Page 24: of Marine News Magazine (May 2016)

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COLUMN INSURANCE

Less is More in Post-Casualty Interviews

When it comes to casualty investigations, statements which may appear to be innocent and straightforward can be interpreted completely differently by investigators.

By Randy O’Neill

Vessel collisions on America’s busy further proposed a 12-month outright suspension of the inland waters have been a fact of life towboat captain’s license in accordance with 46 USC 7703.

for a very long time. With towboats,

POLOGIES ON T ELP barges, ferries, oceangoing vessels and A D ’ H recreational vessels all jockeying for po- The towboat’s owner did not agree with the Coast sition in limited space, collisions, and Guard’s conclusion and license suspension proposal, even more near misses, are bound to claiming in its Answer and Counterclaim to the tanker happen. Most of these incidents involv- owner’s $3 million civil suit for damages that the ship’s ing professional mariners do not lead to pilot “violated one or more of the U.S. Inland Navigation

O’Neill suspension and revocation proceedings Rules or other statutes or regulations involving marine safety against the involved U.S. Coast Guard licensed mariners, or navigation thereby invoking the Pennsylvania Rule, requir- but depending on the human and/or ? nancial cost associ- ing plaintiffs to prove that those faults could not have been the ated, some do. In many of those more serious casualties, cause of the collision.” the course of the proceedings is established very early on, While the two companies were litigating the case in civil usually when the ? rst verbal statements are provided to court, the towboat’s captain emerged as the key ? gure in authorities responding to the accident scene. the case. The fact that the Coast Guard seemingly con-

The collision case we will review here occurred several curred with the tanker company’s position that he and his years ago but this type of incident would likely evolve the ? otilla were responsible for the collision made a successful same way if it occurred today. license defense not only crucial to his ability to keep his license and continue working for the next year, but also to

P P his company’s attempt to prevail in the $3 million civil ac-

ASSING ERILS

The facts of the case are fairly common. Our policy- tion brought against it as a result of the collision. holder was piloting a towboat pushing a ? otilla of barges The key question was: Why did Coast Guard investigators downstream when he encountered an inbound tanker. The so quickly conclude that the collision was the fault of the tow- captain of the towboat communicated with the state pilot boat captain to the point that they immediately proposed a aboard the towboat to arrange a port-to-port passing. All 12 month suspension? The simple answer was that the shak- was progressing well until about two minutes later when en captain repeatedly apologized for his actions. Speci? cally, the towboat’s captain contacted the pilot of the tanker in- immediately following the collision, in an attempt to explain forming him that his tow was breaking his range. The pilot what happened to Coast Guard investigators, he waived his aboard the tanker asked if he needed to take any actions to right to be represented by counsel and gave a lengthy and allow for a safer pass and, after a brief hesitation, received a rambling verbal description of what had happened, and in- negative response. About a minute later, the towboat’s ? o- terspersed his monologue with several expressions of regret tilla swung into the path of the tanker which collided with for his role in the collision. As a result, the Coast Guard in- several of the barges resulting in three of them sinking. vestigators interpreted his apologies as an admission of fault,

Consequently, it was alleged that the towboat’s captain leading to their 12-month suspension proposal. By the time failed to properly communicate to the tanker’s pilot that his license defense attorney was ? nally contacted, assigned, his tow had swung out too far into the path of the inbound arrived on the scene and interviewed him, the captain had ship, limiting the vessel’s options to avoid the collision. talked himself and his company into a pretty tight spot.

That allegation and subsequent interviews led the Coast

Guard to bring a negligence charge against the towboat’s T L T THE EGAL IDE URNS captain for not taking all necessary actions to avoid the col- While his verbal statement could not be retracted, lision as required by Navigation Rule 8. The Coast Guard he now worked closely with his own maritime attorney

May 2016

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