This makes it seem as if the lawsuit is based only on information already made public, that is the report regarding the reefers.
By failing to investigate or fix an inconsistent power supply that set off alarms in refrigerated containers hours before the ship departed, the owners were “grossly and potentially criminally negligent,” the claim says. “In no way should their liability be limited.”
At this point Baltimore is just throwing everything including the kitchen sink into their complaint. Obviously, they allege the two principal sources of liability: unseaworthiness and negligence. They probably have recklessness, violation of statute, and strict liability claims in there too.
Anyone with good internet access can open an account on, Pacer, the court system’s website, and download the docket in the case, the pleadings, motions, supporting affidavits, and the court’s pretrial orders.
It’s been quite awhile since I’ve been on Pacer, so I don’t recall the costs, or exactly how it works.
Pacer would be a good source of info for John as he writes articles about the proceedings.
Pacer…man oh man its been a while since I had to spend hours and hours on that site hunting down case law. A huge trove of incredible info and depth for sure but when you are 22, its a hungover Wednesday at 8am and your boss is making you hunt down partlow chart arbitration it gets old quick!
I’m not an expert in legal maters but apparently to file a civil lawsuit the standard is the claim must be reasonably plausible and have sufficient factual basis.
A seaworthy ship presumably wouldn’t suffer a blackout while under pilotage.
Edit: The NYT reported that the unseaworthness claim is based on the AP report
While the ship was docked in Baltimore, alarms went off on some of its refrigerated containers, indicating an inconsistent power supply, according to the person with knowledge of the situation who was not authorized to publicly comment and spoke to AP on condition of anonymity.
The concept of Res Ipsa Loquitur is not an exact fit, but it’s close enough for our purposes.
Although res ipsa loquitur is a land based negligence concept, one can think of unseaworthiness in a similar way:
seaworthy ships do not generally lose power and steering and knock down bridges.
There is also a concept called “transitory unseaworthiness.” A temporary and brief condition can make a vessel unseaworthy at a critical moment of time.
When Dali lost power and steering she became unseaworthy at that moment, even if we were to assume that she was seaworthy when she left the dock.
From the Cornell Law website:
Res ipsa loquitur is Latin for “the thing speaks for itself.”
In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.
To prove res ipsa loquitur negligence, the plaintiff must prove 3 things:
Transitory Unseaworthiness:
Looking up the seminal Trawler Racer case, I am reminded that unseaworthiness differs from negligence in that it is a form of strict liability or “absolute liability” in admiralty. I have only copied the heading and syllabus of the court which briefly described the outcome. For those with greater interest, it’s easy enough to use the citations to look up and read the facts and reasoning of the court.
Blockquote Inc.
Argued: January 21, 1960
Decided: May 16, 1960
Syllabus
Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)
Mitchell v. Trawler Racer, Inc.
No. 176
Argued January 21, 1960
Decided May 16, 1960
362 U.S. 539
Syllabus
Opinions
Mitchell v. Trawler Racer, Inc., 362 U.S. 539(1960) Mitchell v. Trawler Racer, Inc.No. 176Argued January 21, 1960Decided May 16, 1960362 U.S. 539CERTIORARI TO THE UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUITSyllabus**In an action by a seaman who was a member of the crew of a fishing trawler to recover damages for personal injuries sustained as a result of unseaworthiness due to the temporary presence on the ship’s rail of slime and fish gurry remaining there from recent unloading operations, the shipowner’s actual or constructive knowledge of the temporary unseaworthy condition is not an essential element of the seaman’s case. Pp. 362 U. S. 539-550.(a) A shipowner’s duty to furnish a seaworthy ship is absolute, and it is not limited by concepts of common law negligence. Pp. 362 U. S. 542-549.(b) Liability of the shipowner for a temporary unseaworthy condition is not different from the liability which attaches when the unseaworthy condition is permanent. Pp. 362 U. S. 549-550.
Beat me to it. I was going to post about Mitchell v Trawler Racer. Both for the concept of transitory unseaworthiness, and to illustrate that “unseaworthiness” is a very broad concept and is not limited to what a lay person would think of when they hear that term
Various members of the forum have been speculating about whether Dali left the dock in an unseaworthy condition with electrical problems and the owners, managers or charterer knew it. While all of this is very relevant to proving negligence by the ships officers, owners, manager, and charterer, it really has little bearing on the issue unseaworthiness.
Transitory unseaworthiness occurred the moment the ship lost power and steering. There is no need to show that the ship was unseaworthy when it left the dock. That makes the ship “absolutely liable.”
The value of the ship, earned freight, and the amount of P&I cover will NOT begin to cover all the damages in this case.
Therefore, in order for the plaintiffs to recover a large portion of the damages they are going to need to prove that someone with deep pockets was negligent.
Besides for all that, you want to get your lawsuit in early and name everyone that even looked at the ship. The courts can sort it out later, but it is easier to drop parties from the case than add them.
To add to the fun and delays, the insurance companies involved will then sue each other trying to recover some of what they had to pay out. Subrogation is the legal term for this I think.
3 posts were split to a new topic: Media Coverage of M/V Dali and Key Bridge
Sir.
I have been following below link for more then 20 years already and during all these years downloadad many cases for reading as it is by no means one of the most fascinating literature to read as a reading hobby .
Never in any of studied cases have I encountered the term "
transitory unseaworthines " .Honestly when I have read Your comment my jaw dropped with a loud bang. It is not only original but I would say fantastic concept .
Hence my question;
What if, in the process of discovery it will be revealed , that the reason of Dali transitory unseaworthiness was " a latent defect " undiscoverable not only with the aplication of normal due dilligence by the crew and managers but also undiscoverable even with the aplication of extraordinary dilligence .???
What then???
rgds
It does not matter what the cause of unseaworthiness is, how long it has been unseaworthy , or who did or didn’t know about it, or what precautions where taken, or not taken, to assure seaworthiness.
If the vessel is found to be unseaworthy (which doesn’t take much), then it is “absolutely liable” for any damages caused.
“Absolute liability” is “ strict liability” which is simplest to understand as:
“liability without fault.”
In other words, if the ship is found to be unseaworthy, at the moment of an incident, and it breaks something, it has to pay for it.
Thank You.
A small business in Baltimore became the first private entity to file a lawsuit against the owner and the manager of the container ship that crashed into the Francis Scott Key Bridge a month ago, a disaster that killed six people, destroyed a major roadway and crippled business in the Port of Baltimore.
The lawsuit was filed in U.S. District Court in Maryland on Thursday by a team of attorneys representing American Publishing LLC, an enterprise owned by a woman and her husband, who claim in court documents that their April profits plummeted as a direct result of the Key Bridge collapse.
The suit, filed as a class action, seeks to include all other businesses or individuals who were affected by the disaster.
(the link is free)
This is going to be keeping a whole army of lawyers busy for quite some time.
After taking the time to read the entire Supreme Court case about transitory unseaworthiness, I decided that some of us here might also be interested in reading it. I purposely left out the dissent because I thought some people might get confused by it.
Our foreign members of the forum may be particularly interested in how the US Supreme Court in 1960 discusses the development of the law of maritime negligence and unseaworthiness over hundreds of years from ancient Continental European Codes, to English Statues, to later American cases.
Argued: January 21, 1960
Decided: May 16, 1960
Syllabus
Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)
Mitchell v. Trawler Racer, Inc.
No. 176
Argued January 21, 1960
Decided May 16, 1960
362 U.S. 539
Syllabus
Opinions
Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960) Mitchell v. Trawler Racer, Inc.No. 176Argued January 21, 1960Decided May 16, 1960362 U.S. 539CERTIORARI TO THE UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUITSyllabus**In an action by a seaman who was a member of the crew of a fishing trawler to recover damages for personal injuries sustained as a result of unseaworthiness due to the temporary presence on the ship’s rail of slime and fish gurry remaining there from recent unloading operations, the shipowner’s actual or constructive knowledge of the temporary unseaworthy condition is not an essential element of the seaman’s case. Pp. 362 U. S. 539-550.(a) A shipowner’s duty to furnish a seaworthy ship is absolute, and it is not limited by concepts of common law negligence. Pp. 362 U. S. 542-549.(b) Liability of the shipowner for a temporary unseaworthy condition is not different from the liability which attaches when the unseaworthy condition is permanent. Pp. 362 U. S. 549-550.265 F.2d 426 reversed.MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was a member of the crew of the Boston fishing trawler Racer, owned and operated by thePage 362 U. S. 540respondent. On April 1, 1957, the vessel returned to her home port from a 10-day voyage to the North Atlantic fishing grounds, loaded with a catch of fish and fish spawn. After working that morning with his fellow crew members in unloading the spawn, [Footnote 1] the petitioner changed his clothes and came on deck to go ashore. He made his way to the side of the vessel which abutted the dock, and in accord with recognized custom stepped onto the ship’s rail in order to reach a ladder attached to the pier. He was injured when his foot slipped off the rail as he grasped the ladder.To recover for his injuries, he filed this action for damages in a complaint containing three counts: the first under the Jones Act, alleging negligence, the second alleging unseaworthiness, and the third for maintenance and cure. At the trial, there was evidence to show that the ship’s rail where the petitioner had lost his footing was covered for a distance of 10 or 12 feet with slime and fish gurry, apparently remaining there from the earlier unloading operations.The district judge instructed the jury that in order to allow recovery upon either the negligence or unseaworthiness count, they must find that the slime and gurry had been on the ship’s rail for a period of time long enough for the respondent to have learned about it and to have removed it. [Footnote 2] Counsel for the petitioner requested thatPage 362 U. S. 541the trial judge distinguish between negligence and unseaworthiness in this respect, and specifically requested him to instruct the jury that notice was not a necessary element in proving liability based upon unseaworthiness of the vessel. This request was denied. [Footnote 3] The jury awarded the petitioner maintenance and cure, but found for the respondent shipowner on both the negligence and unseaworthiness counts.Page 362 U. S. 542An appeal was taken upon the sole ground that the district judge had been in error in instructing the jury that constructive notice was necessary to support liability for unseaworthiness. The Court of Appeals affirmed, holding that, at least with respect to “an unseaworthy condition which arises only during the progress of the voyage,” the shipowner’s obligation “is merely to see that reasonable care is used under the circumstances . . . incident to the correction of the newly arisen defect.” 265 F.2d 426, 432. Certiorari was granted, 361 U.S. 808, to consider a question of maritime law upon which the Courts of Appeals have expressed differing views. Compare Cookingham v. United States, 184 F.2d 213 (C.A. 3d Cir.), with Johnson Line v. Maloney, 243 F.2d 293 (C.A. 9th Cir.), and Poignant v. United States, 225 F.2d 595 (C.A. 2d Cir.).In its present posture, this case thus presents the single issue whether, with respect to so-called “transitory” unseaworthiness, the shipowner’s liability is limited by concepts of common law negligence. There are here no problems, such as have recently engaged the Court’s attention, with respect to the petitioner’s status as a “seaman.” Cf. Seas Shipping Co. v. Sieracki, 328 U. S. 85; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; United Pilots Assn. v. Halecki, 358 U. S. 613, or as to the status of the vessel itself. Cf. West v. United States, 361 U. S. 118. The Racer was in active maritime operation, and the petitioner was a member of her crew. [Footnote 4]Page 362 U. S. 543The origin of a seaman’s right to recover for injuries caused by an unseaworthy ship is far from clear. The earliest codifications of the law of the sea provided only the equivalent of maintenance and cure – medical treatment and wages to a mariner wounded or falling ill in the service of the ship. Markedly similar provisions granting relief of this nature are to be found in the Laws of Oleron, promulgated about 1150 A.D. by Eleanor, Duchess of Guienne; in the Laws of Wisbuy, published in the following century; in the Laws of the Hanse Towns, which appeared in 1597; and in the Marine Ordinances of Louis XIV, published in 1681. [Footnote 5]For many years, American courts regarded these ancient codes as establishing the limits of a shipowner’s liability to a seaman injured in the service of his vessel. Harden v. Gordon, Fed.Cas. No. 6,047, 2 Mason 541; The Brig George, Fed.Cas. No. 5,329, 1 Sumn. 151;Page 362 U. S. 544Reed v. Canfield, Fed.Cas. No. 11,641, 1 Sumn. 195. [Footnote 6] During this early period, the maritime law was concerned with the concept of unseaworthiness only with reference to two situations quite unrelated to the right of a crew member to recover for personal injuries. The earliest mention of unseaworthiness in American judicial opinions appears in cases in which mariners were suing for their wages. They were required to prove the unseaworthiness of the vessel to excuse their desertion or misconduct which otherwise would result in a forfeiture of their right to wages. See Dixon v. The Cyrus, 7 Fed.Cas. 755, No. 3,930; Rice v. The Polly & Kitty, 20 Fed.Cas. 666, No. 11,754; The Moslem, 17 Fed.Cas. 894, No. 9,875. The other route through which the concept of unseaworthiness found its way into the maritime law was via the rules covering marine insurance and the carriage of goods by sea. The Caledonia, 157 U. S. 124; The Silvia, 171 U. S. 462; The Southwark, 191 U. S. 1; I Parsons on Marine Insurance [(1868) 367-400](tel:(1868) 367-400).Not until the late nineteenth century did there develop in American admiralty courts the doctrine that seamen had a right to recover for personal injuries beyond maintenance and cure. During that period, it became generally accepted that a shipowner was liable to a mariner injured in the service of a ship as a consequence of the owner’s failure to exercise due diligence. The decisions of that era for the most part treated maritime injury cases on the same footing as cases involving the duty of a shoreside employer to exercise ordinary care to provide his employees with a reasonably safe place to work. Brown v. The D.S. Cage,4 Fed.Cas. 367, No. 2,002;Page 362 U. S. 545Halverson v. Nisen, 11 Fed.Cas. 310, No. 5,970; The Noddleburn 28 F. 855; The Neptuno, 30 F. 925; The Lizzie Frank, 31 F. 477; The Flowergate, 31 F. 762; The A. Heaton, 43 F. 592; The Julia Fowler, 49 F. 277; The Concord, 58 F. 913; The France, 59 F. 479; The Robert C. McQuillen, 91 F. 685.Although some courts held shipowners liable for injuries caused by “active” negligence, The Edith Godden, 23 F. 43; The Frank & Willie, 45 F. 494, it was held in The City of Alexandria, 17 F. 390, in a thorough opinion by Judge Addison Brown, that the owner was not liable for negligence which did not render the ship or her appliances unseaworthy. A closely related limitation upon the owner’s liability was that imposed by the fellow servant doctrine. The Sachem, 42 F. 66. [Footnote 7]This was the historical background behind Mr. Justice Brown’s much quoted second proposition in The Osceola, 189 U. S. 158, 189 U. S. 175:"That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.“In support of this proposition, the Court’s opinion noted that”[i]t will be observed in these cases that a departure has been made from the Continental Codes in allowing an indemnity beyond the expense of maintenance and cure in cases arising from unseaworthiness. This departure originated in England in the Merchants’ shipping act of 1876 . . . , and, in this country, in a general consensus of opinion among the circuit andPage 362 U. S. 546district courts, that an exception should be made from the general principle before obtaining in favor of seamen suffering injury through the unseaworthiness of the vessel. We are not disposed to disturb so wholesome a doctrine by any contrary decision of our own."189 U.S. at 189 U. S. 175.It is arguable that the import of the above-quoted second proposition in The Osceola was not to broaden the shipowner’s liability, but, rather to limit liability for negligence to those situations where his negligence resulted in the vessel’s unseaworthiness. Support for such a view is to be found not only in the historic context in which The Osceola was decided, but in the discussion in the balance of the opinion, in the decision itself (in favor of the shipowner), and in the equation which the Court drew with the law of England, where the Merchant Shipping Act of 1876 imposed upon the owner only the duty to use “all reasonable means” to “insure the seaworthiness of the ship.” This limited view of The Osceola’s pronouncement as to liability for unseaworthiness may be the basis for subsequent decisions of federal courts exonerating shipowners from responsibility for the negligence of their agents because that negligence had not rendered the vessel unseaworthy. The Henry B. Fiske, 141 F. 188; Tropical Fruit S.S. Co. v. Towle, 222 F. 867; John A. Roebling’s Sons Co. v. Erickson, 261 F. 986. Such a reading of the Osceola opinion also finds arguable support in several subsequent decisions of this Court. Baltimore S.S. Co. v. Phillips, 274 U. S. 316; Plamals v. The Pinar Del Rio, 277 U. S. 151; Pacific S.S. Co. v. Peterson, 278 U. S. 130. [Footnote 8] In any event, with the passage of the Jones Act in 1920, 41 Stat. 1007, 46 U.S.C. § 688, Congress effectively obliterated all distinctions betweenPage 362 U. S. 547the kinds of negligence for which the shipowner is liable, as well as limitations imposed by the fellow servant doctrine, by extending to seamen the remedies made available to railroad workers under the Federal Employers’ Liability Act. [Footnote 9]The first reference in this Court to the shipowner’s obligation to furnish a seaworthy ship as explicitly unrelated to the standard of ordinary care in a personal injury case appears in Carlisle Packing Co. v. Sandanger, 259 U. S. 255. There, it was said,"we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . , and that, if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages."259 U.S. at 259 U. S. 259. This characterization of unseaworthiness as unrelated to negligence was probably not necessary to the decision in that case, where the respondent’s injuries had clearly in fact been caused by failure to exercise ordinary care (putting gasoline in a can labeled “coal oil” and neglecting to provide the vessel with life preservers). Yet there is no reason to suppose that the Court’s language was inadvertent. [Footnote 10]During the two decades that followed the Carlisle decision, there came to be a general acceptance of the view that The Osceola had enunciated a concept of absolute liability for unseaworthiness unrelated to principles of negligence law. Personal injury litigation based upon unseaworthiness was substantial. See, Gilmore and Black, The Law of Admiralty (1957), p. 316. And the standard texts accepted that theory of liability without question.Page 362 U. S. 548See Benedict, The Law of American Admiralty (6th Ed., 1940), Vol. I, § 83; Robinson, Admiralty Law (1939), p. 303 et seq. Perhaps the clearest expression appeared in Judge Augustus Hand’s opinion in The H. A. Scandrett, 87 F.2d 708:“In our opinion the libellant had a right of indemnity for injuries arising from an unseaworthy ship even though there was no means of anticipating trouble.”"The ship is not freed from liability by mere due diligence to render her seaworthy as may be the case under the Harter Act (46 U.S.C. §§ 190-195), where loss results from faults in navigation, but, under the maritime law, there is an absolute obligation to provide a seaworthy vessel, and, in default thereof, liability follows for any injuries caused by breach of the obligation."87 F.2d at 711.In 1944, this Court decided Mahnich v. Southern S.S. Co., 321 U. S. 96. While it is possible to take a narrow view of the precise holding in that case, [Footnote 11] the fact is that Mahnich stands as a landmark in the development of admiralty law. Chief Justice Stone’s opinion in that case gave an unqualified stamp of solid authority to the view that The Osceola was correctly to be understood as holding that the duty to provide a seaworthy ship depends not at all upon the negligence of the shipowner or his agents. Moreover, the dissent in Mahnich accepted this reading of The Osceola, and claimed no more than that the injury in Mahnich was not properly attributable to unseaworthiness. See 321 U.S. at 321 U. S. 105-113.In Seas Shipping Co. v. Sieracki, 328 U. S. 85, the Court effectively scotched any doubts that might have lingeredPage 362 U. S. 549after Mahnich as to the nature of the shipowner’s duty to provide a seaworthy vessel. The character of the duty, said the Court, is “absolute.”"It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. . . . It is a form of absolute duty owing to all within the range of its humanitarian policy."328 U.S. at 328 U. S. 94-95. The dissenting opinion agreed as to the nature of the shipowner’s duty. “[D]ue diligence of the owner,” it said, “does not relieve him from this obligation.” 328 U.S. at 328 U. S. 104.From that day to this, the decisions of this Court have undeviatingly reflected an understanding that the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; Alaska Steamship Co. v. Petterson, 347 U. S. 396; Rogers v. United States Lines, 347 U.S. 984; Boudoin v. Lykes Bros. S.S. Co., 348 U. S. 336; Crumady v. The J. H. Fisser, 358 U. S. 423; United Pilots Assn. v. Halecki, 358 U. S. 613.There is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port, or that the duty is any less with respect to an unseaworthy condition which may be only temporary. Of particular relevance here is Alaska Steamship Co. v. Petterson, supra. In that case, the Court affirmed a judgment holding the shipowner liable for injuries caused by defective equipment temporarily brought on board by an independent contractor over which the owner had no control. That decision is thus specific authority for the proposition that the shipowner’s actual or constructive knowledge of the unseaworthy condition is not essential to his liability.Page 362 U. S. 550That decision also effectively disposes of the suggestion that liability for a temporary unseaworthy condition is different from the liability that attaches when the condition is permanent. [Footnote 12]There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic. But, in view of the decisions in this Court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history.What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S.S. Co., 348 U. S. 336.The judgment must be reversed, and the case remanded to the District Court for a new trial on the issue of unseaworthiness.Reversed and remanded.
There will be many business making claims, maybe even waitresses claiming less tip income.
The Exxon Valdez case had over 20,000 class action plaintiffs.
In Exxon Valdez, the court laid out limits on what types of plaintiffs with what types of claims are entitled to compensation. Not all consequential damages are entitle to compensation.
Thank You very much. WOW!!!
This will keep me away from gCapt forum for a week or more .
No need to flag or block me. 
You might remember a case of a vessel entering the Port of Melbourne. There was nothing untoward as the vessel entered the River Yarra, the ship answering the telegraph as normal. Tugs were in attendance as the vessel entered Swanson Dock stern first with the engine slow astern. After stopping the engine it failed to start ahead to take the way off with the automation indicating no oil pressure. There was a delay in letting go the anchors as the bridge couldn’t establish the position of the forward tug for a few vital seconds. The ship caused damage to two other vessels alongside.
The investigation found that a tube leading to a sensor was blocked and this was the first time that this fault had occurred on this type of engine . There was no established maintenance procedure by the manufacturer for checking this tube.
The master was found to be negligent in not having a contingency plan. I can’t remember what happened afterwards regarding claims.
It appears that Australia also has a:
“You break it, you pay for it” version of admiralty law.
While there will be national differences, the law is quite similar in all of the English common law jurisdictions where precedents are set by court decided cases.
Although, the majority of countries where law is based upon Continental European Civil Codes, have a very different legal system (no precedents from cases) they often reach a similar outcome.
