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claim deemed to have been caused by the negligence of claimant or those acting in his behalf. Under this section claimant, his agent, or his employee, is required to act as would a reasonable, prudent man under similar circumstances in taking proper precautions to safeguard claimant's property.

The negligence provisions of section 21040 have been applied where a claimant, faced with alternative courses of action in the protection of his property, has taken that course which, while more convenient, was also more laden with risks. Thus, a claim was disallowed where claimant, for reasons of convenience, left several hundred dollars worth of personal property in the back seat of his automobile although it would have been possible for these items to have been secured in claimant's locked apartment. 5

A provision of the Navy Personnel Claims Regulations which claimants should be made aware of in this age of working wives is that embodied in section 2104p. This section prohibits payment for personal property which is normally used for business or profit. In one case, it was necessary for the Judge Advocate General to deny a portion of a claim for professional attire worn by the actress wife of a Navy civilian employee.46 Thus, a claimant would be well advised to secure private insurance for property which might be deemed to come within the purview of this section.

Frequently, one of the most difficult claims to substantiate under the requirements of the Navy Personnel Claims Regulations is that of theft. Section 2104r sets out in detail the evidential requirements which must be met before such claims can receive favorable consideration. First of all, it must be conclusively established that a larceny, burglary, or housebreaking actually did occur. The usual rules of evidence and criminal law are applied in making such determination. This section is intended to prohibit payment of those claims for personal property allegedly lost through what can only be described as a "mysterious disappearance", as distinguished from an established act of theft. It is apparent, therefore, that the mere fact that claimant alleges he has been relieved of possession of certain personal property does not in itself constitute sufficient evidence upon which to base reimbursement to him by the government.

Even though it is clearly established that claimant's property has been removed from his possession through commission of a criminal act

of theft, claimant is further required under section 2104r to demonstrate that he exercised due care in the protection of the stolen property. The “due care" test of this section is applied in conjunction with the negligence test of section 21040, discussed above. Thus, if claimant has demonstrated a lack of due care by leaving his property unsecured, exposed to view, etc., then section 2104r and section 21040 must both be applied to deny any claim arising under these circumstances.

Section 2104t of the Navy Personnel Claims Regulations prohibits payment for property which is acquired, possessed, or transported in violation of law or other regulations. This section is intended to prohibit payment not only for items which are possessed or transported in violation of statutory law, but of property possessed or transported in violation of competent Navy regulations or instructions. Thus, claims must be denied for alleged loss of tools or other items of personal property used by Navy civilian shipyard employees if such tools have been stored or possessed in violation of local Shipyard Instructions pertaining to identifying marks, authorized storage locations, or other security measures.*7 Also, it is sometimes necessary to deny claims for loss of firearms which have been possessed contrary to local regulations.

With the exception of claims for damages and losses occurring during a period of overseas shipment, the general rule, stated by section 2104i of the Navy Personnel Claims Regulations is that claims for motor vehicles "... will ordinarily not be paid”. This section must be read, however, in conjunction with section 2128, which specifically provides for certain motor vehicle claims to be considered as “meritorious" where such claims are“... not otherwise provided for or prohibited ...." by the Navy Personnel Claims Regulations. For purposes of these sections, 2104i and 2128, the Judge Advocate General has held that motor scooters, motor bikes, motor cycles, and other similar contrivances, in addition to automobiles, are to be considered as "motor vehicles". 48

The language of section 2128 is not only limited in its express provisions, but has been very narrowly construed in prior adjudications by the Judge Advocate General. For the most part, claims paid under this section have been limited to those arising out of tropical typhoons, civil disturbances, and natural disasters in

(Continued on page 137) 47. JAG Itr 144.1:mfl of 2 Aug 1964. 48. JAG Itr 144.1:kaj ser 6567 of 9 Nov 1964.

45. JAG Itr 144.1:kmo ser 8496 of 6 Dec 1963. 46. JAG Itr 144.1:kmo of 28 Oct 1964.

MARITIME COLLISION – DEFENSES AND DISTRIBUTION OF DAMAGES

COMMANDER BERTRAM R. CARRAWAY, USN*

The admission of default in the performance of one's
occupation is a rare incident. Everyone almost ration-
alizes the blame over to the other fellow.'

Judge Richard H. Chambers

I

LIABILITY BASED ON FAULT

TH

tory negligence is a complete bar to recovery, whereas in admiralty law the defense serves only to reduce the amount of the recovery in personal injury cases. The rule of equal division of damages applies in collision cases.

Liability in collision cases is generally based either on negligence or on violation of the rules of the road or other statutory authority. These are not generic categories and are often overlapping. Statutory faults may constitute negligence and vice versa.

II

STATUTORY FAULT

In 1874 the Supreme Court of the United States established the “Pennsylvania Rule". 3 Mr. Justice Strong delivered the opinion of the court and laid down the rule in the following words:

HE RECOVERY OF compensation or damages from a tortfeasor or other responsible party is usually based on a negligent act or omission. Unless the responsible party is chargeable with negligence, a legal or civil wrong has not been committed.

For all practical purposes this statement is correct. However, there are certain areas of the law where liability is imposed without fault. Some of these instances are based on statute and some can be traced to the common law adopted by this country during its infancy. In admiralty the doctrine of seaworthiness ? is a perfect example of liability without fault.

Most of us have, at one time or another, caused injury to another or damage to his property. Incidents of this nature occur on the athletic field, at work, on the highways and on weekend boating excursions. Fortunately, we seldom have to explain or defend our actions in a court of law.

For those incidents which occur on the high seas and the navigable waters of the United States, the respective rights, duties and obligations are determined by the general admiralty and maritime law. Although admiralty law and common law are similar in many respects, there are numerous doctrines peculiarily applicable only in admiralty, some of which are directly opposed to their common law counterparts. For example, the common law defense of contribu

It must be conceded that if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration. The liability for damages is upon the ship or ships whose fault caused the injury. But when, as in this case, a ship at the time of collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributing cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.

In essence the rule creates a rebuttable presumption that the statutory fault was a contributory cause of the collision. To escape liability the vessel must show not only that the fault did not but also that it could not have contributed to causing the collision.

Since it is only a rebuttable presumption, the "rule" is not absolute. The burden of proof is not shifted, as it is generally true that the burden of proof never shifts during the course of the trial. What is affected by the presumption is the burden of going forward with the evidence. If this burden is not met then the vessel charged with a statutory fault will be liable for at least half the damages resulting from the collision.

*Commander Carraway is presently assigned to the Admiralty and
Shipping Section, U.S. Dept. of Justice, New York City. He holds
the LL.B. degree from the University of Miami and is a member of
the Florida bar and several Federal bars, including the Court of Mili-
tary Appeals and the Supreme Court.
1. City of Long Beach v. American President Lines, Ltd., 223

F. 2d 853, 855 (9th Cir. 1955); 1955 A.M.C. 1548.
2. For an excellent article on the doctrine of seaworthiness see

Evans, Maritime Personal Injuries and the Doctrine of Seaworthiness-A Matter of Status, 19 JAG J. 13 (Sept-Oct 1964).

3. The PENNSYLVANIA, 86 U.S. (19 Wall.) 125 (1874). 4. Id. at 136.

The Pennsylvania Rule has been frequently applied in cases involving fog; when moderate speed is violated; when a vessel fails to stop her engines upon hearing the fog signal of another forward of her beam; or when a false signal is sounded indicating that a vessel is lying still when in fact she has headway. Other principal applications are: failure to sound required fog signals; failure to show proper lights or showing improper lights; improper lookout; failure to sound required alarm signals; and violation of the meeting, overtaking, crossing or narrow channel rules.

III

DISTRIBUTION OF DAMAGES Of particular interest to the mariner, and perhaps of most interest to a Commanding Officer, Master or other mariner in charge of a naval vessel, is the liability resulting from an incident caused by the vessel. When a collision occurs it is a rare instance when only one ship suffers damage. Which shipowner is responsible for the damage? Is he responsible for the damage sustained by his vessel only, the other vessel only, or both?

To answer these questions a court must determine where the fault lies. If only one vessel was at fault then it is only reasonable to expect that the vessel at fault should not only absorb its own damage but that it should also pay the collision costs and expenses sustained by the innocent vessel.

If one vessel is solely at fault there is no apportionment of damages and the responsible ship bears the burden for all damages. However, cases of this nature are usually the exception to the rule. The majority of collisions are caused by faults committed by both vessels, although not necessarily of the same magnitude.

Most maritime powers have adopted the 1910 Brussels Collision (Liability) Convention. Article 2 thereof provides that if the collision is ac5. Subject to the owner's right to limit liability as provided for by

cidental or if the cause of the collision is in doubt, the damages shall be borne by those who have suffered them. In other words, if the collision is the result of inevitable accident or inscrutable fault, each vessel shall pay its own damage.

Article 3 provides that if the collision is caused by the sole fault of one of the vessels, liability for the damage to both vessels shall attach to the one which has committed the fault.

Article 4 provides that if two or more vessels are in fault the liability of each vessel shall be in proportion to the degree of the faults respectively committed.

Although the United States is not a party to the Brussels Convention the provisions of Articles 2 and 3 are identical to the law as applied by the American courts. However, in cases where there are degrees of fault attributable to more than one vessel, our courts apply the rule of mutual fault and divide the total damage between the vessels in equal shares. Although normally collision cases only involve two vessels there are occasions where three or more vessels are involved. In these multi-ship cases if all are in fault then each is liable for its respective share of one-third, one-fourth, etc., of the total damage. The reported record seems to be six and each vessel was responsible for one-sixth of the damage.? In that case there were only two owners of the six vessels involved and five of the vessels were owned by the same party. As in most collision litigation, the vessels were libeled in rem, that is, each vessel is an entity and considered separate and apart from the personal liability of her owner and each vessel is responsible for damages caused or committed by her. Accordingly, the owner of the five vessels paid five-sixths of the total damage.

The courts have not been entirely satisfied with the rule of equal division of damages and some attempt has been made to modify the rule. In the recent case of N.M. Paterson & Sons, Ltd. v. City of Chicago, the District Court found the steamship TORONDOC two-thirds at fault and the bridge owner one-third at fault. Accordingly, the District Court assessed damages in accordance with the respective proportion of fault, stating:

Furthermore, the court remains of the opinion that it is not bound to divide damages equally in a case where it has found a collision caused by the fault of both parties to have been attributable in greater 6. The Senate Committee on Foreign Relations held hearings Janby 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. 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 favor.14

46 U.S.C. 183-189 and Supreme Court Admiralty Rules 51-55. Although beyond the scope of this article, limitation of liability, when allowed, in general limits the owner's liability to the value of the vessel after the collision plus pending freight. See Baer, Admiralty Law of the Supreme Court, 154–180 (1963).

uary 10-14, 1938, and reported the Convention favorably with

proposed reservations. However, the Senate did not act.
7. The NORWICH VICTORY, 175 F. 2d 556 (3d Cir. 1949), cert.

denied, 338 U.S. 871 (1949).
8. 209 F. Supp. 576 (N.D. III. 1962), 1962 A.M.C. 2215.

degree to the delict of one than to that of the other, and where the court is able to determine and has determined that specific proportions which the faults

of both bear to the occurrence and the total damage. On appeal the appellate court 10 reversed the lower court by holding:

The District Court erred in invoking the doctrine of comparative negligence. Its findings of inequality of degree of fault between the Torondoc and the city, if correct, would have afforded no basis for departing from the equal-division rule."

Although many of the lower courts recognize the inequity that sometimes results in its application, it is clear beyond cavil that the courts will apply the equal division of damages until the rule is changed either by the Supreme Court or by the Congress.

IV

RELIEF FROM LIABILITY

A. MAJOR-MINOR FAULT

As can be seen, collision damages resulting from faults committed by both vessels must be divided equally between the two colliding vessels. Patently such division would be unfair where one vessel was substantially at fault and the other at fault only in a minor degree, or in some technical sense.

To mitigate the harshness of equal division of damages the courts have enunciated the doctrine of major-minor fault. The reason for the rule is obvious—American law requires an equal division of damages in cases where both are at fault. If one vessel is grossly and inexcusably at fault and the other vessel's faults are slight, it would appear unjust that each share the same responsibility. Under such circumstances the courts may apply the major-minor fault rule and thus, in effect, cast sole responsibility on the grossly-at-fault vessel. To accomplish this the courts have in general utilized three avenues regarding the vessel whose faults are minor: (1) they will not inquire too closely into her conduct and will resolve any doubt in her favor; or (2) hold that her conduct was not contributory; or (3) hold that a slight fault will be wholly disregarded.12

The major-minor fault rule is said to have been first established in The CITY OF NEW YORK,18 where the Court said:

Where fault on the part of one vessel is established 9. Id. at 583, 1962 A.M.C. at 2217. 10. 324 F.3d 254 (7th Cir. 1963), 1963 A.M.C. 2471. 11. Id. at 258, 1963 A.M.C. at 2477. 12. Griffin, Collision $ 224 (1949). 13. 147 U.S. 72 (1893).

The major-minor fault rule has been applied in the following cases: Failure to have a lookout, Koch-Ellis Marine Contractors, Inc., v. Chemical Barge Lines, Inc., 224 F.2d 115 (5th Cir. 1955); excessive speed, Harbor Oil Transportation Co., V. The PLATTSBURGH SOCONY, 151 F.2d 708 (2d Cir. 1945); changing course without giving a signal, Green v. Crow, 243 F.2d 401 (5th Cir. 1957); excessive speed, improper lookout and inadequate signal, Rodi v. Dean, 138 F.2d 309 (7th Cir. 1943). In the case The MARTIN KEHOE, 168 F.2d 219 (2d Cir. 1948), the court found that the presence of a lookout would not have avoided the collision; moreover, the court excused KEHOE's failure to blow a proper slip whistle by applying the majorminor fault rule.

In each of the above cases the court either found that the specific fault could not be considered a proximate cause of the collision, or that it would not have prevented the collision, or that the fault occurred in extremis. In each case that the court applied the major-minor rule, doubt was resolved in favor of the minor of. fender, slight fault was held not contributing to the collision, or a slight fault was disregarded completely.

The rule excusing error in extremis may be regarded as one manifestation of the majorminor fault principle. In substance it provides that when a vessel is placed in a situation of peril not of her own making and has done that which at the time and under the stress of peril seemed at the moment to her navigator to be the best action, she will not be charged with fault by second guessing or Monday morning quarter-backing after the event. In such circumstances an honest error in judgment is not to be imputed as a fault.

Additional methods used by the courts to escape equal division of damages are: to find no violation or no violation at the time of collision; to find no causal connection between the fault and the collision; and to find that even though one vessel was at fault, the other had ample opportunity to observe the situation and avoid collision, or as this is known in the law, "the last clear chance doctrine." 14. Id. at 85.

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It is not to be inferred that courts are prone to relieve a vessel of fault if she is only at fault in a lesser degree. Although courts are more and more excusing and may overlook minor statutory faults, such cases are still the exception and are not the rule. Only in the unusual case will the court excuse a vessel for a statutory fault. The Pennsylvania Rule is today the easiest peg for a libellant to hang his case on and where a respondent cannot or does not meet the heavy burden of coming forward with exonerating evidence the inevitable result will be at least an equal division of damages.

B. INSCRUTABLE FAULT

As indicated above, liability for damage resulting from collision is determined by fault committed by or otherwise chargeable to the respective colliding vessels.

Under certain circumstances a collision may result from an Act of God or may otherwise occur without fault on either vessel. In such event the problem that immediately arises is how the resulting damages shall be resolved. Collisions without fault can and do arise under almost every conceivable factual situation. Colliding vessels may both be navigating, or they may be properly moored or anchored. One vessel may be moored or anchored and the other vessel navigating. Collisions may occur during daylight or darkness and during fair weather or foul.

When a collision occurs for which liability is indicated, there are two principles recognized in admiralty which will absolve a vessel from responsibility. The first and probably the lesser of importance of the two is inscrutable fault. It has been defined as a case where the evidence is so conflicting that it is impossible to determine what direct or specific acts caused the collision.

The landmark case and probably the leading case on inscrutable fault is The JUMNA,15 where the court said:

admiralty proctors as establishing the definition of inscrutable fault and is most often cited for that proposition. It is also included in most admiralty textbooks for the same purpose.17

As might be suspected, the actual application of the principle of inscrutable fault is rare. Courts have been reluctant to apply the principle and usually have been able to find specific fault. At other times, the moving party has been unable to overcome an applicable presumption of negligence. One writer has expressed the view that its rarity of application indicates an abhorrence by the Court to admit inability to ascertain fault. 18

In the early administration of maritime law in this country the damages arising from a collision resulting from inscrutable fault were divided equally as in cases where both vessels were in fault. 19 At that time, there was little advantage to show inscrutable fault. Apparently it was believed that since fault had been committed the damages should be shared by both vessels. The only difference being that on the one hand the faults could be ascertained and on the other hand the faults were there but it was impossible to determine exactly where they fell.

For the past one hundred years or so, however, in those rare instances where the doctrine of inscrutable fault has been applied, each bears his own damages. The basis for the modern day rule is that the mere happening of a collision does not give rise to a right of action for damages resulting therefrom. The right to damages is based on negligence causing or contributing to the collision. In those cases of statutory fault under the Pennsylvania Rule, a presumption of cause arises and the vessel, if she can, exonerates herself. If not, the right of recovery is based not upon the fact of collision, but upon the presumption of contributing negligence.

The importance of coming within the ambit of inscrutable fault is well recognized. Although the defense is frequently asserted, only in the most unusual circumstances is the defense allowed. Undoubtedly in this day and age with today's more complete navigational rules and regulations, with the modern navigation and communication aids, we can expect to see it being allowed even less frequently. Of considerable importance also is the ingenuity of the modern day admiralty proctor and the relative ease with which he can examine the witnesses from 17. Sprague & Healy, Cases on Admiralty 725 (1950); Morrison &

Stumberg, Cases on Admiralty 489 (1954); Gilmore & Black

Admiralty 396 (1957). 18. Haghes, Admiralty Law 312 (1920). 19. The JOHN HENRY, 13 Fed. Cas. 684 (No. 7350) (D.C. Me. 1860).

In the case at bar we are unable upon the testimony before us to specify any particular fault, to put our finger upon any act or omission and assert that to it the accident was attributable. Fault may exist, but we are unable to discover it; it is inscrutable. Where the evidence is so conflicting that it is impossible to determine to what direct and specific acts the collision is attributable, it is a case of damage arising from a cause that is inscrutable.16

Although the case was not conclusively decided as one falling within the ambit of inscrutable fault, the case is considered by most 15. 149 Fed. 171 (2d Cir. 1906). 16. Id. at 173.

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