No jury in admiralty; it will be a bench trial just before the judge.
In theory, some plaintiffs could sue in state court and get jury trials, but I doubt that will happen.
One of the reasons that the Dali filed so fast in federal court under the limitation of liability act, is so that they can get a pretrial court order with a deadline for plaintiffs to file claims and opposition briefs. This will probably force all the plaintiffs into one case in admiralty court without a jury.
Unimaginable ??? yes indeed . The number of “0 -zeroes” may be mind boggling for some but with all due respect it is calculable with very easy aritmethic and very basic physics.
Dali kinetic energy calculation is simple as pie:
and it is an equivalent of explosive eneregy of 360 pounds of TNT
How to disperse it w/o damaging property /constructions is another story.
rgds
Another thing to remember: A defendant must take the injured plaintiff as he finds him.
If you run your car into a homeless unemployed person and he suffers no lost wages, you are lucky and will owe no damages for lost wages (you will still owe other types of damages).
If you run your car into Elon Musk and put him in a coma for a year, you are unlucky and will owe $$$$ Billions in lost wages and economic damages to Musk, and probably $$$$ Billions more to every company where he is a key man.
The Dali must take the Key Bridge as it found it.
Damages for destruction of the bridge will not be reduced by a claim that the bridge was poorly designed, old, and just waiting to fall over anyway.
In the Sunshine Skyway Bridge case, it appears (I haven’t read the case) that the measure of damages was the depreciated value of the original bridge. Not the replacement cost of a new better bridge.
I would expect a similar depreciated value of the original bridge measure of damages for the Key Bridge in this case.
The Dali does not have the ability to pay all the $$$$$ Billions of damages in this case. Nor does the corporation that owns it. Nor does the Japanese man that owns the shares of that corporation. Nor does the ship management company, or its owners.
The amount of coverage by the P&I Club has defined limits and will not be nearly enough to pay the claims in this case.
Unless Maersk can be held liable, on some theory, such as they interfered too much in the management of the vessel, did a negligent job of vetting it, or usurped the Master’s authority ( and these things seem quite speculative and unlikely at this point), then not all of the damages in this case will be collectible.
That will set up decades of litigation between the plaintiffs over who is entitled to what proportion of what can be collected. There may be another decade of litigation among the law firms over who is entitled to what proportion of the legal fees that are ultimately approved by the court.
Of course, we are getting way ahead of ourselves. In order for the Dali (or anyone) to be liable it must be proven that she was either unseaworthy or negligent.
We seem to be assuming res ipsa loquitor (the thing speaks for itself - —- that ships do not ordinarily run into bridges unless the ship was unseaworthy or someone was negligent) therefore Dali is liable.
My gut instinct suggests that the Dali was probably both unseaworthy and negligent, but that remains to be proven. For the purposes of me commenting as a mariner, on legal issues that I’m not qualified to comment on, I’m going to assume that Dali will be held liable.
tugsailor,
Interesting post. I do agree that the “Dali” will, in the fullness of time, be found to have been negligent as was the owner of the “Summit Venture”. The first Sunshine Skyway bridge was apparently opened in 1954 with an associated cost of $23,000,000. The replacement bridge was completed at a cost $244,000,000 which roughly equates to $700,000,000 in todays dollars. The fact that the federal judge’s award against the “Summit Venture”, amounting to only $19,000,000, lends weight to your point regarding the devalued building cost. I have seen figures for the Key Bridge initial cost ranging from $120m to $280m.
Personally I believe, as I have previously stated, that the relevant traffic authorities for Maryland have been negligent in not mitigating risk as was recommended in the NTSB Sunshine Skyway report…….45 years ago.
Then again……Charles Dickens nailed it……”the law is an ass”.
In the jungle of laws , only the law of the jungle will prevail.
I have a suggestion for a GoFundMe type of page to be initiated by the Maryland State Govt. Ever since I joined this group after the Dali incident, I see a lot of qualified people and as a group we might be able to make a difference or least have our suggestions heard by the Gov’s office. May have some legs.
Assuming the SG failed after the first blackout, I think the responsibility/obligation extends beyond the owners, ship manager and the CP to the rule makers and therefore by default all member states of IMO. The many (parties and organizations) slices in the Swiss cheese analogy lining up for this unfortunate incident. The blackouts due to the breaker issue may not be that material for cause of the accident (other than unseaworthy to depart) if the SG remains operational after any blackout.
Primary intent of all regulations (statutory), rules (Class) and standards is to ensure highest levels of safety in design/operation and to learn from experience and incorporate into regulations/rules. In this case, considering there is no real redundancy in the SG, extra focus on developing requirements or referring to any existing standards such as ISO for the critical solenoid valves including shock testing during operation by electrical power interruption should be included. IMO or Class should include or incorporate by reference an acceptable standard or develop such requirements. No doubt IMO has done a great job with the present requirements, such as redundant systems with 1 to be powered from the emergency board, oversized motors, etc. The intent is clearly there - one system failure should not render the other inoperable. But clearly not enough. I have experienced a similar situation where most likely a level switch in the expansion tank activated the isolation system (designed to isolate the 2 hydraulic systems) created a hydraulic lock due to either shock loading of the solenoids or leaking valves. Consequence was damage to the SG and frozen in position. Vendor attends, repairs and leaves. No explanation as the cause. Possibly higher ups in his company advised to keep his lips sealed. (Similar to CP breathing down the Master’s neck). There isn’t a robust incident reporting system, so who knows if it has happened to others. Class may have records as they would be present during/after the repair. But do they share between themselves? Unlikely. So where does the chain of responsibility end? Do the rule makers not have an obligation? Do all the entities in between not have an obligation?
If the above is reasonable to assume, target audience for funds is All member states of IMO, All Class societies (at least the IACS), All shipowners, Charterers, Management companies, All steering gear manufacturers.
This could have happened to any vessel/owner. So help us re-build the bridge. Funds to be used solely for an early kick start for the efforts to re-build the bridge and potentially supplementing the federal funds.
Indeed, you can calculate it !
However, looking for solutions to solve a problem begins with the imagination of the problem itself, only then, the calculations can be done. In this process, real solutions may got lost…
Fendering the pylon is probably the first idea… but no fenders can handle this energy without transmitting the force to the pylon…
Or alternatively build better protected bridges.
Or even have tugs escort big ships through badly protected bridges.
Simple things for simple sailors.
To me, it’s a foregone conclusion that there will be a lot more tug escorts near critical infrastructure. This is obvious and easy to do and won’t increase shipping costs by more than a dime per container.
Not just bridges either. There is a lot of other critical infrastructure: docks, refineries, buildings, highway and train track revetments, levees, locks, pipelines, cables, etc.
Remember that incident in the Columbia River about 35 years ago when a ship ran aground and damaged the intake to a nuclear power plant?
I suspect that orders for bigger and better sea bouy to berth escort tugs are being placed right now.
The harbor tug fleet has already been updated and upgraded to modern tractor tugs in recent years.
The ocean and coastwise fleet is long overdue for an updating and upgrading phase.
We don’t have any big ocean rescue tugs that can take an ultra large ship in tow during a storm and keep it off the rocks.
It is impractical to have tug escort for longer passages, I do appreciate that.
In my port the only way for the port to operate was for big container ships to run at high speed for a substantial part of the inward passage.
For the older container terminal it was 5 hours from pilot boarding to berth and 4 hours to the newer terminal although it was 1 hour longer on passage to the older one… Over 60 miles pilot to berth.
In all fairness we did not have anything substantial that we could crash into other than blocking a high traffic channel. Blocking that channel would have been a disaster in the same scale as the ever given but the likelihood was very very low as even with a blackout it was likely that we would Go around on one side of the channel and not straddle a 300m channel.
Our only bridge in my part of the river was substantially protected and the biggest ship that transited it was a 230m passenger ship and the heaviest a 50,000 t tanker .
The passenger ship would transit without tugs unless for operational reasons they had to go that way and the Tankers were near to the berth so had tugs in attendance.
But I do know that Risk assessments were done for these ships
The Valdez tanker escorts are about 60 miles. Those have been proven over 35 years.
The Anacortes tanker escorts must be a similar distance.
The tanker escorts from Vancouver are longer.
A tax should be added for every ton of cargo going into the port till the bridge is fixed and protected.
This incident is the classic pay me now or pay me twice later.
I agree that major new infrastructure, like a bridge, should have tolls for the cars and trucks that drive over it, and the large commercial ships that pass under it.
However, this needs to be fully automated with toll collection systems (Easy Pass, Sun Pass, etc.).
It would be perfectly reasonable to charge a 10,000 TEU container ship $10,000 to pass under the new Key Bridge. That’s only $1 per container.
The longshoremen are going to charge something like $100 per container move and be as inefficient as possible to move each container several times. In the scheme of things, the $1 per TEU bridge fee is nothing.
The bridge already has (had?) EZPass for cars. Boats were free.
If Maryland gets stiffed on the bill for all this, which seems about 98% certain, they may come up with something like required extra insurance to be in Maryland waters. Mexican insurance comes to mind as an example on a smaller scale.
Ship insurance (COFR) requirements for international shipping are federally regulated in conformity will international treaties. States are preempted from regulating ship COFRs, and from charging ship tolls for a waterway that receives federal funds. That’s all federal.
It would appear to me that the MTA’s infrastructure management is reactive……definitely not proactive.
A novice could establish that placing a busy shipping channel adjacent to a single point of failure with little protection from allision represents high risk. Forty three years ago, the NTSB recommended that relevant authorities look at their bridges. This particular authority has changed nothing in 47 years……no additional pylon protection……no requirement for tug escort……no speed restrictions………no displacement restrictions…….nothing. The pylon is hit by a small container vessel and still…….nothing.
Individuals who believe that the MTA should bare no financial responsibility or sanctions towards this clusterf…k are having themselves on quite frankly. Clearly, it will be a federal bailout.
As I understand it, under general principals of Anglo-American Admiralty law (UK, USA, Canada, Australia, New Zealand, and a few others):
The Dali has to take the bridge as it found it.
The Dali (if found to be unseaworthy or negligent) will be responsible for 100% of the damages to the Key Bridge.
The Dali’s liability for damages to the bridge will not be mitigated by the failure of Maryland to provide better fenders around the bridge support structures.
I have no reason to know of any special statutes or court decisions in foreign countries that might provide some exceptions to generally accepted principals of admiralty law.
The total claims will be $$$$$ Billions. There will be hundreds of law firms and perhaps thousands of lawyers litigating this for a decade. There will probably be tens of thousands of class action plaintiffs. Defense lawyers will litigate every conceivable issue in great detail, and appeal every unfavorable decision.
This case will probably eventually find its way to the US Supreme Court.
I expect this Dali case to progress in a similar way to the Exxon Valdez case.
If you want to get a sense of what the Dali litigation is likely to look like, read:
David Lebedoff’s book CLEANING UP (the biggest legal bonanza ever).
The Exxon litigation continued for another four years after the book was published, and was ultimately decided by the US Supreme Court in 2001. 22 years after the oil spill.
I do think that you are being overly optimistic to think they can sort this out in 10 years.
Another thing to consider for Dali is strict liability.
If the Captain or Chief or the owner or manager is convicted a crime, with intent or reckless as an element, such as failure to report electrical problems, or deciding to sail with defective equipment, the Dali may be strictly liable for the damages that it caused.
I believe that an intentional or reckless criminal act, might also bar the Dali’s claim for limitation of liability.
Also, remember the Pennsylvania Rule (citations omitted), which holds that when a ship operates in violation of a statute enacted for safety of navigation the burden of proof shifts to the ship. The ship must prove a negative: that the violation could not have contributed to causing the incident. That’s almost impossible to prove.