There’s No Such Thing as a Routine Grounding

In past columns, the focus of our discussions has been primarily on maritime incidents such as collisions, allisions and groundings in which U.S. Coast Guard-licensed deck and engineering officers were subject to marine investigations and negligence changes, potentially leading to the dreaded “letter of complaint” against your U.S. Coast Guard issued credential(s) or endorsement(s). This month, we examine a grounding case in which indeed a 46 CFR 5.29 negligence complaint filing was made against the involved master requiring a vigorous license defense. What made this case different than most was the fact that because the charged master was serving as a pilot (independent contractor) at the time of the incident, he also had a significant professional liability exposure as a consequence of the grounding’s aftermath.

The Incident
The incident occurred while the master was piloting a vessel on a busy river in the western United States. The vessel needed to navigate around some large debris in the river caused by recent heavy rains, preventing it from turning to port and possibly damaging the bow thruster. So, after weighing anchor and confirming with the ship’s mate that the bow thruster was ready, the pilot ordered half starboard thruster with the concurrence of the ship’s captain and got underway very slowly. Shortly thereafter, the pilot ordered full starboard thrust and received acknowledgement from the mate.  Approximately five minutes later, the pilot ordered hard to starboard and dead slow ahead. In the next four minutes, sequential orders were given for slow ahead, half ahead, stop engines and slow astern.  The vessel was hard aground.
For almost the next hour, the pilot issued a series of engine and helm commands, both for the bow thruster and main engine, in an unsuccessful attempt to refloat the ship – all to no avail. The marine casualty was promptly reported, statements were given by the involved bridge crew and the ‘hurry-up-and-wait’ period ended rather routinely.

The Investigation & ALJ Proceedings
In the ensuing USCG investigation of the grounding, examination of the pilot’s plan to swing the ship to starboard using only the bow thruster until it was properly positioned to engage the main engine was the subject of much debate. The timely execution of his orders by the ship’s mate, particularly the order of full starboard thrust, eventually became a major point of conflict between the pilot and the mate. Specifically: was the order of full starboard thrust given and acknowledged by pilot and mate, respectively?
Bottom line: The ship grounded on a shoal admittedly known to the pilot who contended that, had his orders been executed as given, the incident would have never taken place. Incomplete or non-existent recordings of the bow thruster orders and the absence of a ‘rate of turn indicator’ on the ship added to the problem of piecing together the sequence of events leading to the grounding.
After a lengthy Suspension & Revocation proceeding in administrative court, the Administrative Law Judge (ALJ) concluded that there were too many gaps in information to effectively prove negligence on the pilot’s part to merit a suspension, but sufficient evidence to issue him a Letter of Warning (LOW) and a three-month suspension on probation for his role in the grounding.
The pilot reluctantly accepted the USCG sanctions and now prepared to defend himself against $2 million civil suit filed against him by the ship’s owners. While the damage to the ship as a result of the grounding was minimal and, after being refloated, was promptly put back into service, the now complicated journey of its cargo of corn products was a different story.  

Damages & Consequences
After 1,500 tons of corn was lighted, barged, trucked and ultimately reunited with its ship at a port over 50 miles away, the shipping company sued the pilot alleging that his actions in the grounding incident led it to incur significant expenses to remove and transport its cargo to a port for reloading back onto its ship. And with the Coast Guard’s Letter of Warning for his actions in the grounding available to the shipper’s plaintiff attorneys, the pilot and his personal assets were bucking a pretty strong tide.
While it is unusual for licensed deck and engineering officers to be sued personally as the result of a marine casualty, state and, to a lesser degree, harbor and docking pilots have a real exposure in that regard.
Not surprisingly, while the administrative court proceedings moved along relatively quickly, this particular civil case is slowly working its way through the deposition stage and is unlikely to see a courtroom or settlement discussion for months, if not years. Sadly, the pilot defendant’s defense costs, regardless of whether or not he prevails, will be enormous. While he was prudent to have purchased professional liability insurance with both civil/legal defense and indemnity components as part of his license defense package, in today’s world of inflated jury awards, it’s questionable whether his $1 million policy limit will be enough to both compensate his attorney and satisfy the plaintiff’s demands.
Mariners with similar exposures should be mindful that there are options available to them to protect their assets, as well as their credentials, and should explore those options when reviewing their insurance portfolios.

(As published in the May 2014 edition of Marine News - http://magazines.marinelink.com/Magazines/MaritimeNews)