Marine Torts and Casualties

Maritime Personal Injury and Death

There is a body of law applicable to personal injury and death claims that is part of the maritime law of the United States. Some of it is statutory and some is contained in the rules of the general maritime law. Maritime personal injury and death actions are governed by a set of rules that are separate and distinct from the general body of tort law applicable in non-maritime situations.

In resolving maritime personal injury and death claims that stem from maritime employment or employment in a maritime environment, the status of the parties, both plaintiff and defendant, is of primary importance. Some rules are of a general character and may be invoked by any claimant, but other rules are status dependent, creating both rights and remedies that may be invoked only by a specified plaintiff class against an equally well-defined defendant class. With respect to maritime personal injury and death law in the United States, three classes of employee claimants are likely to be encountered: (1) seamen; (2) maritime workers who are not seamen; and (3) offshore oil and gas workers. Additionally, suits are brought by passengers, and in recent years litigation involving recreational boating accidents resulting from the operation of pleasure boats or personal watercraft such as jet skis has increased. Typical defendants in these various actions include employers, vessel owners, and operators, and third-party tortfeasors, such as product manufacturers.

Seaman

Seamen have three primary remedies available under both the general maritime law and statute. Seamen have actions for maintenance and cure, for negligence, and for unseaworthiness of a vessel. Where more than one of these claims grows out of the same incident, the claims usually are asserted in a single action.

Longshoremen

Persons engaged in “maritime employment,” such as longshoremen and harbor workers, enjoy a special status that affects both the rights and remedies available to them as a result of work-related injuries or disabilities. Under the Longshore and Harbor Workers’ Compensation Act (LHWSA), workers who come within the coverage of the Act and who sustain injury or illness related to their maritime employment are entitled to scheduled compensation benefits from their employers.

The LHWCA is essentially a federal workers’ compensation statute in which a covered worker “accepts less than full damages for work-related injuries. In exchange, he is guaranteed that these statutory benefits will be paid for every work-related injury without regard to fault.

Passengers

A vessel operator is not an insurer of its passengers’ safety. A vessel operator owes passengers and visitors aboard its vessel a duty of reasonable care under the circumstances to not negligently injure them and to warn them of any dangers of which he knows or should know. The liability of a passenger carrier for creating and maintaining a dangerous condition must be predicated on actual or constructive notice of its existence. The rules relative to passengers apply to guest aboard pleasure vessels.

Offshore Workers

The discovery and production of offshore energy resources exposed a new class of worker to the perils of maritime employment. The Outer Continental Shelf Lands Act (OCSLA) extends the Longshore and Harbor Workers’ Compensation Act compensation benefits provisions to offshore workers engaged in extracting natural resources on the Outer Continental Shelf. For offshore workers (as with maritime workers), the exclusive remedy against their employers is compensation; they may not maintain a tort action against their employers.

Workers engaged in activities on areas of the Continental Shelf that lie below state waters have remedies with respect to their employers under state workers’ compensation laws. Tort claims may be brought as state claims or general maritime law claims, depending on the circumstances. With respect to injuries occurring on the Continental Shelf within state waters, the OCSLA is silent. However, because the OCSLA make non-conflicting state laws applicable to injuries occurring on covered situses adjacent to a state, presumably state law would be applicable to similar events occurring within a state’s territorial waters.

OCSLA by its own terms excludes from coverage government employees and seamen. This does not mean, however, that all others injured while engaged in activities on the Outer Continental Shelf are covered. In order for OCSLA coverage to attach, an offshore worker must be engaged in one of the enumerated activities — e.g., “exploring for,” “developing,” “removing,” or “transporting” natural resources as set forth in the OCSLA. As to the situs requirement, it is not clear if it applies where the employee is assigned to work on the Outer Continental Shelf even though at the moment of injury he or she may not in fact be in that location, or if the employee must in fact be engaged in work on the Outer Continental Shelf when injured. If a worker satisfies the status requirement and is actually injured while working on the Outer Continental Shelf, that worker meets the situs requirement and is entitled to compensation benefits.

Collision and Allision

Collision law applies in two situations. The first is the traditional collision situation where two moving vessels come in physical contact with each other. The second situation, referred to as an “allision,” occurs where a moving vessel strikes a stationary object, such as a docked vessel, a bridge or a wharf.

Fault in a collision case may arise because of (1) negligence or lack of proper care or skill on the part of the navigators; (2) a violation of the rules of the road (i.e., the applicable rules of navigation laid down by or under the authority of statute or regulation); (3) failure to comply with local navigational customs or usage; or (4) an unseaworthy condition or malfunction of equipment. Liability is imposed where the negligence of the navigator of a vessel is found to have caused a collision. The test is whether the collision could have been avoided by the exercise of ordinary care, caution, and maritime skill. Collision cases tend to be fact-specific, and the circumstances of each case will be controlling.

Also, a vessel may be held at fault for violation of a local navigational custom. A party seeking to rely on a custom to establish fault has the burden of establishing such custom, in fact, exists. Custom may be relied on only if it does not conflict with statutory rules of navigation.

No liability will be imposed even where negligent navigation is shown unless it is proved that the negligence was the proximate cause of the collision. A proximate cause must, however, be a substantial factor in bringing about the collision. There may be more than one proximate cause to a collision. Negligence will be allocated among the colliding tortfeasors on the basis of proportionate fault. The rule of superseding cause may be applicable, whereby under appropriate circumstances a subsequent negligent act may supersede prior fault and relieve from any liability the party initially at fault.

Damage to Shore Structures

Congress, by enacting the Admiralty Extension Act, conferred on the federal courts admiralty jurisdiction over torts committed by vessels in navigable waters notwithstanding the fact that the injury or damage was sustained on land. It was enacted specifically to remedy situations referred to as allisions, where vessels collide with objects fixed to the land, such as bridges that span navigable waterways.

Pollution Liability

Federal statutory law prohibits the discharge of any “pollutant” by any person into the navigable waters of the United States without a permit. Pollutant is defined as including oil, chemical waste, solid waste, garbage, biological materials, heat, discarded equipment, industrial waste or hazardous substance discharged into the water in any harmful quantity. A “harmful quantity” has been defined as producing a visible sheen.

The statutes permit the U.S. to recover from vessel owners, demise charterers, and operators any cost of removal incurred in connection with a discharge. Such expenses need not be reasonable to be recoverable — the government may recover its actual expenses whether such expenses are reasonable or excessive. Liability for cleanup costs and damages is without regard to negligence, and the only defenses are that the discharge was caused solely by an act of God, act of war, negligence on the part of the United States Government, or an act or omission of a third party. The discharging vessel and any other responsible party may also be liable for environmental damage, in addition to cleanup expenses.

Maritime Products Liability

The Supreme Court created the tort of maritime products liability. This action may be based on negligence or strict liability. The Court has also adopted the rule that recovery may not be had where the only damage is to the product itself. The Supreme Court has not otherwise given guidance as to the substantive rules of maritime products law, such as whether it will follow Restatement of Torts Second or Third or some other approach.

Excerpts from Admiralty and Maritime Law by Professor Robert Force (Federal Judicial Center 2004).