In preparing for our 2015 presentation, we discovered that the 2014 version wasn't posted to our blog yet. And, thanks to the HSBA Real Property Section, we even have video!
Enjoy and stay tuned for video of tomorrow's presentation. Aloha.
As a teaser, we will cover Hawaii decisions from the last year involving land use, administrative appeals, quiet title, shoreline, reg takings and condemnation, and preemption. We will also cover decisions from other jurisdictions which have an impact on Hawaii property law practice.
Today marks the 40th anniversary of the sinking of the M/V Edmund Fitzgerald on Lake Superior in 1975. It sank in rough weather, taking with it the lives of 29 officers and crew. Commemorative events are outlined here.
With this anniversary and with the sinking of the M/V El Faro last month, it seemed timely to outline the marine casualty investigation roles of the U.S. Coast Guard and the National Transportation Safety Board. The agencies have overlapping authorities to investigate marine casualties and they have entered a Memorandum of Understanding regarding their independent roles in a marine casualty.
Typically, the U.S. Coast Guard investigates all marine casualties but some investigations trigger NTSB involvement. Under 49 U.S.C. 1131, the NTSB has authority to investigate:
a major marine casualty (except a casualty involving only public vessels) occurring on or under the navigable waters, internal waters, or the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988, or involving a vessel of the United States (as defined in section 2101 (46) [1] of title 46), under regulations prescribed jointly by the Board and the head of the department in which the Coast Guard is operating.
"Major marine casualties" are defined by regulation (49 C.F.R. 850.5) and the current regulation states:
(e) Major marine casualty means a casualty involving a vessel, other than a public vessel, that results in—(1) The loss of six or more lives;(2) The loss of a mechanically propelled vessel of 100 or more gross tons;(3) Property damage initially estimated as $500,000 or more; or(4) Serious threat, as determined by the Commandant and concurred in by the Chairman, to life, property, or the environment by hazardous materials.
The NTSB has appellate review over decisions of the U.S. Coast Guard with regard to merchant marine licensing which can lead to unusual court decisions like, Collins v. National Transportation Safety Board. Collins is Admiral Thomas Collins, then Commandant of the U.S. Coast Guard.
In Collins, the D.C. Circuit Court of Appeals reviewed an administrative appeal from a proceeding before a Coast Guard Administrative Law Judge. The ALJ below found that a licensed mariner committed misconduct leading to a collision in Miami Harbor. The ALJ suspended the mariner's license for five months. The mariner appealed to the Commandant of the U.S. Coast Guard who affirmed the decision. The mariner then appealed to the NTSB under 49 U.S.C. 1133 which reversed the Commandant's decision. The Coast Guard appealed to the D.C. Circuit Court of Appeals.
As is common with judicial review of administrative decisions, the court wanted to provide the executive branch with "deference" on matters that the agencies were better suited to judge (like mariner misconduct). This case was unusual because the court had to decide which agency was entitled to deference: the U.S. Coast Guard or the NTSB.
The court held that the U.S. Coast Guard's interpretation of the regulations at issue were entitled to deference both by the court and the NTSB.
Back to the Edmund Fitzgerald, the National Transportation Safety Board report published its findings in a report and the abstract of the report stated:
About 1915 EST on November 10, 1975, the Great Lakes bulk cargo vessel SS EDMUND FITZGERALD, fully loaded with a cargo of taconite pellets, sank in eastern Lake Superior in position 46 59.91 N, 85 06.61 W, approximately 17 miles from the entrance to Whitefish Bay, MI. The ship was en route from Superior, WI, to Detroit, MI, and had been proceeding at a reduced 3 speed in a severe storm. All the vessel’s 29 officers and crewmembers are missing and presumed dead. No distress call was heard by vessels or shore stations. The Safety Board considered many factors during the investigation including stability, hull strength, operating practices, adequacy of weathertight closures, hatch cover strength, possible grounding, vessel design, loading practices, and weather forecasting. The National Transportation Safety Board determines that the probable cause of this accident was the sudden massive flooding of the cargo hold due to the collapse of one or more hatch covers. Before the hatch covers collapsed, flooding into the ballast tanks and tunnel through topside damage and flooding into the cargo hold through nonweathertight hatch covers caused a reduction of freeboard and a list. The hydrostatic and hydrodynamic forces imposed on the hatch covers by heavy boarding seas at this reduced freeboard and with the list caused the hatch covers to collapse. Contributing to the accident was the lack of transverse watertight bulkheads in the cargo hold and the reduction of freeboard authorized by the 1969, 1971, and 1973 amendments to the Great Lakes Load Line Regulations.
The tale was memorialized in a song by Gordon Lightfoot which, in full disclosure, has been hummed or sang on every ship I have ever sailed on. As the song reminds us, the sea is, and always has been, an ever present danger to sailors worldwide.
This blog is for informational purposes only. By reading it, you and I do not form an attorney-client relationship. If you want legal advice, retain an attorney licensed in your jurisdiction.
This blog is not sponsored by my firm, nor is it approved by my firm, or our clients. The opinions expressed here are my own.
