REMARKS / Lesson for liability management in all transport modes: In an “allision” (maritime speak for NOT a “collision”) between inland river barge and bridge, National Transportation Safety Board’s (NTSB’s) “probable cause: (1) Contract river pilot’s navigation mistakes (primary), (2) absence of needed bridge lighting (contributing), and (3) “failure to exercise effective safety oversight of the [barge’s] operations” by company that employed contract river pilot (contributing). Note well: 3 of the NTSB’s 14 findings related to “safety management system [SMS]” for the barge and safety practices of contract river pilot’s employer. Comment: The old canard of “blame-the-pilot” in this and other transport modes is slowly changing with the coming era of SMS and organizational (not just individual) responsibility for operational safety.

On May 14, 2013 the NTSB issued its report in a public meeting relating to the allision between an inland river barge Cargo Vessel M/V Delta Mariner and Eggner’s Ferry Bridge Tennessee River near Aurora, Kentucky on January 26, 2012.

See brief website announcement here.

See abstract of NTSB report here.

Note these three findings:

“9. The Delta Mariner’s safety management system was not effectively implemented on board the vessel at the time of the accident.

“10. Foss Maritime Company provided ineffective oversight of the safety of Delta Mariner operations.

“11. The expertise, duties, and responsibilities of the Delta Mariner contract pilots were inadequately defined.”

Legal Take-Away:

Strictly speaking, an NTSB report of this sort might be said to have no “legal effect” at all due to statutory proscriptions against use of the report for specified purposes in evidence. 

Specifically relating to maritime situations, Alan Weigel, Esq. of Blank Rome LLP last year wrote an excellent summary of the sense in which this is true of NTSB reports (and U.S. Coast Guard reports) – and more importantly, showing that this is not fully correct as a generalization. Available here (law firm publication “Mainbrace” at page 6).

And similar generalizations and exceptions apply to NTSB reports in aviation as well. See law firm write-ups here and here, for instance.

My point #1:

NTSB and other government reports about transport accidents in various modes may or may not be admissible in court as evidence. Or, stated differently, they might be admissible for one purpose (such as impeaching the credibility of a witness) – but not for a different purpose (such as to prove a factual point on the basis of which liability will be imposed – or excused).

There is more nuance on this point than a single simple generalization can accurately express.

My point #2:

What this instance of an NTSB report demonstrates:

If the NTSB is answering the “how-did-this-happen?” question by reference to the “safety management system” connected to the vessel (or aircraft, or perhaps the truck, etc.) or to the “safety oversight” by the employer of the contract river pilot over that pilot (read: “established company procedures for operations”), then one must ask if, how and when the courts might follow the NTSB’s lead in connecting such conclusions about causation to their determination of legal liability.

As to the “safety management system” under which the vessel involved here (or an aircraft or truck in another situation) must operate, the NTSB report essentially states that adherence to SMS is causative of good outcomes, and that non-compliance is causative of negative outcomes. To the (large) extent that liability in tort is a function of causation, the NTSB through conclusions like those it renders here declares that SMS or lack of it is part and parcel of such causation analysis. Put another way, the SMS failure here was a contributing probable cause factor to the accident itself.

Similarly, the “safety oversight” failure reference to the company that employed the erring contract pilot here means that the NTSB ascribes causative significance to what the company’s supervisory function over what its contract pilot did at the helm the night of the allision. Through what the law calls respondeat superior, the law ascribes responsibility not just to the contract pilot who made the mistake but to the company that vetted, perhaps trained, and certainly had supervision responsibility for that contract pilot.

Practical Take-Away:

In the coming years it will increasingly be harder for an operating company like an airline or ship carrier to simply “blame-the-pilot” – the NTSB and increasingly the courts will understand that safe operation is not solely a function of the individual who is physically at the controls.

SMS in particular, and safety procedures in general, should be the focus of any organization that operates transportation equipment.

Why? Because the legal significance of respondeat superior leads to the practical significance of ascribing individual conduct to what the organization did or failed to do by way of selection of that individual, training, or supervision: The company that complies or does not with SMS, or that adequately supervises or does not supervise its pilots and other key personnel – is more likely than the individual contract pilot or other functionary to have a balance sheet with which to pay money judgments in court.

EVIDENCE / Two court cases rule that U.S. Coast Guard Marine Casualty Investigation Reports are inadmissible in legal proceedings under federal statute, 46 U.S. Code § 6308.

Government agencies like the U.S. Coast Guard and the National Transportation Safety Board conduct investigations of accidents and issue reports based on those investigations. Note the legal constraints on admissibility of such reports in evidence in a court case.

See write-up from several months ago by Alan Weigel of Blank Rome LLP “United States: Using Accident Reports in Casualty Litigation” (“Mainbrace” at Page 6).

Diamond Offshore Co. v. Survival Systems, International, Inc., 2013 WL 371648 (U.S. District Court for the Southern District of Texas, January 29, 2013). Free copy available here.

American Steamship Co. v. Hallett Dock Co, 2013 WL 308907 (U.S. District Court for the District of Minnesota, January 25, 2013). Free copy available here.