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2nd Circuit - Maritime Rescue Doctrine and Seaman's Injury

One of the joys of blogging is to be constantly on the hunt for the jewels of jurisprudence.  The fun opinion!  A recent admiralty case from the Second Circuit Court of Appeals actually uses the word lubberly.

The case is Barlow v. Liberty Maritime and the opinion can be found here.  Read the footnotes and you will learn the definition of moor, fore, aft, paying out, spring lines, marry, tugs, and breast lines.

A very, VERY, experienced mariner was working on a ship that was having some difficulties with its mooring line while at a grain terminal in the Amazon River.  Despite his license, he was working as a Third Mate onboard.  When the mooring line difficulty arose, the experienced Third Mate took charge of the situation, over the command of the Second Mate.  Apparently, the Third Mate thought the command was just a "polite request" and not an actual order, prompting the 2nd Circuit to note that "Directions from an officer to a subordinate in an emergency are not requests, but orders to be obeyed, however phrased."  The court cited to 46 U.S.C. 11501(5) which authorizes ship masters to confine disobedient sailors and put them on a 1000 calorie per day diet.  

Alas, says the 2nd Circuit, the Third Mate's effort to correct the mooring line situation resulted in the mooring line hitting him and causing him injury.

He brought suit for the various injuries he suffered under a negligence theory and unseaworthiness. The jury was charged with an instruction about actions in emergency, but the Third Mate wanted an instruction invoking the maritime rescue doctrine.  Under the Fourth Circuit's "maritime rescue" doctrine, an action would have to be wanton and reckless before any fault for the resulting injuries could be attributed to a claimant.  The trial court instructed the jury using the "emergency" doctrine which judges an action based on what a prudent seaman would do under similar circumstances.

The Fourth Circuit decision in Furka v. Great Lakes Dredge & Dock Co., Inc., 755 F. 2d 1085 (4th Cir. 1985) was cited as the most clear articulation of the rescue doctrine.  In that case, the Fourth Circuit court found that a claimant could not be contributorily negligent (thereby reducing his/her damage award) unless the rescue attempt was "wanton or reckless."  Other courts have followed suit or have similar rules.  Wharf v. Burlington N. R.R. Co., 60 F.3d 631 (9th cir. 1995); Grigsby v. Coastal Marine Serv. Of Tex., Inc., 412 F.2d 1011 (5th Cir. 1969).

The 2nd Circuit declined to follow Furka [circuit split dear readers] and held that under modern comparative negligence theories are not as harsh as contributory negligence ones that threatened a claimants recovery in toto and not just acting to be a reduction for comparative fault.

Under a reasonable seaman standard, there was proof to support the jury's assessment of 90 percent of fault to the claimant (which reduced his damages by that percentage) and the jury verdict was affirmed.

The jury has spoken. Tread carefully when your supervisors tell you to do something.  Especially in an emergency.

Commerce on Navigable Waters Issue Going to Supreme Court?

Can a state require a company to obtain permission to operate a vessel/business on a federal navigable waterway without violating the U.S. Constitution?  Or, in lawyer speak, 

Is the “right to use the navigable waters of the United States” recognized in the Slaughter-House Cases solely a right to navigate such waters or does it also encompass their use to operate a ferry or engage in other economic activity?

Washington state law requires that commercial ferries obtain a Certificate of Public Convenience and Necessity prior to operating on waters in the State.  Such certificates are associated with public utilities, common carriers and the like.  Since adopting the law, Washington has only issued one such certificate to a Lake Chelan ferry company.

A family seeking to start a Lake Chelan ferry company sought a certificate and was denied.  The existing permit holder objected, obviously, and the family was turned down.  

The family brought suit in federal court challenging the requirement to obtain the certificate.  The district court dismissed the complaint and the family appealed to the Ninth Circuit.

Late last year, the Ninth Circuit Court of Appeals held that the restriction did not violate the Privileges and Immunities Clause or the Fourteenth Amendment's Privileges or Immunities clause.  Opinion is here.

The panel affirmed in part and vacated in part the district court’s dismissal of an action in which plaintiffs challenged Washington statutes that require a certificate of “public convenience and necessity” in order to operate a ferry on Lake Chelan in central Washington state. Plaintiffs first alleged that the state laws abridged their right to use the navigable waters of the United States, in violation of the Privileges or Immunities Clause of the Fourteenth Amendment. The panel held that the Privileges or Immunities Clause of the Fourteenth Amendment does not encompass a right to operate a public ferry on intrastate navigable waterways and affirmed the district court’s dismissal of this claim.  Plaintiffs also challenged the certificate requirement as applied to the provision of boat transportation services on Lake Chelan solely for patrons of specific businesses. As to this claim, the panel found that the district court properly abstained from deciding the issue under the doctrine set forth in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), but that the district court should have retained jurisdiction instead of dismissing the claim. Therefore, the panel vacated and remanded the second claim with instructions that the district court retain jurisdiction over the constitutional challenge.

The Ninth Circuit found that the plaintiffs had the right, under the Constitution, to navigate on the lake, but not the constitutional right to operate a ferry on the lake.

Not surprising result, as the Ninth Circuit has repeatedly allowed states to regulate in navigable waters. See my post on UFO Chuting v. Smith case.  The U.S. Supreme Court didn't take cert in that case, despite our amicus brief in support of the petition which said that the states authority to regulate vessel operations in navigable waters was not absolute.

The plaintiffs, represented by the Institute for Justice, filed a cert application with the U.S. Supreme Court. The Question Presented is:

In the Slaughter-House Cases, this Court held that one of the rights of national citizenship protected by the Privileges or Immunities Clause of the Fourteenth Amendment is the “right to use the navigable waters of the United States.” 83 U.S. (16 Wall.) 36, 79 (1873). Lake Chelan is such a body of water. Since 1929, however, the State of Washington has allowed only one ferry provider, a private company, to operate on the lake and has prohibited Petitioners James and Clifford Courtney from operating an alternative ferry.

The Courtneys filed this action alleging that the monopoly of ferry service on Lake Chelan abridges their right to use the navigable waters of the United States in violation of the Privileges or Immunities Clause. In affirming the dismissal of the Courtneys’ claim, the Ninth Circuit held that the clause protects only “a right to navigate the navigable waters of the United States” – not “to utilize those waters for a . . . specific professional venture” or “to operate a particular business using” them. Because the Courtneys’ proposed use of Lake Chelan is “an activity driven by economic concerns,” the Ninth Circuit concluded, it is not protected by the Privileges or Immunities Clause.

Is the “right to use the navigable waters of the United States” recognized in the Slaughter-House Cases solely a right to navigate such waters or does it also encompass their use to operate a ferry or engage in other economic activity?

Stay tuned true believers.  We love to see the words navigable waters and Slaughterhouse Cases in the same case.