Page 70: of Marine News Magazine (November 2011)

By Randy O?NeillUnfortunately, vessel collisions on America?s busy (but too often over- looked) inland waters have been a fact of life for a very long time. With tow- boats, barges, ferries, oceangoing ves- sels and recreational vessels all jockey- ing for position in limited space,many collisions, and even more near misses, are bound to happen. And while, thankfully, most of these inci- dents involving professional mariners do not lead to suspension and revoca- tion proceedings against the involved licensed mariners, depending on thehuman and/or financial cost associat-ed, some do. In many of those more serious cases, the course of the pro- ceedings is established very early on, usually when the first verbal state- ments are provided to authorities responding to the accident scene. One such collision occurred almost 10 years ago, but the type of incident involved would likely play out the same way if it happened yesterday? ortomorrow. PASSINGPROBLEMS The facts of the case are not at all unusual. Our policyholder was pilot- ing a towboat pushing a flotilla of 20 barges downstream on a river in the American Northwest when he encountered an inbound tanker. The master of the towboat communicated with the tanker?s state pilot to arrange a port-to-port passing. All was well until about two minutes later whenthe towboat?s master contacted the pilot of the tanker informing himthat his tow was breaking his range. The state pilot aboard the tanker asked if he needed to take any actionsto allow for a safer pass and, after a brief hesitation, received a negative response. About a minute later, the towboat?s flotilla swung into the path of the tanker which collided with sev-eral of the barges resulting in the sinking of three of them. Consequently, it was alleged that the towboat?s master failed to proper- ly communicate to the tanker?s pilot that his tow had swung out too far into the path of the inbound ship, limiting the vessel?s options to avoid the collision. That allegation and sub- sequent interviews led to the Coast Guard bringing a negligence charge against the towboat?s master for not taking all necessary actions to avoid the collision as required by Navigation Rule number 8. The Coast Guard further proposed a 12- month outright suspension of thetowboat master?s license in accor- dance with 46 USC 7703.THEBLAME GAMEBEGINSNot surprisingly, the towboat?s owner did not agree with the Coast Guard?s conclusion and license sus- pension proposal, claiming in its Answer and Counterclaim to the tanker owner?s $3 million civil suit for damages that the tanker?s pilot ?vio- lated one or more of the U.S. Inland Navigation Rules or other statutes or regulations involving marine safety or navigation thereby invoking the ?Pennsylvania Rule,? or, in other words, requiring plaintiffs to prove that those faults could not have been the cause of the collision?. While the two companies were fighting it out in civil court, the tow- boat?s master emerged as the lynchpin in the case. The fact that the Coast Guard had apparently agreed with the tanker company?s position that he and his flotilla were responsible for the collision made his successfullicense defense not only crucial to his ability to continue working for the next year, but also to his company?s attempt to prevail in the $3M civil action brought against it as a result of the collision. The key question was: Why didCoast Guard investigators so quickly conclude that the collision was the faultof the towboat master to the point where they immediately proposed a 12 month suspension?The simple answer was that the master repeatedly apologized for his actions. Specifically, immedi- ately following the collision, in an attempt to explain what happened toCoast Guard investigators, he waived his right to engage counsel and gave a lengthy and rambling verbal descrip- tion of his account of what had hap-pened, and interspersed his mono-logue with several mea culpas for being a party to the collision. Consequently, the Coast Guard investigators interpreted his contri- tion as an admission of fault, leadingto their 12-month suspension pro- posal. By the time his license defense attorney was finally contacted,assigned, arrived on the scene and interviewed him, the towboat?s mas- ter had talked himself and his compa-ny into a pretty tight spot. BATTLING ONTWOFRONTS While his verbal statement could 70MNNovember 2011Loose Lips Sink Ships ... & Careers! MN#11 (66-81):MN 2011 Layouts 10/31/2011 11:21 AM Page 70