the dredge, alleging statutory and violations of the Inland Navigational Rules and a third-party claim against the owner of the assist boat that was onsite to assist and move the dredge as necessary. After a bench trial, the district court found all three parties partially liable and the owner of the Mike Hooks appealed.
The owner of the Mike Hooks first appealed on the basis that the district court had erred in applying The Pennsylvania rule of presumption against it. The Pennsylvania rule is a burden-shifting presumption for causation when, at the time of collision, a vessel is in actual violation of a statutory rule intended to prevent collisions. In those situations, the burden rests on the ship to show not merely that its fault might not have been one of the causes, or that it was probably not, but that it could not have been one of the causes of the allison or collision (The Pennsylvania, 86 US (19 Wall) 125 (1873)).
Therefore, the rule creates a presumption that anyone that violates a regulation intended to prevent collisions will be deemed responsible. The presumption is rebuttable and applies only to violations of statutes that delineate a clear legal duty. In its discussion of The Pennsylvania rule, the Fifth Circuit Court of Appeal cited its prior opinion in Tokio Marine & Fire Ins Co v FLORA M/V (235 F 3d 963 (5th Cir 2001)) to demonstrate the shifting presumption of fault.
The owner of the Mike Hooks challenged the district court ruling on the grounds that Inland Navigational Rule 9(g) did not establish a clear legal duty. The Fifth Circuit disagreed and held that Rule 9(g) expressly prohibits vessels from anchoring in a narrow channel except in exceptional circumstances. Rule 9(g) provides: “Avoidance of anchoring in narrow channels. Every vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel.” The Fifth Circuit acknowledged that as part of the Inland Navigational Rules’ overall scheme to manage risks of collision, Rule 9(g) imparts a legal duty on vessels to avoid mooring in narrow channels in the absence of special circumstances.
Thus, any violations of Rule 9(g) are sufficient to trigger The Pennsylvania rule. While there was no legal definition of ‘narrow channel’, other Fifth Circuit cases have held that any bodies of water that are less than 1,000 feet in width constitute a narrow channel (see Marine Transp Lines v M/V TAKO INVADER, 37 F 3d 1138 (5th Cir 1994)). As the Wax Lake intersection was less than 1,000 feet wide, it was a narrow channel for the purposes of applying The Pennsylvania rule.
The dredge owner also challenged the district court by arguing that in order for Rule 9(g) to apply, the dredge must first have been found to be an obstruction to navigation. However, the Fifth Circuit rejected this and instead explained that the language in Rule 9(g) is unambiguous and clearly states that every vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel. As such, there was a clear legal duty to avoid anchoring in a narrow channel.
The district court also held that the Mike Hooks could have moved to an alternative mooring location where it would have been less susceptible to allisions. The owner of the Mike Hooks argued that the physical condition of the dredge did not allow it to move to another location where it would not have been an obstruction to navigation. In so doing, the owner attempted to invoke the in extremis standard of care, whereby imperilled parties should not be second-guessed by the courts.
However, the Fifth Circuit declined to designate the situation as one where Hooks was entitled to deference under the in extremis standard, where courts are not supposed to second-guess vessels and expect the most precise judgments from them in times of peril. There was testimony from the crew of the Mike Hooks that the damage to the dredge did not make it at risk of imminent sinking. Because there was no emergent situation on the condition of the dredge, its violation of Rule 9(g) was not excused by way of an exception.
The Fifth Circuit firmly held that Inland Navigation Rule 9(g) establishes a legal duty that may give rise to The Pennsylvania rule presumption where the vessel in violation of the rule is presumed to be at fault for the collision. A violation of Rule 9(g) may be excused if the offending vessel demonstrates sufficiently that it was in an emergency situation at the time of the collision.
However, the factual scenario with the Mike Hooks and the Pat McDaniel did not constitute one that is covered by the in extremis standard, and therefore there was no exception to The Pennsylvania rule for the purposes of rebutting the presumption. Ultimately, the owner of the dredge failed to show that its violation of Rule 9(g) could not have been a cause of the allision with the Pat McDaniel, and the district court’s judgment was affirmed.
Source: internationallawoffice, July 18, 2013