Veendam runs into a crane...blog from ship

[Maritime51]

Ah, perhaps the ground of your confusion is the belief that despite concurrent negligence on the part of the master, for which the shipowner is liable by respondeat superior, and the pilot, somehow the shipowner, AS TO THE JUDGMENT CREDITOR, is only liable for his "share" of casually-connected fault.

Think again: when the master/shipowner and pilot are jointly and severally liable owing to concurrent negligence, EACH is liable ("unlimited liability"-sic) to pay the ENTIRE judgment to the plaintiff/judgment creditor, though the party who does "may" have a contribution right against the other for such per cent of fault as the other may have.

So, let's take the facts in the case quoted above where each, AMONG THEMSELVES, was found 50% at fault (each is FULLY liable to the plaintiff per joint and several liability): would you rather be in the pilot's position where the shipowner has been forced to pay 100% of the judgment by post-judgment remedies (deep pocket defendant) or the shipowner's position in a contribution action against the pilot to recover 50% of the judgment paid?

I would suggest to you that in any rational sense the shipower will wind up paying 100% of the judgment, and the underwriters expect this result in almost all cases since pilots are almost always grossly underinsured, if at all.

Now, some authority for your positions other than your mere conclusions would be appreciated.

[Maritime51]

For those still interested, the issue, framed under the misnomer of "unlimited liability," is whether two or more corporate or natural persons, whose negligence combined to produce one result (concurrent negligence) are "jointly and severally liable" for the entire judgment under the general maritime law, regardless of their rights "inter sese" or among or between themselves.

Apparently, Billie, [B]who cites no authority and provides mere conclusions of law,[/B] believes a shipowner is not jointly and severally liable with the pilot to satisfy the claimant's injury or damages claims, but can "limit" his or her liability to any share of fault apportioned to them, whereas I contend, and cite authority, that the shipowner, regardless of his or her rights for contribution against the pilot, can be forced to pay the ENTIRE judgment, even if he or she is found but 1% at fault, assuming concurrent negligence.

The following well-reasoned 5th Circuit opinion makes it clear and unambiguous that the rule of decision, under the general maritime law of the UNITED STATES (maybe Billie is a non-citizen?), applies joint and several liability to joint tortfeasors, such that each is liable to the claimant for the whole, regardless of contribution rights among them:

[URL="http://bulk.resource.org/courts.gov/c/F3/61/"]« up[/URL]
61 F.3d 1113
1996 A.M.C. 1, 64 USLW 2113
Earl Wayne COATS, Plaintiff-Appellee, Cross-Appellant,
v.
PENROD DRILLING CORPORATION, et al., Defendants,
Penrod Drilling Corporation, and Hytorc, M.E.,
Defendants-Appellants, Cross-Appellees.
No. 92-7378.
United States Court of Appeals,
Fifth Circuit.
Aug. 8, 1995.
Bernard H. Ticer, James O.M. Womack, Burke & Mayer, New Orleans, LA, James O. Dukes, Bryant, Clark, Dukes, Blakeslee, Ramsay & Hammond, Gulfport, MS, for Penrod Drilling Corp.
William B. Gibbens, III, Gelpi Sullivan, Carroll & Gibbens, New Orleans, LA, for Hytorc, M.E.
William A. Abernethy, Meredith, Donnell & Abernethy, Corpus Christi, TX, for amicus curiae Intern. Ass'n of Drilling Contractors.
Maurice C. Hebert, Jr., David M. Flotte, Hebert, Mouledoux & Bland, New Orleans, LA, for appellees.
Yancey White, White, Huseman, Pletcher & Powers, Corpus Christi, TX, for amicus curiae Texas Residents, etc.
Harvey J. Lewis, Lawrence Kullman, Lewis & Kullman, New Orleans, LA, for amicus curiae La. Trial Lawyers Ass'n.
Appeals from the United States District Court for the Southern District of Mississippi.
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.
KING and PATRICK E. HIGGINBOTHAM, Circuit Judges:

[B]1For more than a century, general maritime law has held joint tortfeasors jointly and severally liable for all of the plaintiff's damages suffered at their hand. Under that rule, the risk of noncollection is borne by the defendants. The plaintiff can collect his entire judgment from a single defendant, leaving to the defendants allocation of fault among themselves. We reheard this case en banc to consider the contention that we should adopt a new rule of "modified joint liability." This proposal would limit each joint tortfeasor's maximum liability to the amount for which that tortfeasor would have been liable to the plaintiff if only the negligence of that tortfeasor and the negligence of the plaintiff were compared. The new rule would, for the first time in maritime history, shift the risk of noncollection to the plaintiff. It would allocate the risk of noncollection of an admiralty judgment among the contributorily-negligent plaintiff and the defendants in proportion to their respective faults. Because replacing joint and several liability in the general maritime law with modified joint liability would be neither authorized nor prudent, we affirm the judgment of the district court.[/B]
[B][TEXT REMOVED OWING TO FORUM CONSTRAINTS-THE CITATION CAN BE FOUND BY GOOGLE SEARCH][/B]

READER'S DIGEST VERSION: if the master/shipowner FAILS (omission) to intervene, he or she is jointly and severally liable for all damages (plaintiff can collect all from him/them if he or she wishes, without resort to the pilot), and if the master/shipowner intervenes (an act) and is negligent, the result can be the same.

Sum: given the "reality" of insolvent, underinsured or judgment-proof pilots, it is only a reckless maritime lawyer who will not (1) join the shipowner, (2) try to assert negligence in EITHER failing to intervene or in intervention, and (3) seek joint and several liability!

[bob brown]

Love this thread!
One thing that surprised me is the fact that the spokesperson for Costa (or was it parent Carnival Corp.), so quickly 'threw the captain under the bus', so to speak.
Usually, companies or parties in such situations will never publicly admit blame, but rather say they have no comment until a thorough investigation by the appropriate authority finds the cause. The corporation's legal team must have cringed when they heard that statement.

Next question for Maritime51: Is a holding corporation liabel for the actions of its wholly owned subsidiaries? I had thought that the purpose of keeping them separate was to limit the liabilities as in an LLC?

P.S. ATP, eh? Very impressive. You sound like John Nance....:cool:

[Maritime51]

[quote name='bob brown']Love this thread!
One thing that surprised me is the fact that the spokesperson for Costa (or was it parent Carnival Corp.), so quickly 'threw the captain under the bus', so to speak.
Usually, companies or parties in such situations will never publicly admit blame, but rather say they have no comment until a thorough investigation by the appropriate authority finds the cause. The corporation's legal team must have cringed when they heard that statement.

Next question for Maritime51: Is a holding corporation liabel for the actions of its wholly owned subsidiaries? I had thought that the purpose of keeping them separate was to limit the liabilities as in an LLC?

P.S. ATP, eh? Very impressive. You sound like John Nance....:cool:[/quote]

I speculate the limitation action is coming on fast, and by throwing the captain under the bus, "they" are laying the foundation for saying this was a detour from his authority, and "they" were without privity or knowledge.

As my detractor pointed out, I'm not a "corporate lawyer." Aw, heck, I'm a "swinging crane," and I'll take a shot: the claimants are unlikely to pierce the corporate veil, if they try.

[Patone]

I started reading this post (today) as I'm getting on the Veendam in May and was interested to know how it turned out (the damage) Didn't ever seem to get to that but as I saw so many pages for this post I thought something major had occured. Still don't know what shape she is in.

[Maritime51]

I started reading this post (today) as I'm getting on the Veendam in May and was interested to know how it turned out (the damage) Didn't ever seem to get to that but as I saw so many pages for this post I thought something major had occured. Still don't know what shape she is in.

See number 1, but I opine about 100 feet. Also, one of the officers told me that as of the end of that cruise, ALL smoking would be prohibited-a good thing!

[Betsy515]

Do you know if they fixed the rail? I'd it continue to sail? We are booked on the veendam in may.

[tjcox9]

See number 1, but I opine about 100 feet. Also, one of the officers told me that as of the end of that cruise, ALL smoking would be prohibited-a good thing!

 

Just off the Veendam from the voyage following the one on which the crane incident occurred. Sad to say, that all smoking was NOT prohibited. It was still going on in the Crow's Nest and I also smelled it while walking through the casino area once or twice. However, that may be because we were in Antarctic waters and there was no smoking or food allowed outside on any open deck during that period.

 

Hopefully, it will go into full scale implementation now that the two cruises that visit this wonderful area are complete - at least one would hope so.

 

They even announced that smoking would be allowed IN CABINS during this time period and banned on the balconies for this reason. However, that did not stop someone from smoking on the balcony as we smelled it several times while we were using ours while in the Antarctic waters.

 

[tjcox9]

Do you know if they fixed the rail? I'd it continue to sail? We are booked on the veendam in may.

 

This was repaired very quickly from what we understand. The only visible evidence of this incident is the black covering over the affected window area in the back of the Crow's Nest, starboard side and a small area on the outside deck on 12 near the window area that is blocked off due to the window problem.

[Maritime51]

Just off the Veendam from the voyage following the one on which the crane incident occurred. Sad to say, that all smoking was NOT prohibited. It was still going on in the Crow's Nest and I also smelled it while walking through the casino area once or twice. However, that may be because we were in Antarctic waters and there was no smoking or food allowed outside on any open deck during that period.

 

Hopefully, it will go into full scale implementation now that the two cruises that visit this wonderful area are complete - at least one would hope so.

 

They even announced that smoking would be allowed IN CABINS during this time period and banned on the balconies for this reason. However, that did not stop someone from smoking on the balcony as we smelled it several times while we were using ours while in the Antarctic waters.

 

 

That's really a shame-I had smokers on either side of me, and I, too, couldn't use my balcony at times in Antarctica.

 

What kind of weather did you have in Antarctica?

 

I guess the "joint and several liability" debate is now over, and the "water" is now relatively safe for me!

[tjcox9]

That's really a shame-I had smokers on either side of me, and I, too, couldn't use my balcony at times in Antarctica.

 

What kind of weather did you have in Antarctica?

 

I guess the "joint and several liability" debate is now over, and the "water" is now relatively safe for me!

 

Due to the forecast of severe weather in the Drake Passage, we skipped Ushuaia (darn, my favorite port of this agenda) and headed across the Drake the day before the weather was to arrive. Drake was reasonably smooth on both crossings.Some may not have thought so, but no major issues like crashing dishes, etc.

 

Our first full day was the worst, perhaps because of the weather pattern mentioned above. Neumayer Channel was somewhat fogged in, but still eerily beautiful. However, by the time we were to enter the Lemaire Channel, it was SO foggy that it was useless and besides, they probably couldn't have seen the ice around us anyway. So decision was made to turn about.

 

The other two days were spectacular. And, our last scenic viewing was at Elephant Island and it was spectacular. We've been there twice before and once, it was invisible in the clouds/fog. The second time, only one end of it was visible. It was spectacular this time.

 

The trips into Esperanza station and to Andvord Bay were magnificent. It was amazing the way the ship moved among the icebergs to get close to the huge penguin colonies. Great trip, over all. Our weather in Port Stanley was also great, sunny, and probably in the 70's. Great trip, overall. And I've run out of adjectives to describe our scenic viewing! :)

 

[Maritime51]

Due to the forecast of severe weather in the Drake Passage, we skipped Ushuaia (darn, my favorite port of this agenda) and headed across the Drake the day before the weather was to arrive. Drake was reasonably smooth on both crossings.Some may not have thought so, but no major issues like crashing dishes, etc.

 

Our first full day was the worst, perhaps because of the weather pattern mentioned above. Neumayer Channel was somewhat fogged in, but still eerily beautiful. However, by the time we were to enter the Lemaire Channel, it was SO foggy that it was useless and besides, they probably couldn't have seen the ice around us anyway. So decision was made to turn about.

 

The other two days were spectacular. And, our last scenic viewing was at Elephant Island and it was spectacular. We've been there twice before and once, it was invisible in the clouds/fog. The second time, only one end of it was visible. It was spectacular this time.

 

The trips into Esperanza station and to Andvord Bay were magnificent. It was amazing the way the ship moved among the icebergs to get close to the huge penguin colonies. Great trip, over all. Our weather in Port Stanley was also great, sunny, and probably in the 70's. Great trip, overall. And I've run out of adjectives to describe our scenic viewing! :)

 

 

Too bad about Chile, a really beautiful place-I found the Falklands amazing, as well.