Admiralty Law Newsletter

The Pennsylvania Rule: Its Past, Present, and Thoughts on Its Future

J. Neale deGravelles

I.   INTRODUCTION

As will be explored below, the Pennsylvania rule has proved to be one of the most enduring presumptions in the American maritime law.  Although many have argued that is obsolete, and certain courts have limited its scope, the doctrine remains unquestionably viable.  In fact, a recent 5th Circuit opinion has eased previous restrictions placed on the application of the doctrine, thereby begging the question as to whether the doctrine may be expanded in the future even further.

II.   HISTORY OF THE PENNSYLVANIA RULE

In the modern maritime era, ship collisions have been significantly reduced due to advances in modern maritime technology, such as radar, ARPA, and GPS, yet they have not been eliminated entirely.1 Since 1873, the rule in the United States pertaining to ship collisions was handed down in The Pennsylvania.2 Generally, the rule is that if, in the events leading up to or during a collision, a vessel is in violation of a statute or regulation designed to avoid collisions, the violation is presumed to be a cause of the collision. A vessel may only overcome this presumption if it can show not only that its violation was in fact not the cause of the collisions, but also that it could not have been a cause of the collision.   This heightened burden placed on vessels and vessel operators sought to establish only whether the violation did or did not cause the collision, not to establish fault.3 However, coupled with the rule of divided damages, failing to rebut the presumption often led to a vessel or operator being found liable.4

Over time, the scope of the Pennsylvania Rule was expanded not only to include collisions but also other maritime torts that occurred after a statutory or regulatory violation.5

Its application lead to victories for plaintiffs who might succeed when defendants could not meet the high burdens to overcome the presumption of causation. However, in latter half of the last century, the Rule has been somewhat reduced in that its standards for application have become more stringent, and certain subsequent court decisions have even threatened to render rule the obsolete.6 Combined with the advent of modern maritime technology and new rules as to the fault of the parties, many conservative legal scholars have called for the end of the use of the doctrine.7 Nevertheless, the Pennsylvania Rule still exists within modern collision law and is used to determine whether a vessel or vessel operator’s violation of a statute or regulation caused the marine casualty.  In fact, as explored below, the 5th Circuit has recently expanded the rule.

 

III.  THE PENNSYLVANIA RULE

 

            A.        The Pennsylvania

 

The United States Supreme Court created the Pennsylvania rule in 1873 in a decision concerning the collision between two vessels, the PENNSYLVANIA and the MARY TROOP.8 At the time of the collision, which occurred some 200 miles offshore the coasts of New York and New Jersey in a dense fog, the MARY TROOP had been ringing its bell instead of sounding its foghorn.9 As the navigational rules required a foghorn to be used while underway in a fog, the Court found that the MARY TROOP was in clear violation of the navigational rules.10 However, the Court stated that liability could only be imposed if the violation in any degree contributed to the collision.11  It then pronounced what has come to be known as the Pennsylvania Rule:

“When, as in this case, a ship at the time of collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.12

 

Simply stated, the Pennsylvania Rule imposes a rebuttable presumption of causation against a party involved in a maritime collision if the vessel or operator has violated a statute or regulation intended to prevent collisions.13  The presumption is rebutted through a showing that the violation was not and could not have been a cause of the collision.14

Applying the rule to the facts of the case, the Court found that the MARY TROOP could not meet its high burden of proving that the failure to sound a foghorn was a not a cause of the collision.15 It therefore held that the MARY TROOP’s violation of the navigational rule contributed to the cause of the collision and thus was liable for half of the damages under the divided damages rule.16

            B.        Justifications for the Pennsylvania Rule

The Court justified the implementation of the Pennsylvania rule to accomplish two purposes: first, to deter violations of navigational rules; and second, to simplify litigation in collision suits.  The first purpose is clearly stated by the Court that the rule is necessary for the enforcement of navigational statutes.17  Citing the English case, The Fenham, which imposed a similar burden on vessels involved in collisions while in violation of lighting regulations, the Court stated that enforcing obedience to the navigational statutes “is of the greatest possible importance.”18  Therefore the Court believed that by placing such a high burden of proof as to causation on violators of navigational rules involved in collisions, the Rule would deter violations and encourage vessels and operators to abide by the rules.

The second purpose was to simplify litigation in collision suits. This was done by placing the burden on the party with greater knowledge of the violation as to whether it was a cause of the collision. When the Rule was promulgated, evidence as to causes of collisions was scarce as vessels were often lost and modern technology to recreate collisions was not yet available. Therefore the Pennsylvania rule shifted and increased the evidentiary burden of proof on the issue of causation to the party that violates a navigational rule, by making the party prove that its violation was not and could not be a cause of the collision.19 As this party will have superior knowledge of whether the violation caused the collision, the evidentiary hurdles are overcome thereby simplifying litigation.

In The Pennsylvania, however, the Court did not expressly state this as a justification for the Rule, yet it can be inferred from the facts and holding of the case. The opinion implies that the Rule is applied when it is not immediately clear whether the violation of a navigational rule caused or was a cause of the collision. For example, the Court found that the PENNSYLVANIA was clearly in violation of a safe speed regulation, and that its undue speed contributed to the collision.20 However, despite being in violation of a navigational statute, the Court did not apply the Pennsylvania Rule to this vessel, but only to the MARY TROOP.21 It logically follows that the rule is to be applied in situations where a party’s fault is unclear but has nevertheless violated a statute or regulation aimed to prevent collisions, such as with the MARY TROOP.22 By shifting and increasing the burden to a party in violation of a navigational rule, the Pennsylvania rule simplifies litigation by forcing the party with superior knowledge to present evidence that its violation was not, and could not have been, a cause of the collision.23

 

IV.   PENNSYLVANIA RULE JURISPRUDENCE

 

Since the Pennsylvania rule was first pronounced, the language of the rule has generally remained unchanged, while its scope and application has both been expanded and restricted by various courts. To fully understand the development of the rule to what it is today, there are several things that must be first considered.  Initially, it is important to note that the rule imposes a rebuttable presumption of causation for collisions, and not a presumption of ultimate fault or liability.24 The rule shifts the burden of proof as to causation to the statutory offender, but it does not ipso facto impose liability.25 Therefore other rules must be employed to determine whether a party is in fact liable and what portion of liability is attributable to that party.26

Secondly, the Pennsylvania rule is an anomaly in American tort jurisprudence and in the maritime law of seafaring nations.27 As the rule only creates a presumption as to causation, it determines whether a vessel can be held under an all-or-nothing approach because without causation a vessel cannot be held liable for its statutory violations.28 Therefore, the rule can be described as only a threshold inquiry, whether a party can be held liable, but not whether a party is in fact liable.  Thirdly, the Pennsylvania rule is not limited to just one party in a collision suit.29 Where both parties to a collision are guilty of statutory fault, the heavy burden to rebut the presumption of causation falls upon each party.30 Furthermore, the rule has held to be applicable outside of marine collisions to other maritime torts.31

Lastly, the presumption of causation may be only be rebutted by showing that a statutory violation was not, and could not have been a cause attributed to a collision. Although this establishes a high burden, it is not without limits. The Fifth Circuit has held The Pennsylvania Court did not intend to establish a hard and fast rule that every vessel guilty of a statutory fault has the burden of establishing that its fault could not by any stretch of the imagination have had any causal relation to the collision, no matter how speculative, improbable, or remote.32

Thus a party need not prove that its statutory fault was not a cause of the collision under any and all circumstances, but only under reasonable probabilities.33

The jurisprudence of the Pennsylvania Rule can be best analyzed under three broad categories concerning its application. The first is the application of the Rule under a given liability scheme. Specifically this focuses on the Rule’s workings under the rule of divided damages, and subsequently the Rule’s application under the comparative fault framework. The second category concerns whether the requirements are met in order for the Pennsylvania Rule to be applied.  This includes under what circumstances a violation of a statutory or navigational rule may trigger the Pennsylvania Rule. Also it will touch upon instances where the Rule may be applicable, but is nevertheless excused. The last area deals with the choice of law issues that affect the applicability of the Pennsylvania Rule. 

 

            A.        The Pennsylvania Rule and Liability

 Prior to 1975, the Pennsylvania Rule operated with the divided damages rule to determine a party’s liability for statutory fault causing a collision.34 The divided damages rule apportioned liability equally among all at-fault vessels in a collision.35 As noted earlier, the Pennsylvania Rule establishes a presumption of causation or otherwise determines the threshold inquiry of whether a party can be held liable for statutory fault. Together the two rules worked in tandem to determine whether all, half or none of the liability for a collision could be imposed on a party guilty of statutory fault.36  However the interaction of these two rules often lead to harsh or inequitable results because together they can impose liability on a vessel that violated a statutory rule of navigation without evidence as to the issue of causation or when the evidence showed that another vessel was primarily at fault in causing the collision.37 Otherwise stated, if a party failed to rebut to the Pennsylvania Rule’s presumption of causation, the party could be held liable for half or all damages, even in the absence of any evidence of causation or when another party was predominantly at fault.38

The potential for such harsh consequences often lead courts to fashion their own exceptions to the Pennsylvania Rule.39  “Where the gross negligence of one vessel is wholly sufficient in itself to account for the collision, but the other vessel has committed a technical fault not shown to have contributed to the collision, and where the error of the latter is minor, doubt as to the latter's conduct will be resolved in her favor. Furthermore, where the active fault of one vessel so flagrantly and heavily outweighs the passive faults of omission of the other vessel, the interests of justice are best served by condemning the more culpable vessel completely.”40

This permitted courts to excuse a vessel from liability even though under the Pennsylvania Rule and divided damages, the vessel would be liable for half the damages.41

Given the sometimes unjust results of the Pennsylvania Rule coupled with divided damages and advent of criticism from scholars and courts alike, the divided damages regime was scuttled for comparative fault with respect to ship collision damages in United States v. Reliable Transfer.42 This case also overruled the major-minor rule that had been created to mitigate the inequitable effects of divided damages, along with the last-clear chance doctrine.43 However, the case and the departure from the divided damages rule left the Pennsylvania Rule intact.44 Under the comparative fault scheme of Reliable Transfer, the Pennsylvania Rule no longer operated to impose half liability on a party that was less than half at fault, because a vessel could only be held liable in proportion to its fault.45

 

            B.    Requirements for Application of the Pennsylvania Rule

At first reading, it may seem as if the Pennsylvania Rule would only apply to collision suits in which statutory or navigational rules designed to prevent collision were violated. The Fifth Circuit has clarified in Candies Towing Co. v. M/V B&C Eserman that it has never held that the Rule only applies to collisions cases.46 There the Court outlined an abundance of precedent showing that the Pennsylvania Rule is applicable outside the context of collisions.47 However, limits on the Rule’s application have been recognized by other circuits and followed by the Fifth Circuit.48

It is generally recognized that not every statutory violation will trigger the Pennsylvania Rule and a vessel guilty of statutory fault will not have to prove its violation had any causal relation to the collision, no matter how speculative, imaginative, or remote.49 This premise can be interpreted three different ways to show whether the Pennsylvania Rule should apply.50 First, a party may rebut the presumption of causation by showing the violation had no connection with the collision. Second, the Pennsylvania Rule may only come into play when the statute or regulation that has been violated was designed to prevent the type of harm that resulted. And thirdly, that a party wishing to invoke the Rule must make a preliminary showing that its cause-in-fact assertion has some plausibility or is reasonable.51 Under these interpretations, the Pennsylvania Rule may or may not be applicable despite a violation of a statute or regulation.

Yet given the expansive nature of the Pennsylvania Rule, certain courts have embraced various legal principles 52 to restrict its application, most prominently through the legal duty requirement.53 Under this requirement, a court will not apply the Pennsylvania Rule for statutory or regulatory violations unless the statute or regulation imparts a clear legal duty.54 Several circuits have held that a statute did not impose a clear legal duty when the law did not delineate a precise and clearly defined duty, but rather called for interpretation and judgment on the part of the operator or allowed judgment and assessment of a particular circumstance.55 Therefore, whenever a statute that permits “circumstantial judgment” is violated, the Pennsylvania Rule will not be applied.56

However, as will be explored below, the narrow view of the legal duty requirement recently has been rejected in favor of a less restrictive standard, bucking the trend of the various circuits to limit the Pennsylvania Rule’s application. In Mike Hooks Dredging Co. v. Marquette Transp. Gulf-Inland LLC, the Fifth Circuit departed from the restrictive legal duty requirements of other circuits, and its own precedent in Tokio Marine, by finding a statute imparts a legal duty if it is part of a statutory scheme that’s general purpose is to prevent collisions.57 The Court held that violation of a rule that is part of a larger scheme of a law with a general purpose to prevent collisions or to promote safety would trigger the Pennsylvania Rule, as it satisfies the legal duty requirement.58 Therefore the Court salvaged the Pennsylvania Rule because most maritime statutes and regulations would be able to meet the legal duty requirement under this lower standard.59 This case will be discussed further below.

There are also instances in which the Pennsylvania Rule may be applicable but is nevertheless discarded. Generally, this includes situations where the statutory violation occurs but the violation is exonerated under the in extremis doctrine.60 This doctrine is based on the maritime rule that a mariner’s judgment in extremis shall not be impeached, or, in other words, that errors in judgment committed by a vessel put in sudden peril, through no fault of its own, are to be leniently judged.61 The Fifth Circuit applied the doctrine in Green v. Crow to find that a vessel’s failure to signal by changing course was excused by the imminent danger to the vessel caused by another ship. Therefore since the violation was excused, the Pennsylvania Rule did not apply.62 However, unlike the legal duty requirement, the precedent concerning the doctrine in extremis has been strictly followed, with courts only applying the doctrine in the direst of situations such as imminent danger of capsizing or sinking.63

 

            C.        Choice of Law and the Pennsylvania Rule

As noted previously, the Pennsylvania Rule is a U.S. law that is unique in tort and maritime law. This creates an issue when parties stipulate certain choice of law provisions that apply to the apportionment of liability in the event of a maritime disaster. One such stipulation is under the 1910 Collision Convention,64 where parties may agree to remove the presumption of a vessel’s liability when the vessel violates certain statutes.65 The Second Circuit addressed the clash of the Pennsylvania Rule with the 1910 Collision Convention in Otal Investments Ltd. v. M/V Clary.66 There, the Court ruled than when the Collision Convention applies the Pennsylvania Rule is inapplicable as the Rule is unique to substantive U.S. law and therefore is not applicable under the Collision Convention.67 This is because under Article 6 of the Convention, legal presumptions of fault with regards to collision liability are forbidden.68 As the Pennsylvania Rule establishes a presumption of whether a party can be held liable, the Court held that it expressly conflicted with the Convention and therefore was inapplicable.69

            D.        Summary of the Rule

The Pennsylvania Rule imposes a presumption of causation on vessels and operators that violate statutory or navigational rules intended to promote safety. The presumption places a higher burden on the statutory offender to show that its violation was not and could not have been a cause of the collision.  Failure to rebut the presumption will not impose or apportion liability upon the violator, but will only answer the threshold question of whether the violator may be found liable.

The purpose of the law was to ease the evidentiary burdens placed on plaintiffs in maritime collision suits by placing the evidentiary burden on the party with superior knowledge of whether its statutory violation contributed to a collision. It also sought to enforce navigational statues and regulations by shifting and increasing the burden of persuasion to the violator.

Certain courts have also sought to limit the Pennsylvania Rule’s application by placing higher standards on when a violation of a statute will give rise to the Rule. Regardless of whether a statute is violated, courts have held that the Rule will not be triggered if the statute or regulation violated does not impart a clear legal duty. However despite a trend of continued restrictions on the Pennsylvania Rule, and the belief by some that the Rule is all but obsolete, the Pennsylvania Rule is very much alive today.  In fact, the 5th Circuit has even re-invigorated the rule by expanding the definition of a clear legal duty.  Thus, it is patent that the Pennsylvania Rule still has an active role in modern maritime jurisprudence.

 

V.        CURRENT LAW AND POSSIBLE FURTHER EXPANSION

As a practitioner, it is enticing to consider the possibility of expanding the Pennsylvania rule apply to violations of regulations that are not statutory in nature or even violations of private agreements such as company safety policies or breaches of contract for safety standards. 

As the law stands now, the answer is almost certainly that the rule will not be applied so broadly.  However, in some instances, breaches of contracts made with the Army Corps of Engineers or violations of Coast Guard permits have triggered the application of the Pennsylvania rule. Furthermore, and as noted above, in terms of general application of the rule, the Fifth Circuit has relaxed the “legal duty” requirement of the violated statute in recent jurisprudence, working to broaden the applicability of the rule.  However, other circuits have simultaneously worked to limit its application.

A.     5TH CIRCUIT AUTHORITY

 In Mike Hooks Dredging Co., Inc. v. Marquette Transp. Gulf Inland, L.L.C., the owner of a dredge brought action against the owner of a passing vessel after allision between the two occurred in the Gulf Intracoastal Waterway (716 F.3d 886 (5th Cir. 2013). The passing vessel counterclaimed, alleging both statutory and Inland Navigation Rule violations by the owner. The United States District Court for the Eastern District of Louisiana (Berrigan), found all parties partially liable for the allision after bench trial, and apportioned liability among those parties. The owner of dredge appealed, arguing that the district court erred in applying to Pennsylvania rule because Inland Navigation Rule 9 (g) (hereinafter “INR 9(g)”) did not set forth a clear legal duty required for application of the rule.70 The Fifth Circuit, however, held that INR 9(g) did set forth a sufficient legal duty for purposes of the Pennsylvania rule because it is part of the “overall scheme [of the INRs] to manage the risk of collisions” (891-2). The Fifth Circuit affirmed the district court’s application of the Pennsylvania rule.                           

 In Billiot v. Boh Bros. Const. Co., L.L.C., the appellant brought an LHWCA claim against Boh Bros. arising out of the death of her husband, due to vessel negligence in failing to administer first aid after her husband fell into the water from the respondent’s vessel. (459 Fed.Appx. 423 (5th Cir. 2012). The appellant argued that the district court erred in failing to apply the Pennsylvania rule to establish per se negligence, but the Fifth Circuit did not reach the inquiry of whether a violation of a general safety regulation properly triggered application of the Pennsylvania rule because the appellant failed to raise an issue of genuine fact as to vessel negligence (424).

In Osprey Ship Management, Inc. v. Foster, the owner of a commercial oceangoing vessel that had collided with a submerged submarine launchway while docking in a river port filed suit against the harbor's compulsory local pilot, pilot's professional association, the owner of submarine launchway, and the United States, alleging negligence (387 Fed.Appx. 425 (5th Cir. 2010). The United States District Court for the Southern District of Mississippi granted summary judgment to the United States and the pilot's association. After bench trial, it also found the compulsory local pilot and vessel master each 50% liable for damages and entered judgment for $1,524,128.58, plus prejudgment interest. The owner of vessel and compulsory local pilot appealed, arguing that because the launchway was longer than its permit allowed, the district court erred in failing to apply the Pennsylvania rule. The Fifth Circuit agreed with the district court’s finding:

“The district court held that the Pennsylvania Rule did not apply to any statutory violations NGSS was alleged to have committed because even if they had been committed, the causal connection between the violations and the allision was implausible because the allision was due to the negligence of Pilot Foster and Captain Potter. The district court held, moreover, that the only relevant statutory violations were committed by Captain Potter and the crew, who violated 33 C.F.R. § 164.11 of the Navigation Safety Regulations, which require that the owner, master, or person in charge of the vessel ensure that the wheelhouse is constantly manned, that the vessel's position at each fix be plotted on a chart and the master informed of the results, that navigational equipment be used to fix the vessel's position, that buoys alone not be used to fix the vessel's position, and that the danger of visual or radar contacts be evaluated and communicated to the person directing the vessel.

Pilot Foster's objection to this ruling on appeal misses the point entirely, focusing solely on whether NGSS violated its permits in building LW1 too long and failing to discuss the district court's holding that regardless of any alleged violations by NGSS, the cause of the allision was Pilot Foster's and Captain Potter's negligence” (435).

            The court focused on the issue of causation, not explicitly rejecting the permit requirements as a sufficient trigger of the Pennsylvania rule.

 In Stolt Achievement, Ltd. v. Dredge B.E. LINDHOLM, the owner of a chemical tanker that collided with a dredge boat sued the boat and its owner for damages (447 F.3d 360 (5th Cir. 2006)). The United States District Court for the Southern District of Texas, Nancy F. Atlas, J., found both ships equally responsible, and plaintiff appealed. The Fifth Circuit affirmed, but, in footnote nine, stated that the Pennsylvania rule was not relevant to the inquiry, addressing the “legal duty” requirement:

“Whether the STOLT ACHIEVEMENT's ‘excessive speed,’ and resultant violation of Inland Rule 6, triggers the Pennsylvania rule is of no moment. A previous panel of this Court, relying on authority from the Second Circuit, stated that the Pennsylvania rule ‘applies only to violations of statutes that delineate a clear legal duty, not regulations that require judgment and assessment of a particular circumstance.’” (see Complaint of Interstate Towing, 717 F.2d 752, 756 (2d Cir.1983); In re Marine Sulphur Queen, 460 F.2d 89, 98 (2d Cir.1972); Afran Transport Co. v. United States, 435 F.2d 213, 218–19 (2d Cir.1970).

   In Tokio Marine & Fire Ins. Co., Ltd. v. FLORA MV, the Fifth Circuit further elaborated its pre-Mike Hooks Dredging legal duty requirement:

“the Pennsylvania rule applies only to violations of statutes that delineate a clear legal duty, not regulations that require judgment and assessment of a particular circumstance.

Specifying the rules that her adversary allegedly violated, FLORA first contends that the trial court erred by failing to take into account FORMOSA SIX's violation of COLREG Rule 5 in apportioning responsibility for the collision. COLREG Rule 5 provides: ‘Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.’ 33 U.S.C. foll. § 1602. FLORA is asking this court to find fault with the district court's failure to acknowledge that SIX's lack of a look-out was “crucial,” and the proximate cause of the accident…The trial court found that FORMOSA SIX had not complied with the cited regulation; that is not disputed. Thus, FLORA's argument involves the district court's weighing of the evidence, not its application of the law. The court erred, FLORA contends, by failing to impose the Pennsylvania burden. But the district court clearly did consider the predicate facts that constitute a violation of COLREG Rule 5. The district court also found that FORMOSA SIX violated that regulation, and that such failure was a contributing cause of the collision. FLORA argues that this was an error of law, and then cites the importance of complying with Rule 5 as well as the importance of having a look-out on the FORMOSA SIX at this critical juncture. The importance of the regulation does not change its application, nor does it impugn the finding of fact made by the district court. The dispute FLORA has is with the district court's finding of fact that FORMOSA SIX's failure to have a look-out was not as “crucial” a factor in the collision as FLORA seeks to make it. However, neither FORMOSA SIX nor the district court clearly indicated why this failure was not to be considered a more critical cause of the accident. But because this finding is reviewed only for clear error, and FLORA has not demonstrated error of that sort, we find that the district court, in its considered judgment, properly weighed FORMOSA SIX's violation of Rule 5 in determining the proximate cause of the collision (235 F.3d 963, 966-8 (5th Cir. 2001)).”

VI.    AUTHORITY FROM OTHER CIRCUITS & DISTRICT COURTS

A.  SECOND CIRCUIT

 In Reynolds v. Sealift, Inc., a seaman brought a Jones Act claim against the owner and operator of ocean-going vessel, alleging injuries sustained when the seaman was hit by a bus while on shore leave (311 Fed.Appx. 422 2nd Cir. 2009). The United States District Court for the Eastern District of New York, Eric N. Vitaliano, J., granted vessel owner's summary judgment motion, and rejected the seaman’s argument that the district court erred in failing to apply the Pennsylvania rule. The Court gave insight as to the scope of the application of the rule in the Second Circuit: “

“Outside of the collision context, that rule is limited to the violation of a statute intended to prevent the catastrophe which actually transpired. That is not this case. The relevant Coast Guard regulations proscribe intoxication while a crewmember is on board a vessel, not while on shore leave. See 33 C.F.R. § 95.020 (referring to intoxication in the course of operating a vessel); 33 C.F.R. § 95.030 (listing acceptable evidence of a “vessel operator['s]” intoxication); 33 C.F.R. § 95.045 (prohibiting, inter alia, intoxication of crewmember “[w]hile on board a vessel”) (425).

B.   NINTH CIRCUIT

In MacDonald v. Kahikolu, Ltd., a diver who sustained an eardrum injury while working for a scuba tour boat brought action against the boat owner, alleging negligence under the Jones Act (581 F.3d 970 (9th Cir. 2009)). The United States District Court for the District of Hawaii entered judgment in favor of the boat owner. The Court of Appeals vacated and remanded. The United States District Court for the District of Hawaii again entered judgment for the company. Diver again appealed, arguing that the district court erred in failing to apply the Pennsylvania rule to his Jones Act claim for CFR violations. The Second Circuit stated that it was unclear as to whether the Pennsylvania rule applied to maritime tort cases outside of collision:

“Despite these regulatory violations, it is not clear that the Pennsylvania Rule applies to cases that do not involve a collision or other “navigational” accident, or to claims made under the Jones Act. In Mathes, we decided that the Rule did not apply to a personal injury claim brought by a plaintiff whose foot was pinned between two ships. 774 F.2d at 982-83. The crew member on one of the ships did not have a local endorsement aboard the ship, as required by Coast Guard regulations. Id. at 983. We declined to apply the Rule, because there was “no conceivable causal connection between the violation and the injury,” and under the Rule, “if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration.” Id. at 983 (citation omitted). We did not, however, explicitly address whether the Pennsylvania Rule could apply to cases that do not involve a collision or navigational accident, nor do any of our prior cases do so” (974) 

The Court went on to comment that other courts have applied the rule broadly to non-collision and non-navigation cases:

“Some other courts have applied the Rule broadly to non-collision and non-navigation cases. For example, the Third Circuit has stated that ‘[a]lthough the Rule originally applied only to collisions between ships, it has been reformulated to apply to any statutory violator who is a party to a maritime accident.’ In re Nautilus Motor Tanker, 85 F.3d 105, 113 (3d Cir.1996) (citing Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1471 (5th Cir.1991)); see also United States v. Nassau Marine Corp., 778 F.2d 1111, 1116 (5th Cir.1985) (“The Rule does not apply only to collisions.”); Reyes v. Vantage S.S. Co., 609 F.2d 140, 145-46 (5th Cir.1980) (applying Rule to Jones Act man-overboard case); In re Seaboard Shipping Corp., 449 F.2d 132, 136 (2d Cir.1971) (applying Rule to man-overboard case and stating that defendant was wrong ‘in its contention that admiralty applies this rule only in collision cases’). However, beyond man-overboard cases, no court has applied the Rule to a Jones Act claim, except for the Alaska Supreme Court in Horton. 70 P.3d at 407. Indeed, although the Second Circuit applied the Pennsylvania Rule in Seaboard Shipping, a Jones Act case, it also stated in another Jones Act case-decided the same year as Seaboard Shipping-that it would not extend the Rule beyond ‘the chosen area of ship collisions.’ Wilkins v. Am. Export Isbrandtsen Lines, Inc., 446 F.2d 480, 486 (2d Cir.1971). It recently has reiterated its skepticism about whether the Rule should apply to Jones Act claims at all. See Wills v. Amerada Hess Corp., 379 F.3d 32, 43-45 (2d Cir.2004) (‘Even if we were persuaded that The Pennsylvania Rule should be applied in some Jones Act cases, we would still decline to apply the rule in cases where, as here, it cannot be said with confidence that the plaintiff's injury resulted from defendant's actions.”) (974-5).

 

   The Court ultimately declined to rule on the issue, stating that the causal connection between the violation and the harm was not sufficient.

 

C.   ELEVENTH CIRCUIT

 In Hatt 65, LLC v. Kreitzberg, the owner of a fishing vessel brought action against yacht owner, seeking to recover for damage sustained by the vessel when the yacht purportedly allided with it while it was moored during a hurricane (658 F.3d 1243 (11th Cir. 2011)). The United States District Court for the Northern District of Florida entered judgment for the yacht owner, and the vessel owner appealed, contending that the Pennsylvania rule should have applied for violation of § 327.40 of the FL statutes. The court held that the Pennsylvania rule did not apply because the regulations were  not intended to prevent allisions:

“We do not believe that the plaintiffs have met their burden of establishing that the ESCAPE was in violation of a statute or regulation intended to prevent allisions at the time it came into contact with the WEJ. The plaintiffs invite our attention to section 327.40 of the Florida Statutes and section 68D–23.102 of the Florida Administrative Code. These provisions concern the permitting of navigational markers to ensure the uniform use of markers over the waters of the State. Nothing in the statute or regulation suggests that these provisions are designed to prevent allisions, much less allisions due to the improper construction or placement of mooring buoys. Indeed, they are silent as to the placement, size, construction or use of mooring buoys. Moreover, the plaintiffs have not pointed to any statutory language, or to any administrative or judicial construction of the statute or regulation, that suggests the purpose of these provisions is to prevent allisions generally or to prevent allisions due to inadequate mooring buoys” (1252-3).

The Court’s analysis in this matter also gives some insight into the Eleventh Circuit’s overall application of the Pennsylvania rule, establishing that as long as a court or administrative body construes that a statute or regulation is intended to prevent collision or allision, then it may trigger the rule.  The Eleventh Circuit determined that the Pennsylvania rule is not applicable when there is a lack of causal connection between the violation and the harm.

 In Superior Const. Co., Inc. v. Brock, passengers who were injured when their pleasure boat allided with a barge sued the charterer of the stationary barge in the United States District Court for the Middle District of Florida (445 F.3d 1334 (11th Cir. 2006)). In this case, the barge was found to be in violation of a FL statute that prohibited obstruction of navigation, and the court found that such a violation of a state statute intending to prevent obstructions to navigation was sufficient to trigger application of the Pennsylvania rule (1347).

 In Orange Beach Water, Sewer, and Fire Protection Authority v. M/V Alva, plaintiff brought action against a vessel when the vessel struck plaintiff’s submarine water pipeline (680 F.2d 1374 (11th Cir. 1982)). The court found that the pipeline was constructed in violation of a permit issued by the Army Corps of Engineers, and this warranted the application of the Pennsylvania rule (1383).

 

D.    EASTERN DISTRICT OF LOUISIANA

 In Slatten, LLC v. Royal Caribbean Cruises Ltd., the District Court for the Eastern District of LA (Vance) considered whether violations of a United States Army Corps of Engineers (“USACE”) permit and a Plaquemines Parish regulation triggered application of the Pennsylvania rule (2014 WL 5524270, Oct. 30, 2014).

“There [was] a question of fact, however, as to the requirements of the USACE permit, and UBT and Marquette contend that the Plaquemines Parish regulation is inapplicable as preempted, an issue that has not been adequately briefed on this motion. Further, the Pennsylvania Rule's presumption ‘applies only to violations of statutes that delineate a clear legal duty, not regulations that require judgment and assessment of a particular circumstance.’ FLORA MV, 235 F.3d at 966.”

Thus the court declined to address violations less than statutory in nature.

         In Lloyd's Syndicate 1861 v. Crosby Tugs, L.L.C., the court found that violation of a Coast Guard safety letter was sufficient to trigger application of the Pennsylvania rule:

“Plaintiffs correctly note that the Pennsylvania Rule is not ‘a hard and fast rule that every vessel guilty of a statutory fault has the burden of establishing that its fault could not by any stretch of the imagination have had any causal relation to the collision, no matter how speculative, improbable, or remote.’ In re Mid–S. Towing Co., 418 F.3d 526, 534 (5th Cir.2005) (quoting Compania De Maderas De Caibarien v. The Queenston Heights, 220 F .2d 120, 122–23 (5th Cir.1955)). But the three statutory violations committed by the RICKY B—an inadequate number of crew members, a violation of the Stability Letter issued by the Coast Guard, and substance abuse by one of the crew members—have a potentially direct relationship to the harm that befell the RICKY B. With regard to the first violation, Scott Thompson, the RICKY B's deckhand, testified that the vessel was not “ready to go offshore” because it was only manned by “three men with no engineer.” It is certainly possible that, had an engineer been aboard the vessel when the engine room began leaking, the engineer could have taken swifter and more effective corrective action than was actually employed, and possibly prevented the vessel from sinking. More generally, had the vessel had four rather than three crew members aboard, there would have been more manpower to deal with the leak. Turning to the second violation, the dictates of the Coast Guard's Stability Letter were clearly aimed at preventing boats from sinking due to instability caused by unsecured cargo. Here, the evidence suggests that the unsecured cargo on the RICKY B contributed in some measure to the vessel's ultimate demise; thus, the rule violated was “intended to prevent the injury that actually occurred.” Nassau Mar. Corp., 778 F.2d at 1116. Finally, with respect to the third violation, the evidence indicates that water began rushing into the engine room after Captain Frank engaged the starboard engine. Had Captain Frank not been impaired at the time he was operating the vessel, he might not have made that decision, and the vessel might have stayed afloat. Again, Coast Guard regulations prohibiting vessel operators from using intoxicants are clearly aimed at preventing accidents caused by impaired individuals. Accordingly, the Court finds that the Pennsylvania Rule applies to these facts” (2014 WL 3587375, E.D. La, July 21, 2014, 6-7) (Vance).

            In In re International Marine, L.L.C. (2013 WL 3293677, E.D. La., June 28m 2013, 4) (Lemmon), the district court noted that the Fifth Circuit has applied the Pennsylvania rule to situations beyond collisions or allisions:

“Although in its original form the rule of The Pennsylvania applied only to collisions between ships, it has been extended in [the Fifth Circuit] to apply to a variety of maritime accidents and to parties other than vessels.” Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir.1991) (citations omitted). “Thus, the rule has been reformulated to apply to any ‘statutory violator’ who is a ‘party to a maritime accident.’ “ Id. (citing Sheridan Transp. Co. v. United States, 834 F.2d 467, 476 (5th Cir.1987)). The Pennsylvania Rule applies to allisions and “to those who do not properly mark an object in navigable waters.” Id. (quoting Gele v. Chevron Oil Co., 574 F.2d 243, 247 (5th Cir.1978)); see also Trico Marine Assets Inc. v. Diamond B Marine Serv. Inc., 332 F.3d 779, 786 (5th Cir.2003) (citations omitted).

 This case further demonstrates the contrast between the Fifth Circuit’s broad application of the Pennsylvania rule versus the stricter application of other circuits.

E.  DISTRICT OF MASSACHUSETTS

In Sterling Equipment, Inc. v. M/T Great Eastern, the District Court for the District of Massachusetts held that Rule 2 of the Inland Navigation Rules does not trigger the application of the Pennsylvania rule because “Rule 2 is simply a precatory statement and the Inland Navigation Rules run alongside rather than supplant existing Maritime Rules and Customs…Rule 2 does not stand as a statutory rule the violation of which would provide a basis for invoking the Pennsylvania Rule's burden shifting regime” (52 F.Supp.3d 76, 83 (D. Mass. 2014)).

VII.     LEGAL SCHOLARSHIP

The rule set forth by The Pennsylvania requires that the violation triggering application of the Pennsylvania Rule be an “actual violation of a statutory rule to prevent collision” (86 U.S. 125, 136 (1873)). According to American Law Reports, the Pennsylvania rule requirements for application are as follows: (1) proof by a preponderance of the evidence of a violation of a statute or regulation that imposes a clear mandatory duty as opposed to rules requiring judgment and assessment of particular circumstances, (2) the statute or regulation must involve marine safety or navigation, and (3) the injury suffered must be of a nature that the statute or regulation was intended to prevent (66 A.L.R.6th 185). This ALR continues on to note that the sort of statutory violation generally required by the U.S. federal courts most often concerns either the Inland Rules of Navigation (33 U.S.C.A. §§ 2001-20173) or the International Regulations for Preventing Collisions at Sea, or the COLREGS at 33 U.S.C.A. §§ 1602 et seq. This report, with the support of case law of the circuit courts, emphasizes that the source from which the regulation originates is not as vital to the Pennsylvania rule analysis as the regulation or statute’s imposition of a clearly articulated duty. Furthermore, the ALR outlines that there have been instances where the rule did not apply in cases that involved a violation of a general safety law rather than an explicitly maritime statute or regulation. The courts in the following cases held that the Pennsylvania rule did not apply to the violation of general safety laws rather than maritime regulations or statutes.

In Jones v. Spentonbush-Red Star Co., the Second Circuit Court of Appeals held that a violation of an Occupational Safety and Health Administration (OSHA) regulation was not sufficient to trigger application of the Pennsylvania rule (155 F.3d 587, 1999 A.M.C. 324 (2d Cir. 1998)).

“The plaintiff in this case was a deckhand who suffered an eye injury, while working aboard his employer's tugboat, from using a metal grinding wheel that lacked a safety guard. Although he was wearing safety glasses, a shard flew into the corner of his eye and caused permanent damage. He sued the employer under the Jones Act and general maritime law. The jury rendered a verdict for the plaintiff, but the district court granted the defendant employer's motion for judgment as a matter of law. On appeal, the plaintiff argued, inter alia, that the district court erred in refusing to instruct the jury that an OSHA violation either established the defendant's negligence per se or shifted the burden of proof on causation to the defendant under the Pennsylvania Rule. The court noted that OSHA regulations apply to working conditions of employees aboard ships that are not inspected by the Coast Guard so that they applied to this tugboat, which was local and uninspected. One regulation requires that a grinding wheel have a safety guard, 29 C.F.R. § 1910.243, and the defendant conceded that it was in violation. The plaintiff offered several precedents for either finding negligence per se or applying the Pennsylvania Rule, but the court noted that all those cases involved violations of Coast Guard regulations or maritime statutes. In this case, however, the defendant violated an OSHA regulation. The court opined that Congress did not intend the Occupational Safety and Health Act to apply to maritime situations unlike maritime statutes that specifically address shipping activities. It declined to treat an OSHA violation as negligence per se because the statute and regulations do not delineate a per se rule but act as evidence of a standard of care. As to shifting the burden of proof, the court held that this would unfairly affect an employer's liability. At most, it concluded, a violation of an OSHA regulation would be properly admissible at trial as evidence of negligence and possibly could serve as a basis for imposing administrative penalties. The court affirmed the district court's judgment.”

In Crane v. Department of Transp., a Washington appellate court held that the Pennsylvania rule did not apply to a violation of a general safety statute not falling within maritime law (102 Wash. App. 1048, 2000 WL 1468806 (Div. 1 2000), published at, 103 Wash. App. 427, 13 P.3d 642 (Div. 1 2000)).

“The plaintiff seaman alleged that she contracted hepatitis C from being stuck by a discarded needle wedged inside a seat cushion while she was cleaning a ferry passenger cabin. She sued her employer and the State Department of Transportation, alleging that her injury resulted from their failure to follow regulations regarding blood-borne pathogens. She further argued that, under the Pennsylvania Rule, their violation of state safety regulations shifted the burden of proof regarding causation onto them. The trial court held that the Pennsylvania Rule did not apply and granted the defendants' motion for summary judgment based on the plaintiff's failure to prove causation. On appeal, the court found no precedent for applying the Pennsylvania Rule where a defendant violated a general safety statute as opposed to a maritime law or rule, and it declined to significantly broaden the Rule's application in this case.”

The report also notes that general application of the Pennsylvania rule has expanded and contracted, depending on the jurisdiction and type of regulation violated:

“Courts have applied the Pennsylvania Rule where the rules or statutes violated were intended to prevent the types of accidents that actually occurred. Other decisions have held that the Pennsylvania Rule was triggered by violations of rules prohibiting obstructions to navigation, the ‘lookout rule’, the conditions underlying federally issued permits, Coast Guard regulations, and many other maritime rules…

On the other hand, in many other circumstances, courts have held that the Pennsylvania Rule should not apply. It clearly did not apply where there was in fact no violation of any statute or rule. Nor would it apply where a violated rule did not impose a clear mandatory duty [see Mike Hooks Dredging]. Further, courts have declined to apply the Pennsylvania Rule where a statute that was violated was not intended to prevent the mishap that occurred, or where a violation did not actually cause the accident at issue, or where the cause of an accident was altogether unknown. In some cases, courts have declined to apply the Pennsylvania Rule to one party's actions when the other party was clearly the sole cause of an accident. Other decisions have held that it is inapplicable to violations of general safety rules unrelated to admiralty.”

In the Tulane Law Maritime Journal case note entitled “Admiralty’s Vestigial Tail: The Fifth Circuit Revitalizes The Outdated Pennsylvania Rule,” the 5th Circuit’s decision in Mike Hooks Dredging Co., Inc. v. Marquette Transp. Gulf-Inland, L.L.C. is explored in relation to its treatment of the Pennsylvania rule (38 Tul. Mar. L.J. 709). The case note explains that the 5th Circuit’s decision in Mike Hooks Dredging works to expand the scope of the application of the Pennsylvania rule by somewhat relaxing the “legal duty” requirement of the violated statute.

“The court's determination that INR 9(g) imposes a legal duty as part of the INR's general purpose of preventing marine collisions is a novel application of the legal duty requirement that deviates from prior jurisprudence. Previous courts that applied the legal duty requirement held that it precluded the Pennsylvania Rule's use for violations of statutes or regulations that allowed circumstantial judgment by vessel operators. The court in Mike Hooks Dredging disregarded this line of legal duty analysis, holding instead that INR 9(g) imposes a legal duty as “part of the INR's overall scheme to manage the risk of collisions.” Thus, the court in Mike Hooks Dredging introduced a new formulation of the legal duty requirement that is satisfied as long as a statute or regulation is part of a larger statutory scheme with a unifying purpose. The new legal duty analysis advanced in Mike Hooks Dredging undermines the legal duty requirement's efficacy as a limitation on the Pennsylvania Rule. It is more easily satisfied and therefore less likely to preclude the rule's application. This version of the legal duty requirement is more easily satisfied because, even if a statute or regulation allows circumstantial judgment by a vessel operator, it can still impose a legal duty as long as it is part of a statutory scheme with a general purpose.” 

            This decision is contrasted with the jurisprudence of the 2nd and 11th Circuit Courts of Appeal, which require a more strictly defined legal duty for application of the Pennsylvania rule.

A brief article appearing in the Michigan Bar Journal entitled “Use of the Pennsylvania Rule in Recreational Boat Accident Cases: An Enormous Aid to Litigants” notes that “in states where recreational boating is popular, there are a host of state and local statutes regulating boating safety, the breach of which may form the basis for applying the rule” (30). This contention implies that breaches of legal rules falling outside of federal maritime law could possibly trigger application of the rule. Additionally, an article entitled “The Legal Story of Pennsylvania: A Forward to Aft Inspection of a Landmark Admiralty Case” appearing in the Journal of Maritime Law and Commerce” observes that

“American courts have also extended the ‘Pennsylvania Rule’ presumption beyond its original factual context--that is, the violation of a statutory navigation rule designed to prevent ship collisions at sea--to encompass practically all violations of statutory or regulatory duties in admiralty matters when tortious damage occurs” (359).

This article goes on to contend that scholars who have stated or predicted that the Pennsylvania rule is no longer relevant and should be overruled or otherwise done away with do so due to the rule’s perceived harshness in its actual implementation and application in cases; however, it was conceded that the rule remains relevant (360). Comparing this contention to the 5th Circuit’s expanding of the applicability of the rule in Mike Hooks Dredging, implies that the 5th Circuit’s treatment of the rule works to extend its life in the maritime law.

In the article entitled “Admiralty’s In Extremis Doctrine: What Can be Learned from the Restatement (Third) of Torts Approach?,” an article featured in the Journal of Maritime Law and Commerce in April of 2012, the author reiterates the value in finding that the rule violated must have been intended to prevent collisions (159). Following, the author offers an argument for the elimination of the Pennsylvania rule, advocating for a system that initially imposes the burden of proof for fault on the claimant:

“Following the U.S. Supreme Court's 1975 decision in Reliable Transfer to substitute a rule of comparative fault for the former rule of divided damages the admiralty bench and bar scrambled to determine how the new rule would affect some of the traditional ‘defenses’ to liability. The ‘major-minor fault’ and ‘last clear chance’ rules were soon found to be obsolete under Reliable Transfer. Some thought the Pennsylvania Rule, innocent cargo rule and superseding cause rule would similarly fall by the wayside. So far, however, the latter rules have survived the Reliable Transfer decision.

The Pennsylvania rule has clearly survived the adoption of comparative fault by the Supreme Court in Reliable Transfer. Nevertheless, the rule's detractors outnumber its defenders by several orders of magnitude. It is a product of the time when formal rules were few and salient and there might well have been a common-sense justification for a presumption that when one of those early rules was violated it likely was a cause of the casualty. Today, by contrast, the rules are legion and some are downright picayune.

Were the Pennsylvania rule to be abolished, bringing the U.S. in line with the states-parties to the 1910 Brussels Collision Convention, one ‘rule’ in the in extremis doctrine, while still relevant, would be less critical--the rule on excused violations. Without the looming burden imposed by the Pennsylvania rule, the focus would likely shift from a search for any possible basis for finding statutory fault to a more balanced examination of faults that were demonstrably causative, with the burden of proof being placed on the claimant. In short, if the Pennsylvania rule were eliminated both parties to the litigation--stand-on and give-way--would be required to prove causative fault, as they are under the 1910 Brussels Collision Convention.”

 

VIII.    THOUGHTS ON FURTHER EXPANSION/CONCLUSION

           

Though it is unclear and unlikely that a violation of a something like a company safety policy or other privately instituted regulation would trigger application of the Pennsylvania rule, the Fifth Circuit has recently broadened the scope of the application of the rule, distinguishing itself from the other circuits that tend to apply the “legal duty” requirement more strictly. The direction of the Pennsylvania rule largely depends on the will and reasoning of the courts, as much judicial discretion is allotted to its interpretation. Although application of the Pennsylvania rule to violations that are less than statutory in their authority is not likely to occur soon, the Fifth Circuit’s broadening of its scope implies that opening up the rule’s application to such violations may be possible in the future.

 

 

1 Nicholas J. Healy, Collision Law During the Last Quarter-Century of the Millennium, 73 Tul. L. Rev. 1789 (1999).

2 The Pennsylvania, 86 U.S. 125, 22 L. Ed. 148 (1873).

3 See 2 Thomas J. Schoenbaum, Admiralty and Maritime Law §14-3, at 123 (5th ed. 2011).

4 The Catharine, 58 U.S. 170, 171, 15 L. Ed. 233 (1854) abrogated by United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975).

5 See Candies Towing Co., Inc. v. M/V B&C Eserman, 673 F.2d 91, 1983 A.M.C. 2033 (1982).

6 See generally United States v. Reliable Transfer Co., supra note 4.

7 See generally George Rutherglen, Not with A Bang but A Whimper: Collisions, Comparative Fault, and the Rule of the Pennsylvania, 67 Tul. L. Rev. 733 (1993).

8 The Pennsylvania, supra note 2, at 126-27.

9 Id.

10 The Pennsylvania, supra note 2, at 135-36, quoting The Emperor, Holt's Rule of the Road, 38,

 “It is not advisable to allow these important regulations to be satisfied by equivalents, or by anything less than a close and literal adherence to what they prescribe.”

11 Id. at 136

12 Id.

13 See Schoenbaum, supra note 2, §14-3, at 123.

14 See Nicholas J. Healy & Joseph C. Sweeney, The Law of Maritime Collision, 46 (1998).

15 The Pennsylvania, supra note 2, at 138.

16 See Schoenbaum, supra note 2, §14-3, at 130-31. The divided damages rule apportioned liability for maritime torts equally among all parties at fault

17 The Pennsylvania, supra note 2, at 136, “Such a rule is necessary to enforce obedience to the mandate of the statute.”

18 See Id. citing The Fenham, 23 Law Times, 329.

19 Id.

20 Id. at 134-35.

21 See id.at 135. The rule itself is not promulgated until later in the opinion and after the PENNSYLVANIA was already held at fault.

22 Id.

23 See Schoenbaum, supra note 2, §14-3, at 123-24. Several courts have also reached this conclusion that one of the purposes behind the PA rule was to enable courts to be able to determine causation by placing the burden of proof on the violator who was in the best position to know whether the violation contributed to the collision.

24 See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472, 1994 A.M.C. 1034, 1043 (5th Cir.1991)(holding that the Pennsylvania Rule “merely allocates a burden of proof; it does not affix liability”).

25 See Otto Candies, Inc. v. M/V Madeline D, 721 F.2d 1034, 1036 (5th Cir. 1983) citing Florida East Coast Railway Company v. Revilo Corporation, 637 F.2d 1060, 1065-66 (5th Cir.1981); Green v. Crow, 243 F.2d 401, 403 (5th Cir.1957).

26 For example Comparative Fault; See Reliable Transfer, supra note 4.

27 See Rutherglen, supra note 7, at 735.

28 Id.

29 See Otto Candies, supra note 25, at 1036.

30 Id.

31 See Candies Towing, supra note 5,

32 Compania De Maderas De Caibarien, S. A. v. The Queenston Heights, 220 F.2d 120, 123 (5th Cir. 1955) citing Seaboard Tug & Barge v. Rederi AB/Disa, 213 F.2d 772, 775  (1st Cir. 1954)

33 Seaboard Tug & Barge, supra note 32.

34 See Schoenbaum, supra note 2, §14-3, at 130-31, and The Catharine, supra note 4.

35 See id. and Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty ¶7.5, at 492 (2d ed. 1975).

36 See Rutherglen, supra note 7, at 735.

37 Id at 733.

38 William L. Peck, The Pennsylvania Rule Since Reliable Transfer, 15 J. Mar. L. & Com. 95, 96 (1984).

39 See Compania De Maderas De Caibarien, supra note 32, at 123. (The major-minor fault rule, which relieved a vessel whose fault was relatively minor from any liability for the collision.); Also see William Tetley, The Pennsylvania Rule—An Anachronism? The Pennsylvania Judgment—An Error, 13 J. Mar. L. & Com. 127, 141, (1982)(The last clear chance rule).

40 Id. citing The Great Republic, 23 Wall. 20, 90 U.S. 20, 23 L.Ed. 55; The Lord O'Neil, 4 Cir., 66 F. 77.

41 See Green v. Crow, supra note 25 at 403 citing Coyle Lines v. United States, 195 F.2d 737, 739, (5th Cir. 1952). (“All of these presumptions, in the final analysis, are mere aids to the court in getting at the right of the matter, and their relative weight must depend upon the circumstances of the particular case.”)

42 See Reliable Transfer, supra note 4.

43 LR5 at 271-272 FN 52; LR6 FN 25, 26

44 See Florida E. Coast Ry. Co. v. Revilo Corp., supra note 25, at 1068. (Stating that the Pennsylvania rule survived the Supreme Court's decision in United States v. Reliable Transfer, and is therefore still alive in this circuit as a procedural device which shifts the burden of proof on the issue of causation.) See also Allied Chem. Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044, 1052 (5th Cir. 1981) (The Pennsylvania Rule still floats, in the wake of U.S. v. Reliable Transfer, which only overruled The PENNSYLVANIA on the point of allocating comparative fault.) See also Atlantic Mutual Insurance Co. v. ABC Insurance Co., 645 F.2d 528, 531 n.9 (5th Cir. 1981).

45 See Rutherglen, supra note 7, at 734.; See Reliable Transfer, supra note 4, at 411.Reliable Transfer at 411; For overview of Pennsylvania Rule in wake of Reliable Transfer also see Sheridan Transp. Co. v. United States, 834 F.2d 467, 478 (5th Cir. 1987)

46 See Candies Towing, supra note 5.

47 Id. See Reyes v. Vantage Steamship Co., 558 F.2d 238 (5th Cir. 1977) (Rule applied to vessel for lacking a required line-throwing device and crew in violation of maritime rescue doctrine for not attempting to save drowning sailor.); In re Seaboard Shipping Corp., 449 F.2d 132, 1971 A.M.C. 2152 (5th Cir. 1972) (Absence of statutorily mandated throwing line triggers Pennsylvania Rule.); Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958) (fire on a tug caused by open-flame kerosene lamp carried on scow in statutory violation.); The Denali, 112 F.2d 952 (9th Cir. 1940) (stranding case).

48 See Compania De Maderas De Caibarien, supra note 32, at 123, citing Seaboard Tug & Barge, supra note 32 at 775.

49 Id.

50 See In re Denet Towing Servs., Inc., 178 F. App'x 427, 429 (5th Cir. 2006) citing id.

51 David W. Robertson & Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 31 Tul. Mar. L.J. 463, at 600 (2007).

52 See In re J.W. Wescott Co., 257 F.Supp.2d 891, 892, 894-95, 2003 A.M.C. 2549, 2550-51, 2553 (E.D. Mich. 2002). and Self Towing, Inc. v. Brown Marine Services, Inc., 837 F.2d 1501, 1504. (It should be noted that courts will often find that no statutory violation occurred thus precluding application of the Pennsylvania Rule altogether.)

53 See Kitz, supra note 46, at 711.

54 Id.

55 See Tokio Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 966 (5th Cir. 2001);

and Complaint of Interstate Towing Co., 717 F.2d 752, 755 (2d Cir. 1983).

56 See Kitz, supra note 46, at 712.

57 Mike Hooks Dredging Co. v. Marquette Transp. Gulf-Inland, L.L.C., 716 F.3d 886, 889 (5th Cir. 2013).

58 See Kitz, supra note 46 at 718-19.

59 See Mike Hooks, supra note 60 at 893. (It should also be noted that the Fifth Circuit expressly disagreed with the 11th Circuit’s ruling in Interstate Towing that violation of the Inland Navigational Rule 9(g) required proof that the vessel obstructed navigation.)

60 See Schoenbaum, supra note 2, §14-3, at 126-27.

61 Crescent Towing & Salvage Co. v. Chios Beauty MV, 610 F.3d 263, 267, 2010 AMC 2946, 2951 (5th Cir. 2010) (quoting Union Oil Co. v. Tug Mary Malloy, 414 F.2d 669, 674, 1969 AMC 2254, 2260 (5th Cir. 1969).

62 See id. and Green v. Crow, supra note 25, at 403.

63 See Mike Hooks, supra note 60 at 892-94.

64 See generally Francesca Morris, The Pennsylvania Rule: No Longer the Rule?, 32 Tul. Mar. L.J. 131 (2007) (Also known as the Brussels Convention for the Unification of Certain Rules of Law with Respect to Collision Between Vessel, 1910. (It should be noted that the U.S. is not a party to the 1910 Collision Convention.)

65 See Otal Investments Ltd. v. M.V. Clary, 494 F.3d 40 (2d Cir. 2007)

66 Id.

67 See Id at 51-52.

68 See Morris, supra note 67, at 143, n.92.7

69 Id. See also Ishizaki Kisen Co. v. U.S., 510 F.2d 875, 1975 A.M.C. 287 (9th Cir. 1975).

70 Originally enacted by Congress, the INRs established the “rules of the road” for proper navigation based on long-standing principles and were intended to prevent collisions in inland waterways. Indeed, the INR “apply to all vessels upon the inland waters of the United States” 33 C.F.R. § 83.01(a) (INR 1). INR 9 sets forth the rules for vessels operating in narrow channels. 33 C.F.R. § 83.09. Subsection (g) states, “Avoidance of anchoring in narrow channels. Every vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel.” Id.; see also 33 C.F.R. 83.02(b) (Rule 2) (In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger).