CARDOZO
LAW REVIEW
VOLUME19
THE PENNSYLVANIA RULE:
MURKY WATERS REVISITED
Michael Ben-Jacob
Reprint
Copyright © 1998 by
Yeshiva University
All rights reserved
MAY1998 NUMBERS
NOTES
THE PENNSYLVANIA RULE: MURKY WATERS
REVISITED
INTRODUCTION
For over 120 years prior to United States v. Reliable Transfer
Co. ,1 American maritime courts were obliged to apply the rule of
divided damages upon the finding of mutual fault by vessels in collision.
2 Numerous presumptions were developed that worked in
conjunction with the doctrine of divided damages.3 The presumption
known as the Pennsylvania rule was established by the United
States Supreme Court in The Pennsylvania.4 The Pennsylvania
rule interacted with the rule of divided damages by shifting the
burden of proof as to causation to a vessel shown to be in violation
of a statute intended to prevent collisions.5 Hence, a vessel that
committed a minor infraction of a navigational rule often was
forced to divide damages equally with a vessel far more culpable.6
This inequitable result, coupled with a variety of historical
and logical factors, as well as the Supreme Court’s abandonment
of the divided damages rule in Reliable Transfer, has led some
commentators to argue that the Pennsylvania rule should be aban-
1 421 U.S. 397 (1975) (abandoning the mutual fault equal division of damages rule in
favor of a proportionate fault system).
2 See Jonathan W. Sager, Apportioning Maritime Collision Damages: Applying the
Rule of Reliable Transfer, 34 WASH. & LEE L. REV. 1237 (1977). Under this doctrine,
established by the Supreme Court in The Schooner Catharine, 58 U.S. (17 How.) 170
(1854), a court would aggregate the loss or damage to both vessels and divide them
equally. See Sager, supra, at 1237 nn.1, 3; see also JOHN WHEELER GRIFFIN, THE
AMERICANL AWO F COLLISION5 58-62 (1949). It should be noted here that the convention
in maritime law is to refer to cases by the name of the vessel involved. See, e.g., Warren
B. Daly, The Pennsylvania Rule: Charting a New Course for an Ancient Mariner, 54
B.U. L. REV. 78, 81 (1974). This convention is adhered to throughout this Note.
3 See Richard J. Nikas, Skimming the Surface: A Primer on the Law of Collision, 9
U.S.F. MAR. L.J. 225,232 (1996).
4 86 U.S. (19 Wall.) 125 (1873).
s See infra note 57 and accompanying text.
6 See William L. Peck, The Pennsylvania Rule Since Reliable Transfer, 15 J. MAR. L.
& COM. 95, 96 (1984). The Court has also noted that the inequities of the rule of divided
damages was aggravated when applied in conjunction with the Pennsylvania rule. See Reliable
Transfer, 421 U.S. at 405-06.
1779
1780 CARDOZO IA W REVIEW [Vol. 19:1779
doned.
7
In light of the fact that safety at sea is of paramount impor~
ance,
8
and t~e ar~umen~s in fa~or of abandoning the Pennsylvam~
rule a~e either mapphc~b_le m a proportionate fault regime
or fall to ~ulfill the goal ~f maritime safety,9 this Note argues that a
~resumption as to causation ought to be retained in maritime collision
cases where a statutory violation has been shown.
Part I of this Note outlines the historical context in which the
Pennsylvania rule was enunciated and provides an examination of
h?w the rule has been defined and when the rule applies. Part II
d1sc~~ses oth~r. presumptions and rules for apportioning fault in
maritime colhs~on cases and how these work in conjunction with
the P~nnsylvama rule. Statutes to which the rule has been applied
~nd c1rcumstances in which the rule has been applied are reviewed
m Part III. ~he ev_olution of the burden needed to rebut the rule,
~s well as a_d 1s~uss_1oonf _argumentsf or and against the rule’s conti~
ued application 1~ maritime law is presented in Part IV. Finally,
this Note proposes m ~art V that the Pennsylvania rule is still a viable
mea~s of enforcmg adherence to maritime safety statutes.
But, over !ts 12?-y~a~ history, the rule has been skewed due to the
lack o~ umfo:m1ty m its interpretation and application. To address
these mcons1stencies, it is necessary for the Supreme Court to recast
the rule and lessen the burden a party needs to rebut the rule.
I.
HISTORICAL BACKGROUND, DEFINITION, AND APPLICATION
OFTHERULE
A. Historical Background
The concept that liability for maritime collisions is based upon
f~ult dates ?ack as far a~ _The Digest of Justinian (533 C.E.).10 Over
time, ~ variety of maritime codes were compiled including the
“Rhodian Sea L~w” (600-800 C.E.), the Code of Oleron (c. 1150
C.E.), the Constitutum Usus of Pisa (c. 1160 C.E.), the Consolato
del Mare of Barcelona (c. 1340 C.E.), and the codes of Wisb
(150? C.E.), and Louis ~IV (~6~1 C.E.).11 Although some of th~
medieval codes dealt with colhs1ons in a cursory manner, none of
7 These arguments are addressed infra Part IV.
8 See mfra text accompanying note 302.
9 See infra Part IV.B. 10
See David R. Owen, Th~ Ori~ins and Development of Marine Collision Law, 51
TuL. L. R~v. 759, 760 {1977) {d1scussmg The Digest of Justinian). 11 See id. at 760-64.
1998] THE PENNSYLVANIA RULE 1781
them contained extensive rules for the prevention of collisions.12 It
was not until the late eighteenth and early ninete~~th cent~~ies
that England began to develop laws concerning maritime colhs1on
in any substantial manner. 13 .
In the United States, the Supreme Court entered mto the area
of maritime collision law slowly, and did not decide a collision case
until 1840.14 Although the volume of collision cases h~a~d by !he
Court increased, the majority of nineteenth century opm1ons s1?1-
ply confirmed the English precedents. 15 Despite t?ese t~ntatI~e
beginnings in the United States, The Penns1lvama, ?~c1d~d _m
1873, did not create a new principle in American mant1me Junsprudence.
16 In Waring v. Clarke,17 the Supreme Court presaged the
Pennsylvania rule when it stated that a ve_ss~l “by whom the law
has been disregarded [must] show that the mJury done was not the
12 See id. at 760-61. For example, the Rhodian Sea-Law contains the oldest known
statement of marine collision law. It states:
If a ship in sail runs against another ship which is lying at anchor or h?s
slackened sail, and it is day, all the collision and the damage regar?s the cap~am
and those who are on board. Moreover, let the cargo too come mto contribution.
If this happens at night, let the man who slackened sail light a fire. If he
has no fire Jet him shout. If he neglects to do this and a disaster takes place, he
has himself to thank for it, if the evidence goes to this. If the sailsman was negligent
and the watchman dozed off, the man who was sailing perished as if he ran
on shallows and let him keep harmless him whom he strikes.
Id. (quoting WALTERA SHBURNERT, HE RHODIANS E’4:-LAW1 10 (1909)). But generally,
the Digest governed collision cases based upon the ordma~ rules of fault, not rules specific
to maritime collision. See id. at 760-64. Moreover, this statement as _well as th?~e of
the medieval codes, speak to the apportionment of fault not to the prevention of colhs10ns.
See Garry Pitts, Admiralty’s Pennsylvania Rule, 24 S. TEX. L.J. 541, 542-_43{ 1983)._.
13 See Owen, supra note 10, at 767-68. In 1798, the ~egular reportmg of dec1s1ons by
the High Court of Admiralty commenced, and in 1815, m The Woodrop-S1m~, 165 Eng.
Rep. 1422 (L.R. Adm. & Eccl. 1815), the English court set forth the four possible res~l~tions
to collision cases: (1) inevitable accident-no recovery; (2) mutual fault-equal d1v1-
sion of damages; (3) sole fault of damaged vessel-no_recove~y; ~~d (4) sole_ fault of other
vessel-full recovery. This scheme provided an outlme for !ud1c1al _analys~s of the l~rge
number of maritime collisions cases that had erupted followmg the mdustnal revolut1on,
and the coinciding advances in marine technology and trade. See Owen, supra note 10, at
767-68. 11· ·
14 See Peters v. Warren Ins. Co., 39 U.S. (14 Pet.) 99 (1840) (holding that co ISIOn on
German waters was an unavoidable accident where action was brought in United States
‘)n hull policy for general average contribution); see ~/so ~we~ _supra note l_0, at_ 777.
1s See Owen, supra note 10, at 777. For a detailed d1scuss1on of th~ h1stoncal development
of maritime and admiralty law in both England and the l!mt~d States, see 1
BENEDICT ON ADMIRALTY§§ 1-100 (7th ed. rev. 1996). For an exammatton ?f the development
of maritime and admiralty law in colonial America generally, and m Maryland
specifically, see DAVID R. OWEN & MICHAEL C. TOLLEY, COURTS OF ADMIRALTY IN
COLONIALA MERICA:T HE MARYLANDE XPERIENCE1, 634-1776 (1995).
16 See Daly, supra note 2, at 81.
11 46 U.S. (5 How.) 441 (1847).
1782 CARDOZO LAW REVIEW [Vol. 19: 1779
consequence of it. “18 While this burden falls short of the burden
that was ultimately to be imposed in The Pennsylvania, the Court
took a definitive step in the direction of raising the standard to
which a violator would be held in the 1868 case The Grace Girdler.
19
There, the Court stated: “[I]t is incumbent on [the vessel in
violation] to show that such fault had in no degree the relation of
cause and effect to the accident.” 20 Similarly, in the 1872 case The
Ariadne,21 the Supreme Court used this locution: “Every doubt as
to the performance of the duty, and the effect of non-performance,
should be resolved against the vessel sought to be inculpated until
she vindicates herself by testimony conclusive to the contrary.” 22
The facts of The Pennsylvania were these: In 1869, the British
sailing ship the Mary Troop, a bark, was sailing through a dense
fog 200 miles off Sandy Hook, New Jersey, bound from Scotland
to New York.23 The fog limited visibility to fifty feet.24 The Mary
Troop was moving at about one mile per hour. 25 Under these circumstances,
the then-applicable statute governing fog signals required
that sailing ships underway use a foghorn.26 The Mary
Troop was equipped with a bell and a foghorn, but instead of using
the foghorn, the lanyard rang the bell from fifteen to twenty times
a minute.
27
Suddenly, the crew heard the whistle of a steamer
whose bow then appeared a short distance off. 28
The steamer proved to be The Pennsylvania, a vessel weighing
2388 tons, measuring 341 feet in length, and traveling at seven
knots per hour.
29
Unable to avoid contact, The Pennsylvania
struck the Mary Troop on her port side, cutting the smaller ship in
half, and resulting in the death of six members of her crew.30 The
owners of the Mary Troop libeled The Pennsylvania in the District
18 Id. at 465.
19 74 U.S. (7 Wall.) 196 (1868); see also GRIFFIN, supra note 2, at 472.
(182407 )T).h e Grace Girdler, 74 U.S. at 203 (citing Waring v. Clark, 46 U.S. (5 How.) 441
21 80 U.S. (13 Wall.) 475, 479 (1872); see also Pitts, supra note 12, at 544.
22 80 U.S. at 479 (emphasis added).
23 The Pennsylania, 86 U.S. (19 Wall.) 125, 125-26 (1873). 24 See id. at 126.
25 See id. at 127.
2
6 See id. at 126 (citing Act of Apr. 29, 1864, ch. 69, 13 Stat. 58, 60 (repealed 1926)).
The Act required that a steamship under way use a steam whistle, that a sailing ship under
way use a foghorn, and that a steamship or sailing ship not under way use a bell.
21 See id. at 127.
28 See id.
29 See id.
30 See Nicholas J. Healy & Joseph C. Sweeney, Establishing Fault in Collision Cases, 23
J. MAR. L. & COM. 337, 338 (1992).
1998] THE PENNSYLVANIA RULE 1783
D. • t f New y ork and in England. 31
Cour~~r l~~ri::s~~:t h~:~~h~ steamer to ~e li_able fotr
33
thTeh :h~~~
• • ff ed by the cucmt cour .
loss,32 and this ruhn_g was a -~:~n delivered by Justice Strong, that
phr emde Caoguerst wheerled ,t om bea ndiv?Ji ?eddi between the two vessels s•i nce ·b o· th
t e am b t f ult 34 In the course of his opmion
Jvuesstsiecles Swteroren gs heonwunnc i~ao te de_ \wa: wa~ to. become known as the Pennl
nia rule in the following manner. . . . .
sy va But wh en, as m• th1·sc ase , a ship at the time of a colhs1to n isl lmi
actual violation of a statutory rule intended to rreve~a~~h~
• • • ore than a reasonable presump wn
~:~:• ~•0:, ‘;;;e ~ole cause, was at least a contributo
1
‘;;e c:~e [~
the disaster In such a case the burden rests upo?
violation to] show[] not m~~li i!h;:
0
t:~{a~:t~~~t :U~\~v~ ~::rid!:~:~:~e~ a:s~~t: a r:le i:
5
necessary to enforce obedience
to the mandate of the statute. h t
Since 1874, The Pennsylvania has become one oft e mos
31 • h bark violated the law by sounding the bell in-
The English courts admitted
th
at t ~ h t r liable for the whole loss, given its
setxecaeds soivf eth rea tefo ogfh osprne,e db.u t nonetheless fo~n ~ e8 ~~ ~eat 128 (c iting The Pennsylvania, 23 See The Pennsy vama, . .
L.T.R. 55 (P.C. 1870)). . ED Ny 1870) (No. 10,947), aff d, 19 F. Cas.
32 See The Pennsylvama, 19 F. Cas. 180 (d ·R • 0 • ~n has brought to light a rather inter-
184 (C.C.E.D.N.Y. 1872) (No. 10,9~0). Davi Ad;iralty Practice in the 19th Century-A
esting historical footnote. _See ~avid R. Owen,Professor Tetley’s Article, 13 J. MAR. L. &
Little Family Party: An H1storzc~l For;ote :ct & Benedict Ne’w York City, represented
COM. 147, 147-48 (1982). The firm o {h:e artners were E~astus C. Benedict, who wrote
the owners of the Mary T~oop. See
11· . P1850 and his nephew Robert Benedict. See
the first edition of Benedict on Admira~~y mb , the first United States District Judge
id. Robert’s brot~er: Charles L. Be;~ ~~65 e::~~obert acted as court reporter. See id.
for the Eas•t •e rnI D1J stdngc t oCf hNaerlwes Y Lo r Bmen e d”1 c’td ec1’d e d the case in favor of his. unc. le andt
Not surpnsm~ y, u e • • t that neither the district court nor the c1rcmt cour
brother. See id. Owen ~lso lom~. o:the case later became famous. See id. at 148.
mentioned the presumpt1~n or w ic 84 CC E D Ny 1872) (No. 10,950).
33 See The Pennsylvama, 19 F. Cas. 1 _( • •b • 11·i n~t~ad of a fog horn as required by
stat3ut4eT hane dM Tahrey PTernonospy lwvaansi _aa wt faaus lat/ r au rt~~~ ~a:eling at an “undue rate of speed.” The
Pennsylvania, 86 U.S. at ~34.
35
• h b ted that the Supreme Court relied, inter
35 Id. at 136 (emphasis add_ed). It a~ e;~ n; the British Merchant Shipping Act of
alia, upon an erroneous reading of set10~ R l -An Anachronism? The Pennsylvania
1862. See William Tetley, The Penni ~~:a 12~ el31-32 (1982). Nonetheless, by the time
Judgment an Error?, 13 !·_MAR. L. . E • land was the same as that pronounced by the
of The Pennsylvania dec1s10n the law m n~DMIRALTY LAW OF THE SUPREME COURT
Supreme Court. See HERBERT R. ~A~R, ‘d ed a “characteristic feature” unique to
321 n.3 (3d ed: ~979~. _Today the rus:e1~~~::~~~mpson, State Courts and State_ Law.: A
American mant1m~ Junsprn
d
ence. LJ 223 228 n.25 (1996). For further d1scuss!on
Nofe wth eF oarrcgeu imn eAndtsm irraailsteyd? , b8y UT.eStl.eFy. ,M sAeeR .g en• e•r a 11y’ infra Part IV and text accompanymg
notes 265-70.
1784 CARDOZO IA W REVIEW [Vol. 19: 1779
frequently cited maritime decisions of the Supreme Court.36 It has
been suggested that the principle restated in The Pennsylvania
“was undoubtedly a judicial response to the grave risks encountered
by seamen, shipowners and cargo owners alike from collisions
at sea. “37
B. Defining and Applying the Rule
Despite the rule’s longevity and frequent citation as precedent,
how the rule was intended to function is somewhat unclear.
Generally, courts have limited their comments as to the functioning
of the rule to statements such as “[t]he Rule creates a shift in
the burden of proof as to causation,” 38 but it is not a “rule of liability.”
39 Others have understood that the rule does not establish
fault; rather, it shifts the burdens of persuasion on the issue of causation
to the party who violated a legislative mandate. 40
Some courts have described the rule as a “rule of evidence”
which does not affect the substantive rights of the parties, but
merely shifts the burden of proof.41 Similarly, Griffin in The
American Law of Collision states that under the rule the guilty
vessel “has the burden of going forward with such evidence” as
would show that the statutory fault was not a contributing fault,
but the violator does not incur the burden of persuasion. 42 Based
upon this view, some practitioners have argued that the promulgation
of the Federal Rules of Evidence, and specifically Rule 301,
36S eeR ichard H. Brown, Jr., GeneraPlr inciploefs L iability51, TUL. L. REV. 820,828
(1977). Garry Pitts states that TheP ennsylvanisi ain fact the most frequently cited admiralty
case decided by the Supreme Court, and has been cited in over 500 decisions since
1874. SeeP itts, supran ote 12, at 541 n.2.
37D aly, supran ote 2, at 81.
38 Garner v. Cities Servs. Tankers Corp., 456 F.2d 476, 480 (5th Cir. 1972) (quoting
Green v. Crow, 243 F.2d 401, 403 (5th Cir. 1957)). The problem with statements such as
these is that the term “burden of proof” encompasses both the burden of production and
the burden of persuasion. See2 MCCORMICKO N EVIDENCE4 25 (John William Strong
ed., 4th ed. 1992). The Court’s language in TheP ennsylvanisi aun clear as to whether one
or both burdens were intended. Sees uprate xt accompanying note 35.
39E .g.G, reen2,4 3 F.2d at 403.
40 See, e.g., Orange Beach Water, Sewer & Fire Protection Auth. v. M/V Alva, 680
F.2d 1374, 1381 (11th Cir. 1982); seea lso2 THOMASJ . SCHOENBAUMA, DMIRALTY&
MARITIME LAW§ 14-3, at 265 (2d ed. 1994).
41 See,e .g.T, he Aakre, 122 F.2d 469,474 (2d Cir. 1941) (citing The Martello, 153 U.S.
64, 74 (1894), and Lie v. San Francisco & P.S.S. Co., 243 U.S. 291, 298 (1917)); see also
Robert J. Zapf, TheG rowtho f theP ennsylvania RuleA: Studyo f Causatioin Maritime
Law, 7 J. MAR. L. & COM. 521, 525-29 (1976).
42G RIFFIN,s upran ote 2, at 41; cf GRANTG ILMORE& CHARLESB LACK,T HE LAW
OF ADMIRALTY 494 (2d ed. 1975).
1785
1998]
THE PENNSYLVANIA RULE
eral burdens of persuasion,43 brings the
which sets ~orth t?e gen . t with the federal statute and, the_rePennsylvama
rule mt~~on~ic But courts addressing this question
fore, has been overn en. he rule conflicts with or has been
have rejected the argument tha: t f Evidence 45 In Self v. Great
overridden by the Feder~l ~ut~! ~nited Stat~s Court of Appeals
Lakes Dredge & D<:ck~ o. 't d that "the adoption of the Federal for the Eleventh O_rcmt sta eb t' burdens and presumptions Rules di'd i:iot m~ d i fy th.e su stan ive . 1 1 ,,47 This statement necessitates long established m admira ty la~. "ther one of substantive law or . t' • w the ru e 1s ei that, m the cour s vie ' l f vidence Commentators have a "presumption," but not a ru e o e . .48 in fact categorized t~e rf e ~ ~ pr~s~~J;:o~~rome Frank took the In his dissent _m,.T e a ;~~edure, not of substantive law."5o view that th~ rule_ is . one of PUnited States Court of Appeals for In accord ~1th _this view, the 11 that "[t]he law as to the burden the Fifth Circuit stated genera y d the substantive law of a case of proof is a matter of su?stance, a~ ,,51 But the Pennsylvania rule does not change as ~he tnal proc~_e s. a rule of reasoning by the "announces a P!acti~al P!esumfp lO~et•y•s tatute is shown) the courts courts ... [ that if a v10lat1on o a sa . • G I Cvil Actions and 43F ederal Rule o f E v1'd ence 301, titled "Presumptions m enera I Proceedings," state~: . not otherwise provided for by Act of ~o~- In all civil actions and proceedings. . on the party against whom 1t is 1 presumption imposes h gress or by these ru es, a . d with evidence to rebut or meet t e predirected the burden of g~mg forwar art the burden of proof in the sense of the sumption, but does _not sh1f: to such ? ~roughout the trial upon the party on risk of nonpersuas1on, which remains whom it was originally cast. FED. R. EVID. 301. D d & Dock Co. 832 F.2d 1540, 1555 n.14 (11th Cir. 44 Seee, .g.S, elf v. Gre_atL akes re ge , . l987) (citing plaintiff's bnef). 1 986 F 2d 329 331 (9th Cir. 1993) (recogmz- 45S ee,e .g.H, ood v. Knappton Corp., ni~her ar~as of f~deral law" and therefore preing "that admiralty law stands apart from h the Pennsylvanruilae , are not affected by sumptions that shift the burden of proof, sue as the Federal Rules of Evidence). 46 832 F.2d 1540 (11th Cir. 1987)- . p . h c 686 F.2d 1129, 1133 (5th Cir. 47 Id. at 1555 n.14; see also Jones v. River ans es o., 1982). 338· 2 SCHOENBAUMs,u pran ote 40, § 14-3, 48S eeH ealy & Sweeney' supran rl~~i~ a~ the 'Pennsylvanruilae is a rule that create~ a at 264; Sager, suprano te 2, at 1242. ~ statuto resumption, contrary to which presumption, it "shoul~ not,~e con~~~~t1~3 \.2d 200: io4 n.4 (5th Cir. 1946); see also no proofs may be received. T~ k lis 'ApportioniFnga ulitn CollisioCna ses1, :tJ,S.F. John F. Meadows & Geor~e J.h tatrhuP ~nnsylvarnuilae is a nonstatutory presumption). MAR. L.J. 1, 24 (1989) (notmg t a e 49 122 F.2d 469 (2d Cir. 1941) •. 50 Id at 476 (Frank, J., dissentmg). . 51T heV ictor1,5 3 F.2d at 204 (footnote omitted). 1786 CARDOZO LAW REVIEW [Vol. 19:1779 will presume that such violation was the cause of the collision. "52 In Ishizaki Kisen Co. v. United States,53 the United States Court of Appeals for the Ninth Circuit rejected the application of the rule to a collision in foreign waters between a United States vessel and Japanese vessel. The court stated further that the rule should not be, considered a part of the procedural law of the forum. Were the Rule designed merely to shift to the violator of the statutory rule the burden of going forward with the evidence its characterization as "procedural" would be proper. The Rule, however, does much more. Its effect has been described as follows: "The shift in burden resulting from the Pennsylvania Rule is twofold. Not only must the violator meet the burden of producing evidence to counter the presumption of causation, but he must also persuade the trier of fact that his explanation should be adopted" .... We conclude, therefore, that the Pennsylvania Rule is more akin to substantive law than to rules of procedure. 54 In light of the foregoing evidence, some commentators have concluded that the rule "is not a procedural device, but a rule of substantive law; its application vel non should therefore generally depend on the law governing the other substantive aspects of the collision."55 Another commentator, however, has concluded that the United States Court of Appeals for the Second Circuit's view that the rule is a procedural device that "is not an absolute presumption," but "merely shifts the burden of proof," is the better considered view.56 Despite the ambiguity as to whether the rule was meant to function as a rule of evidence, procedure, substantive law, or merely as a presumption, there are certain points upon which courts and commentators generally agree. The rule is limited to violations of statutes intended to prevent collisions and the injury that actually occurrecf.57 Also, the statute involved must delineate 52 Id. 53 510 F.2d 875 (9th Cir. 1975). 54 Id. at 880-81 (citations and footnotes omitted) (quoting Daly, supra note 2, at 80). 55 Healy & Sweeney, supra note 30, at 347. 56 E.g., Pitts, supra note 12, at 584. 57 See, e.g., United States v. Nassau Marine Corp., 778 F.2d 1111, 1116 (5th Cir. 1985) {finding that failure to remove wreck pursuant to wreck statute caused second vessel to strike wreckage and sink); see also, e.g., Folkstone Maritime, Ltd. v. CSX Corp., 64 F.3d 1037 (7th Cir. 1995) {finding that failure of bridge operator to adhere to Army Corps of 1998) THE PENNSYLVANIA RULE 1787 d f d duty 58 Generally' it has been exa precise and clearly e me th ~le the following criteria must plained that in order to apply d e r 'of the evidence of violation be met: (1) proof b~ ~_rreri; :i~~:s a mandatory duty; (2) the of a statute or re_gu a ion . marine safety or navigation; and statute o! ~egulat1on m;st m~o~ve of a nature that the statute or (3) the m3ury suffere mus e 59 regulation was intended to prevent. o MARITIME PRESUMPTIONS AND RULES FOR APPORTIONING II. FAULT In order ~~ help courts better detet:~~~ea::~c:i:sa~~v:~~:~ fault in a c_olhs10~n,.u ~ero~s t[~!u:ei ermining and apportioning developed m mantlm~ aw o_ ssel strikes an anchored vessel of fault.60 Generally' if a movmg. ve vessel is presumed to be at or a stationary ob~ec_t,t he mov1~fon a ainst a drifting vessel that fault.6i There is a s1m1lar presump ~b· ect 62 Griffin lists seven strikes an anchored vessel or sta~onarysea3 to help determine fault other presumptions that courts ave u Engineers regulation caused collision). 460 F 2d 89 98-99 (2d Cir. 1972), an action was 58 In In re Marine Sulphur Queen, . • I , t It was held that ABS rules for . . It t from a ship ost a sea. . f brought to hmit damages resu an_ . d 'udgment in application and there ore spacing of ship bulkheads ca_lfl or mterpr~~~~~ t~~ r~le may apply. Similarly, in E.A. Ando not provide a _clearly defined duty to 2d 574, 580-81 (4th Cir. 1961), a motor boat was thony v. International Paper Co., 289 Fh Id that the rule does not apply because the recapsized by defendant's swells. It was e I mandated given the facts of the case. In quirement of a proper lo_okout _was not_c~~~Jited States, 604 F. Supp. 1297, 1305 (D. Or. Olympia Sauna Compania Nav1era, S.A d . ositioning of buoys that marked reef 1984), the district court held that Coast G:ar ~:: rule did not apply. See also Zapf, suonly violated statutes of a general nature, ence, pra note 41, at 531. . 778 F 2d at 1116-17; Daly, supra note 2, at 110; Sager, su- 59 See Nassau Marine Corp., • 40 § 12-3 at 726. pra note 2, at 1242-44;2 SCHOEN_BA~:s'u1:1: :t:~t: The odly statutory presumption in 60 These presumptions are 1ud1c1a c • eated by the Standby Act, ch. 875, § . • 11· • ·urisprudence was er . d United States manume co 1s10nJ ) T da although there is a statutory duty impose 1 26 Stat. 425 (1890) (repealed 1983 • / · y,_n order to assist there is no statutory preupon a captain to "st~nd by" afte~ a co ISl~:i~ fails to do so. See 46 U.S.C. §§ 2303-23~ sumption created against a vessel if the cap t 48 at 24 (noting that the Pennsylvania (1994); see also Meadows & M~rkuli1~:u1::e:~1; Nik.as, supra note 3. . rule is a nonstatutory presumpt10~16 19f93 (1895) (establishing the presumption known 61 See The Oregon, 158 U.S. ' M . . Ltd v CSX Corp. 64 F.3d 1037 (7th as "the Oregon rule"); see ~lso Folkstonl ritu~t· V Tu~ "Cissi Rein;uer," 933 F. Supp. Cir. 1995) (vessel strikes bnd~e); Gr~a~. m. ~:~io~~; marina and houseboat). This pre- 1205 1217 (S.D.N.Y. 1996) (ice pus e mto s I S e g City of Boston v. S.S. Texaco sumption generally is known as the _Oregon rue. ee, •• , Texas, 773 F.2d 13~6.' 1397-98 (~t(;1~;i18fi64 (1865). Accordingly, this presumption has 62S ee The Lou1S1ana7, 0 U. • • H d v Knappton Corp., 986 F.2d 329, the Louisiana rule. See, e.g., oo • ) ~~~(;t~ ~;~~9;s) (log raft negligently set adrift collides with two vessels • 1788 CARDOZO LAW REVIEW [Vol. 19: 1779 in maritime collisions.63 Griffin further states that "[s]uch 'presumptions' are, of course, not rules of law or even of evidence. They merely express inference of fact, based on experience and probabilities . . . . They do not alter the ultimate burden of proof. "64 In dealing with the numerous presumptions and rules in maritime law, courts have noted that "the same set of facts may give rise to two conflicting presumptions, the weaker of which must give way."65 So, when the presumption created by The Pennsylvania has come into conflict with the presumption created by The Oregon,66 the Pennsylvania rule has taken precedence. 67 Other presumptions and rules for apportioning fault that are worth menJ tioning in the context of the Pennsylvania rule are the doctrines of "last clear chance," 68 "inscrutable fault," and "inevitable accident," 69 as well as the condition/cause distinction,70 the majorminor fault rule,71 and error in extremis.72 A. Last Clear Chance The last clear chance rule exonerates a vessel guilty of a prior fault if the other vessel, being aware of the dangerous condition, had the opportunity to avoid the collision but failed to do so.73 But it has been questioned if this doctrine truly exists in maritime law.74 In the wake of Reliable Transfer, however, it is clear that if the rule ever existed it has been eliminated.75 Therefore, any effect the doctrine of last clear chance may have had on the application of 63 See GRIFFIN, supra note 2, at 39-43. 64 Id. at 43. 65 The Victor, 153 F.2d 200,204 (5th Cir. 1946). 66 See id. The stationary vessel, which would normally be exonerated under the Oregon rule, failed to adhere to a maritime safety statute intended to prevent collisions. 67 See id. 68 See infra Part II.A. 69 See infra Part 11.B. 70 See infra Part 11.C. 71 See infra Part 11.D. 72 See infra Part 11.E. 73 See, e.g., Matton Oil Transfer Corp. v. The Mff Greene, 129 F.2d 618, 620 (2d Cir. 1942). 74 See Board of Comm'rs v. M/V Agelos Michael, 390 F. Supp. 1012, 1016 (E.D. La. 1974); see also GILMORE & BLACK, supra note 42, at 494 n.47; Brown, supra note 36, at 836-37. 75 See William Tetley, Division of Collision Damages: Common Law, Civil Law, Maritime Law, and Conflicts of Law, 16 TuL. MAR. L.J. 263, 271-72 (1992); see also Jack C. Rinard, Collision, in THE FLORIDA BAR CONTINUINGL EGAL EDUCATION,M ARITIME LAW AND PRACTICE 235,244 (1980); David R. Owen & M. Hamilton Whitman, Jr., Fifteen Years Under Reliable Transfer: 1975-1990 Developments in American Maritime Law in Light of the Rule of Comparative Fault, 22 J. MAR. L. & COM. 445,458 (1991). THE PENNSYLVANIA RULE 1789 1998] the Pennsylvania rule no longer needs to be addressed. B. Inscrutable Fault/Inevitable Acci~ent . 76 the doctrine of mscrutable fault Established m The Jumna, Where "a collision • h f llowing manner: has been restated m t e o lt but the court is unable to locate clearly resulted from human fau f es " each side will bear its own it or allocate the fault among par ~ ' e 1s An analogous doctrine loss.n But these cases are e~treme y 1~:S is that of inevitable acciin which each party bears its own of an act of God through dent.19 A collision that occ~rs as a resu~! defined as an "i~evitable no fault or ne~ligence of e_ither partybl~ for a collision over which accident."so Smee no one is resp~n;; the loss rests where it falls.s1 human ~kill :d-~a~ ~::: ~ie c~:ns~lvania rule cannot properly It is su mi . e . . of these two doctrines. The rule come into con_fhct: -vith ei~ertrine of inevitable accident because does not conflict with t e o~ ble to locate a fault that can be in such an instance the cou~t is untt a arty is shown to be in statusaid to have cause_d the collision. . l~ment the Pennsylvania rule, tory violation, as is necess~ry t~ !~~ causal fault and the collision the court is not "unable to oca e . bl f 'lt 'd h been one of mscruta e au • cannot be sai to ave_ h ld true of the doctrine of inevitable The same r~~sonmg o s e ro erl characterized as one of accident. A c_olhsi~n ca? only b P. phoJn to be at fault; this preinevitable accident if neither pa~:ti t s Hence the Pennsylvania sumably includes a statutory vio a ~nt with th~ doctrine of inevirule cannot properly come mto con ic table accident. d & Markulis supra note 48, at 20. But 76 149 F. 171, 173 (2d Cir. 1906&s;1e; ~;an o;;llision Litiga;ion, 9 J. MAR. L. & COM. see Steven B. Chameides, 1nscruta e au I . U ited States courts as far back as the 363, 365 (1978) (dating inscrutable fault cases m n mid-nineteenth century). 2d 66 69 (5th Cir. 1964). 11 Atkins v. Lorentzen, 328 F. • 78 See GILMORE & ~LACK, supra n(;~!ii')a~;:~1~~~)- 79 See The Grace Girdler, 74 U.S. • so Meadows & Markulis, supra note 48, at 21. 81 See Rinard, supra note 75, at 243. s2 Atkins, 328 F.2d at 69. 1790 CARDOZO LAW REVIEW [Vol. 19: 1779 into play.83 This tactic has been employed to alleviate the harshness of the Pennsylvania rule when applied in conjunction with the rule of divided damages.84 An often cited example of this distinction is the United States Court of Appeals for the Fourth Circuit case of Tempest v. United States.85 There, the Devil Dog's steering mechanism failed, and instead of stopping to make repairs, the vessel attempted to return upstream. The Tempest II, navigating downstream and nearing a bridge whose pilings bisected the river, navigated to her starboard into an uncharted passage.86 Nonetheless, the two vessels collided under the bridge.87 Although the first vessel was clearly at fault for attempting to navigate with a faulty steering mechanism, it was argued that the Tempest II had violated the Narrow Channel Rule88 and was therefore subject to the Pennsylvania rule.89 The Fourth Circuit held that since the position of the Tempest II did not mislead the Devil Dog in any way, and there was no showing that the Devil Dog relied upon the Tempest /I's compliance with the Narrow Channel Rule, the statutory fault of the Tempest II was "no more than a passive condition in the sense that otherwise she would not have been where she was and that her fault made no 83 See The Sagamore, 71 F.2d 958 (2d Cir. 1933); The Steel Inventor, 43 F.2d 958 (2d Cir. 1930); The Morristown, 278 F. 714 (2d Cir. 1922); Long Island R.R. Co. v. Killien, 67 F. 365 (2d Cir. 1895); The Clara, 55F . 1021 (2d Cir. 1893); GRIFFIN,s upran ote 2, at 476 (citing Standard Towing Corp. v. Michigan Atl. Corp., 122 F.2d 325 (2d Cir. 1941)); see also The Gezina, 89 F.2d 300, 304-05 (4th Cir. 1937) (finding excessive length of hawser still attached when preparing to anchor was a condition that could not have contributed to the collision). 84 Cf Tetley, supran ote 35, at 140: To alleviate the harshness of the Pennsylvania Rule, the courts have occasionally overlooked an earlier fault of one vessel where it could be shown that the loss would have occurred regardless of the violation. In these cases the courts have characterized the statutory violation as a "condition" and not a "cause" of the accident. It is presumed that the "harshness" referred to here is the rule's application in conjunction with the doctrine of mutual fault equal division of damages. Sees uprate xt accompanying note 6. For discussion of how this distinction mirrors the "last clear chance" doctrine, see Brown, supran ote 36, at 830; Daly, suprano te 2, at 86. 85 404 F.2d 870 (4th Cir. 1968); seeD aly, supran ote 2, at 85; Sager, supran ote 2, at 1243 n.39; Tetley, suprano te 35, at 140-41. 86 SeeT empes4t0,4 F.2d at 871. 87 See id. 88 33 U.S.C. § 210 (1976) (repealed 1980) provided that a vessel passing through a narrow channel must navigate on the right side of the channel. Here, the former vessel argued that the bridge pilings divided the river into two narrow channels and the TempesIIt was in violation for navigating on the left side of the channel. Today, rules governing passing procedures through narrow channels are set forth in Inland Rule 9, 33 U.S.C. § 2009 (1994) and COLREGS Rule 9, 33 U.S.C. § 1602 (1994). 89S eeT empes4t0, 4 F.2d at 871-72. THE PENNSYLVANIA RULE 1791 1998) other contribution to the collision, the Pennsylva~~ Rule does not . h b 11 or a part of the damages. reqmre that s e ear a . ly argued that cases such as Tempest But it has been persua~~~: face when they misapply the r~le.91 represent the pro~le:: ~~tide The Pennsylvania R~le: Charting a Warr~n B. ~ao/~~nAncient Mariner, has stated that mstead of, New ou:se o to determine whether the violation could applymg (t;e hrule] 'dent courts should first determine whether have cause t e ac~:ed w~s the precise harm that the statute or the har~ that resu t If the statute was designed to regulation sought :odpr:~;nthat occurred the violator is negliprevent the ty~:r°tra:i~ional tort principl~s. The Pennsylvania gent ~er se un . d and proof that the accident would have Rule 1s then tnggere ' . . •u be re uired to exoneroccurred regardless of ~e violatl~~ff:~ent the~ the violation of ate the viola~or.l~f:::bea::;:~ i~voke the Pennsylvania Rule, ~~; ::~t~i~l;ron is not neg~i~ence per se9a2n d hence does not breach any duty owed to the m1ured party. . d . hat in Daly's view the court m Tempest nee Hence, it _seems t ndition/cause distinction because the Narnot have applied the co . t ded to prevent collisions such as row Channel Rule wa_s not men 93 In In re Tu Helen B. Moran94 the one that o~cui:red m t~at cdasttev alidity of lt.eco ndition/cause the Second Circmt quest10ne distinction. The court noted that: . courts have sought to distinguish between the act~ve "ca~:?,Yof the harm and the ~xis~t~ '~:n::::~fe\ou~~~i::u~~~ that cause operated. • • • (l]t 1~ q . · p If the defenbetween active forces and passive s1t~at1ons• • ;e.ates a "condi- ~~:~~:;~:~~~;~•e:~~~:!l!f:.~as much to brmg a ou t has created he will not esthe very risk_:f!ch the "~!~~i~~nd "conditio~" still find occac~ pe respon~1 1 ~ y .th~· decisions; but the distinction is now a~- ~::le:ftf :iettl;ntdhi~e~tryce:pSd~~ ~t~~~;:- i:h:a;o:~Is ::~if !t~;:r:~lio: must re er o . • • f apparent by the defendant have come to rest m a pos1t10n o 90 Id. at 872. 91S eeD aly, suprano te 2, at 87. C 330 F. Supp. 486 (E.D. Pa. 1971), in 92 Id. Daly points to In reT ugM anagemenotr p., support of this analysis. 93S eeD aly, suprano te 2, at 87. 94 560 F.2d 527 (2d Cir. 1977). 1792 CARDOZO LAW REVIEW [Vol. 19: 1779 ~a!ety, and so~~ ne_w force intervenes. But even in such cases iits i·s not the db1 stmct1onb etween "cause" and "co n d'1t· 1 0n, , wh '1 ch , . impor!ant, ut the nature of the risk and the character of th mtervenmg cause.95 e vide I~ l~ht of this analysis_, the condition/cause distinction pro- [ s . u mus grounds for circumventing the effects of the p sy vama rule. enn- {~~~ :~p:~;i:~?;i::1::if~ £1~2:i:?ii:~~·!:~~:;;f~:~ rule and error in extremis.96 , JOr-mmor ault D. Major-Minor Fault doct;i::~~a~itlf o[ New { ?r~t the S~preme Court established the ~~~~:~\t~:/•n~r~un;,~!i~bf~~:fa .~~;i~:f:s: :~ :~:;~c~lya . ' opposmg vessel s mfractlon can be categorized as a ~~~~r ~ne, ~he grossly ne_glige~t vessel will be held solely at fault 98 . e as een much d1scuss1on as to the effects of the m • • m;rof faul~ doctrine on the Pennsylvania rule," but in light of ~;r-: a e _rans1ert hes~ d1scuss1onsa re now moot. l Smee the maJor-minor fault rule mainl • • the harshness of the di • d d d Y existed to alleviate rule h l . v1 e . amages rule, the major-minor fault th b a: no p ~ce m ~ c~n~nbutory negligence scheme.100 In fact e et er considered JUd1crndl ecisions are of the same opinion. i01 ' 95 Id. at 528 n.3. 96 See supra text accompanying notes 60-72 97 144 U.S. 72, 85 (1893). • 98 See id. 99 Generally, the major-minor fault doctrine d • • may have accompanied application of the p s~rve . to lessen meqmtable results that scheme, a vessel guilty of a minor statuto ennsy_ vama rule. Under a divided damages ages even though the other vessel's act·oryf ault rrufghtb e held liable for one half the dam- . f I ns were ar more egre • U d mmor ault doctrine, if one vessel's fault was • • • g10us. n er the majorvessel's fault, the vessel in "major" fault wou~~~1d~rfd ~mor m comparison to the other out regard to the presumption created b Th p e el d h~ble for the total damages withpra note 42, at 494-96· Daly su t \ e ennsy vanza. See GILMORE & BLACK suThat!- The Unlament;d De:nis::j~/:e ~.' ~ !9i3; Dennis A. Goschka, Goodbye td All 54-55 (1976); Meadows & Markulis 1v1 e amages Rule, 8 J. MAR. L. & COM 51 a Bang but a Whimper· Collisions ~upra no~e 4~ at 17-20; George Rutherglen, Not ~ith 67~L. L. REV. 733 (1993); Zapf,'su;,;~::t;{ ai°;~t_;~d th e Rule of The Pennsylvania, See Owen & Whitman, supra note 75 at 456-R' d Brown, supra note 36 at 837-38 (arg . th' h ' J~ar , supra note 75, at 244. But see I . d . . ' umg at t e maJor-mino f It I p ie m certam instances even after Reliabl 'T' -~ ) r au ru e ought to be ap- 101 s T · 'd e , rans,er • (holdingee "thnem maadj oCr-omrpi.n ovr. Sftaeualmt srhuii Ke 1• yoh Maru, 845 F.!d 818, 824 n.4 (9th Cir. 1988) e . . . was expressly disavowed when the Supreme 1998] THE PENNSYLVANIA RULE 1793 E. Error in Extremis Error in extremis was recognized by the Court in Propeller Genessee Chief v. Fitzhugh,100. and only applies when a vessel is faced with a sudden peril or emergency10t3h at did not arise as a result of her own fault.104 Under this doctrine, if a vessel takes a mistaken action in reaction to a dangerous situation negligently created by another vessel, the former vessel will be exonerated. But "no emergency will excuse the absence of all clear thinking; after all, men, charged with responsibilities of command, must not be wholly incapacitated for sound judgment when suddenly thrust into peril. "1o 5 In Green v. Crow,106 the Fifth Circuit dealt with the issue of which takes precedence when the doctrine of error in extremis conflicts with the Pennsylvania rule. It was held that when a vessel takes an action in extremis,107 even though it may be in technical violation of the rules, the action is not characterized as a fault, and the vessel is not liable. Hence, the Pennsylvania rule cannot be applied because, as a matter of law, no statutory fault occurred. 108 Finally, it has been noted that the many presumptions of American maritime law are, [ o )ut of step with the laws of most other nations and the international rules relating to collision. . . . [T)he various presumptions of fault seem relics of an earlier time when the law of collision was beset with unrealistic rules (such as divided damages), and there were only rudimentary means of gathering evidence and assembling facts. It would be helpful to clear the underbrush of presumptions and bring the United States law into conformity with international practice.109 But this statement in fact lends support to the contention that Court adopted the rule of comparative negligence in maritime collision cases"); Western Pac. Fisheries, Inc. v. Steamship President Grant, 730 F.2d 1280, 1287 (9th Cir. 1984); Getty Oil Co. v. S.S. Ponce De Leon, 555 F.2d 328,333 (2d Cir. 1977). 10253 U.S. (12 How.) 443,461 (1852); see also BAER, supra note 35, at 224-25 n.5. 103Se e, e.g., National Bulk Carriers v. United States, 183 F.2d 405,408 (2d Cir. 1950). 104 See, e.g., Bucolo Inc. v. SN Jaguar, 428 F.2d 394,396 (1st Cir. 1970). 105 Cuba Distilling Co. v. Grace Lines Inc., 143 F.2d 499,499 (2d Cir. 1944). 106 243 F.2d 401 (5th Cir. 1957). 101 In this instance the vessel turned to port in an effort to avoid collision but failed to signal before doing so. See id. at 402. 10s See Green, 243 F.2d at 403-04. Others argue that the rejection of divided damages has eliminated the need to apply the in extremis doctrine. See Goschka, supra note 99, at 68. But see Owen & Whitman, supra note 75, at 457-58 (arguing that the doctrine is properly applied even after Reliable Transfer). 109 2 SCHOENBAUMsu, pra note 40, § 12-3, at 729 n.29 (citing Healy & Sweeney, supra note 30, at 347-48). 1794 CARDOZO LAW REVIEW [Vol. 19:1779 those presumptions that still exist in maritime law ought to remain. "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." 110 Today, since means of gathering evidence and assembling facts are more advanced, presumptions such as these, based upon experience and probabilities, are more easily rebutted. 111 And, in the absence of rebuttal evidence, the experience and probabilities which gave rise to the presumption are still valid and may be relied upon by the court. 112 III. ST A TUTES AND C!RCUMST ANCES IN WHICH THE RULE HAS BEEN APPLIED A. Statutes to Which the Rule Has Been Applied l. Maritime Statutory Scheme in the United States By its own terms, the Pennsylvania rule applies only in instances where it has been shown, by a preponderance of the evidence, that a vessel committed a statutory violation. 113 In describing the contours of the rule's application, the Supreme Court in The Pennsylvania stated that the burden of proof as to causation shifts to the vessel that was in "violation of a statutory rule intended to prevent collisions." 114 In the United States, maritime law is governed by a statutory scheme designed to provide for the protection and safety of life and property. 115 Prior to 1976, there were three sets of navigation rules governing domestic waters set forth in the United States Code. 116 In 110 Coyle Lines v. United States, 195 F.2d 737, 739 (5th Cir. 1952); see also infra Part III. l1l See 2 SCHOENBAUMsu,p ra note 40, § 12-3,a t 729. 112 Of course, one may argue that the Pennsylvania rule is distinguishable from the foregoing presumptions in that it creates a presumption that is not so easily dismissed. 113 See supra text accompanying note 35. 114 86 U.S. (19 Wall.) 125, 136 (1873). 115 See The Sunnyside, 91 U.S. 208, 222 (1875). This proposition has been reiterated by courts on numerous occasions. See, e.g., City of New York v. Morania No. 12, Inc., 357 F. Supp. 234,240 (S.D.N.Y. 1973). 116 These rules referred to four geographical areas: (1) the Great Lakes Rules, 33 U.S.C. §§ 241-295 (1976) (repealed 1980), applicable to vessels on those lakes and connecting tributaries; (2) the Western Rivers Rules, 33 U.S.C. §§ 301-356 (1976) (repealed 1980), applicable to vessels on the Mississippi River and its tributaries; (3) the Inland Rules, 33 U.S.C. §§ 151-232 (1976) (repealed 1980), applicable to vessels on all other inland waters within United States jurisdiction; and (4) the International Regulations, 33 U.S.C. §§ 1051-1094 (1976) (repealed 1977), applicable to United States vessels on the high seas. See First Nat'l Bank v. Material Serv. Corp., 544 F.2d 911,914 (7th Cir. 1976). 1795 1998] THE PENNSYLVANIA RULE m were for the most part, repealed and replaced 1980, these ruleNs . / al Rules us which apply to vessels in wawith the Inland av1ga ion '. . d' t1'on u9 'th' United States 1uns 1c • ters anywhere w1 . m he Inland Rules are The Intematio1:1al Complementi~g t~e Intergovernmental Maritime Consultive Rules,. de~elopei. J culminated in the London Convention on the Orgamzt~t10~, ;:gc ulations for Preventing Collisions a~ Sea of Interna 1ona . f h L d n Convention were 1972 120 The recommendations o t e on o 1 d th • Executive Order upon which Congress repea e e ac~eptled_ blyat1·on12a1n d enacted new legislation effective as of July pnor eg1s f d t "COL- 15, 1977,122 These rules are commonly re erre o as REGS " 123 S I • ddition to the Inland Navigational Rules and COLREG d n a st be sure to adhere to United States Coast Guar ~::~:~;:.124 It is well established that, since C_oast ~ua~d re~;~tions are enacted pursuant to statutory authonty, t ey ave e R l 33 USC §§ 241-295 the Western Rivers Rules, 33 111 See The Great Lakes u es, • • • ' U.S.C. §§ 301_356, and the Inland Rules, 33 U.S.C. §§ 151-232• 11s 33 U.S.C. §§ 2001-2073 (1994). " ules a I to all vessels upon the inland 119 33 U.S.C. § 200l(a) states that [tte~et: U •1:/ ltates on the Canadian waters of waters of the United States, and to vehsses_ o e n~ict with Canadian law." The Inland the Great Lakes to the extent that t ere is no co Navigational Rules are divided as follows: Part A-General Application Part B-Steering and Sailing Rules . . . . . . (1) Conduct of Vessels in Any Cond1t10no f V1S1b1hty. (2) Conduct of Vessels in Sight of One -~n?:her. (3) Conduct of Vessels in Restricted V1S1b1hty. Part C-Lights and Shapes Part D-Sounds and Light Signals Part E-Exemptions .. Subchapter II-Miscellaneous Prov1s1ons 33 u.s.c. §§ 2001-2073. 120S ee Rinard, supIr a notet75 , ~~;g\lations for Preventing Collisions at Sea, 33 U .S.C. 121 See, e.g., The nterna 1ona §§ 1051-1094. 122 See Rinard, supra note 75, at 251. h" K . h Maru 845 F 2d 818 822 (9th Cir. 23 S Trinidad Corp v Steams ip e1yo , • , . II 1 ee, e.g., • USC § 1602 (1994) with the exception of the m1sce a- 1988). The 1972 COL~E_GS, ~3 h. • • anner as' the Inland Navigational Rules dis- neous prov1• s•1 n0s , are d1v1dedm d dt "e . samCeO mL REGS contains four annexes on t he fo JIo wcussed supra notes 118-19. In a ition, ing ttorbo~ot perator was called to task under th~
rule for. ha~mg ~olhded with a barge while operating the motorboat
while mtox1cated, a violation of Kentucky statutes.155
3. Application to Foreign Vessels and DomestidForeign Law
The Pen7:syl~ani~ rule has also been applied to foreign vessels
found to b~ 11: v10lation of domestic law. As noted earlier, The
PennsY_lva7:za ~tsel~ concerned a collision between British vessels
oCpJe.r ba tm· g1 5m1 v10’dla tion of United States law •1 56T he 1897 case, ,,…h· .1, e
m na, prov1 es further evidence that the Supreme Court • _
tended that no distin~tio~ be _drawn between domestic and foret;n
vessels t_hat operate m v10lation of domestic statutes. The British
steai:nsh1p The Umbria collided with the French steamship The
Iberia, about eleven miles from the entrance to New York Ha b
Th CJ. b · 1. r or.
e m . rza ~as trave mg too fast given the fog conditions, and
The I~e;za faile_d to ~top or reverse her engines upon hearing The
Um~na s warnm~ signal. Both actions were in violation of the
Rev1s~d International Regulations of 1885.158 As to the issue of
~ausation, the Court_ held, inter alia, that “even if [The Iberia] were
m fault, sue~ fault ~1d not contribute to the collision. “159 Although
the Cour~ did ?,~t d1~ectly cite The Pennsylvania, the locution “did
not contnbute 1mphes that the Court was concerned that the vess”
e l mlede t th,e, hb urden under The Pennsylvania , i •e ·• that the v1• 01 a t·1 0n
cou not ave caused the collision.
That later ~ourts have held foreign vessels to the standard of
the Pen~syl~ania rule when found to be in violation of a domestic
statute 1s evidenced by the case of Commonwealth of Puerto Rico
1541 34F .6 73( D.W ash1. 905).
ot~55Ser eC ollinvs. I ndiana& ~ich.E lecC. o.,5 16F .S upp3. 04,30(9S .DI. nd.1 981 For
(9t: c:t~~~)s(ff t~er ulea pphe~_stota trps of En~1-
neer’s Permit. In response, the court pointed out that prior cases th~t applied ~he rule m
such instances only did so when the violation resulted in an obstruc~1on to nav~gable waters
This last distinction is interesting in that it has not been enunciated by pnor courts.
See 0 id. at 1216-17. For a careful analysis of the opinion in G~~at Amer_ic_ans,e e Note,
Breaking New Ice? Southern District of New York Revisits ~a~ztim_e Collzszon Law Governing
Jee Damage: Great American Insurance Co. v. Tug Ciss1 Remauer, 21 TUL. MAR.
L.J. 617 (1997).
213 37 F. 708 (S.D.N.Y. 1889). . . •
214 The state statute provided, inter alia, that timely notice of attachment be given to
the consignee. See id. at 709.
21s Id. at 713.
1808 CARDOZO IA W REVIEW [Vol. 19:1779
this case as a misapplication of the Pennsylvania rule216b ecause the
statute involved did not delineate a clearly defined duty. 217 The
Second Circuit has also applied the rule in a case involving the
death of two seamen who were lost overboard during a storm. The
statutory violations concerned the stowage as well as the condition
of the life rafts and boats. 218
Not all circuits have been quick to apply the rule to noncollision
cases, however. In Garner v. Cities Service Tankers
Corp.,
219
the Fifth Circuit recognized that other circuits had applied
the rule to non-collision cases but stated “we have found no
instance where this court has done so. “220 Therefore, the court declined
to extend the rule “from its tort origins” to the present issue
of “setting ••• contractual indemnity for breach of workmanlike
performance. ”
221
Interestingly, only one week later the United
States District Court for the Southern District of Texas applied the
rule to a non-collision tort case in Armstrong v. Chambers & Kennedy.
222
The Fifth Circuit clarified its position as per the application of
the rule to non-collision cases in Candies Towing Co. v. MIV B&C
Eserman.
223
There, the court pointed to its application of the rule
to a vessel that lacked a required line throwing device and whose
crew failed to make efforts to rescue a man overboard in violation
of the maritime rescue doctrine.224 The court concluded that “beyond
doubt • • • the rule of The Pennsylvania does apply in noncollision
cases. “225
6. Non-Maritime Cases
On rare occasions courts have referred to the Pennsylvania
rule outside the realm of maritime. In Baird v. Franklin, 226 a case
216Se e, e.g., Zapf, supra note 41, at 534.
211Se e supra notes 57-59 and accompanying text.
218Se e In re Seaboard Shipping Corp., 449 F.2d 132, 136 (2d Cir. 1971). 21945 6 F.2d 476 (5th Cir. 1972).
220Id . at 480.
221Id . The court noted further that “a violation of a safety regulation may be strong
evidence of a breach of [workmanlike performance],” but that the issue of proximate
cause is open and subject to proof. Id. at 480-81.
22234 0 F. Supp. 1220 (S.D. Tex. 1972) (holding that the explosion and death of crew
members in the absence of a licensed pilot and valid certificate did not meet the burden of
the Pennsylvania rule).
22367 3 F.2d 91 (5th Cir. 1982).
224
See id. at 94 (citing Reyes v. Vantage S.S. Co., 558 F.2d 238 (5th Cir. 1977). 2
25 Id.; see also In re Seaboard Shipping Corp., 449 F.2d 132, 136 (2d Cir. 1971). 2
26 141 F.2d 238 (2d Cir. 1944). For other examples of the rule cited outside the maritime
context, see President & Dirs. of Manhattan Co. v. Kelby, 147 F.2d 465,476 n.24 (2d
1998] THE PENNSYLVANIA RULE 1809
• • duties of a stock exchange under the Securities E_xmvolvm!
t~:f 1934 to take disciplinary action agai~st one of its
changbee rs ct he ru 1e was cons1″d ered a “useful analogy” fm and att t2em21pI nt
mem_ ‘ den of roof as to causation to the de ~n an ·
to shift th; bur Co~rt cited The Pennsylvania outside the contactt,
tfh em an~t~lmreem lea w m• B.z gel o w v . RK O Radio Picturesm as an1 ef xtex
o of how the issues of fault and causation are fundamenta or
an:r!fishing liability in the United States cmn~on law system. Bt
fts s:ems that the rule was not d~stined toga~°: accepta~ce1~:Js~9 e
0 f “fme law last being cited ma non-mantlme case m .
m~~t;restingly, in at least one instance, the rule has. b~en ap-
• ai lane accident over the high seas. The airlme ~~s
phe~ t~e~~o s6ow that its violation of a Federal Aviation Admmiman.
a • n was not a cause of the accident.230 The case
stratlon reagnul1~ntt1oeresxtainmgp le of the rule’s extension into an
servews haisc h borders precariously close to the e d ge o f man” tim. e j.u –
:i:~~ction in a scenario never contemplated by the Court m its
formulation of the rule.231
C Sealright Co 141 F.2d 972, 979 n.14 (2d Cir. 1944);
Cir. ~945); Package Closure tfi;(N Y. 1920) (Cardozo, J.) (placing the burden _upon a
Martm v. Herzog, 126 N.E. ~1 •.. b t: force” of failing to have lights as reqmred by
sbtuagtugtye )d; riLveewr i_st ovo . vLeorcnogm Isel atn deR p• rR••o~ r~ ·y ·S . 558’ 563 (App. Div. 1898) (Goodrich, J.,
concurring).
221B aird, 141 F.2d at 246 n.5.
22228 9S3e2 e7 UUp.Ss.o 2n5 v1. (O19ti~s,6 1).5 5 F.2d 606, 611 n.5 (2d Cir. 1946); see also Daly, supra note 2, at
79-80 n.9. . . . F 2d 494 (ND Cal 1967).
230Se e Demanes v. Flymg Tiger Lme,
352
• . J t Avi~tio~ Inc. v. City of Cleveland,
m See Pitts, supra note 1
2ct 56
~· l~~:;:c:~~~o: fell within maritime jurisdiction if it
409 U.S. 249,268 (1972), the ourt e. . . . · · ” More recently, the Court
had “a significan_rte l_ationshipt o ~rad1t1onanl _1a;it1:~e:c:~1~~ert maritime jurisdiction a
refined this holdmg m the follow1? manne~. thn type of incident involved to determine
court must (1) “assess the genera~ eatu_res o. ~ maritime commerce”; and (2)
whether the incident ~as a potentI~lly disrup:;v:h~~!~~~.0
~ the ‘activity giving rise to the
“a court must determme whether the gener • • t·v·t “‘ Grubart Inc
• • h’ t t d’fonal mar1t1me ac 1 1 y. • ·
incident’ shows a ‘substantial rel~o~sl;t ~ ;;/ ;34 (1995) (quoting Sisson v. Ruby, 497
v. Great Lakes Dredge & Dock ·• . • • ‘. ·11b t nded again to aviaU.
S. 358,365 (1990)). It will be inter~~tt!ngt~ ~~: 1
fs!~: ~l~h:
1
tion cases in light of the Court’s rev1s1m g o ext::s~o: of maritime jurisdiction.
1810 CARDOZO IA W REVIEW [Vol. 19: 1779
IV. EVOLUTION OF THE BURDEN NEEDED TO REBUT THE RULE
AND ARGUMENTS FOR AND AGAINST THE RULE’S CONTINUED
APPLICATION
A. Changing Standard Under the Rule
From the ti_me of the rule’s inception in 1873 and until 1929,
courts_ tha~ applied the Pennsylvania rule held the vessel in statuto~,
v10lat10n to the stan~a!d of proving that the violation “could
not have caused the colhsion.232 By enunciating the rule in such
~erms, the Court. es~ablished a burden of proof which equals that
1mp~~~d upon cnmmal prosecutors. 233 Notably, Griffin has stated
that [1~t may perhaps be regretted that the word ‘could’ was empl?
yed m !he statement of the rule in the Pennsylvania,” 234 because
this phrasmg ha~ encouraged courts to speculate as to whether a
s!atu;~ry fault might have had any possible connection to the collision:
1?rough the years, courts have been dissatisfied with
pl_acmg this_ h~a~ bu_r~en upon a party in a civil case, particularly
~1th the ~om~1dmg d1v1ded damages rule.236 Hence, courts in a vanety
of ~1rcmts have periodically discussed and adopted alternate
formulat10ns of the Pennsylvania rule.
In the ~929,~ase T~e Mabe~,231 the Second Circuit modified the
7ule by statmg: All_thmgs are mdeed possible, but even in applym~
!~e ~!:~nnsylvanza rule] we are limited to the reasonable probabzh~
ies. No longer would a vessel be required to refute any
possible causal connection between the statutory violation and the
232 See, e.g., Richelieu Navigation Co. v. Boston Marine Ins Co 136 us 408 422 23
(1890); see also Healy & Sweeney supra note 30 at 340 • ., • • ‘ –
. 233S ~e D. aly, supra note 2, at 80′ n.12. Daly fu’ rther s•ta tes that such a burden is justified
J~:e~-t e importance of the interests involved, i.e., the safety of life and property at sea.
234 GRIFFIN, supra note 2, at 472.
235 See id.
236 See supra text accompanying notes 5-6.
. 237_ 3~:.2; 731 (2d Cir. 1929). There are some who point to the Second Circuit’s deci
si~n. m ~ rar:sfer No. 8, 25 F.2d 628 (2d Cir. 1928), as the beginning of the Second Cir:
cu~: amehorat10n of the rule. See, e.g., Pitts, supra note 12, at 579.
The Mabel, 35 F.2d at 732 (emphasis added). Judge Learned Hand considered the
broP.~r burJen under the rule to be a showing that the violation did not cause the collision
4iO (2d~~r :9~~asonable dou~t.” ~ational Bulk Carriers v. United States, 183 F.2d 405,
. th
1
·. . ) (Hand’ J., dissenting). Based upon this, two interpretations of the trend
m e ame 1orat1on of the rule have been suggested. First, that the new “reasonableness”
standard was merely a rearticulation of the term “could not have ” Second th t th
~:idar~ meant that the burden under the rule could be met b; less than’ a stow~n;e:r
yon a reasonable doubt.” Daly, supra note 2, at 80 n.12.
1998] THE PENNSYLVANIA RULE 1811
collision no matter how remote or unreasonable. 239
Twenty-five years later, the United States Court of Appeals
for the First Circuit adopted this same “reasonableness” standard
in Seaboard Tug and Barge, Inc. v. Rederi AB/Disa. 240 In 1955, one
year after the First Circuit’s decision, the Fifth Circuit followed
suit in Compania De Maderas De Caibarien, S.A. v. The Queenston
Heights.241 Nearly a decade later, in Esso Standard Oil Co. v. Oil
Screw Tug Maluco /,242 the Fourth Circuit adopted a reasonableness
standard as well. Unfortunately, despite this new formulation
of the rule in the First, Second, Fourth, and Fifth Circuits, courts
within these circuits have often failed to point out that the rule
ought to be applied in the modified version. Rather, they have felt
it sufficient to quote the Court’s language of “could not,” with no
discussion of reasonableness. 243 Given that the outcome of a case
239 See Zapf, supra note 41, at 525. Zapf also cites United States v. Petroleum Navigation
Co., 85 F.2d 54 (2d Cir. 1936), in support of the contention that, even in the Second
Circuit, the new formulation of the rule was not immediately accepted. See Zapf, supra
note 41, at 525.
240 213 F.2d 772 (1st Cir. 1954). The court stated:
We cannot believe that the Supreme Court in The Pennsylvania intended to
establish as 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 … that the offending ship has the burden of showing that its
statutory fault “could not by any possibility have contributed” to the collision,
we nevertheless feel that in applying the rule of The Pennsylvania “we are limited
to the reasonable probabilities.”
Id. at 775 (citations omitted).
241 220 F.2d 120 (5th Cir. 1955); see also China Union Lines, Ltd. v. A.O. Anderson &
Co., 364 F.2d 769 (5th Cir. 1966).
242 332 F.2d 211 (4th Cir. 1964). The Fourth Circuit has, at times, given the case of The
Martello, 153 U.S. 64 (1894), a careful reading in order to muster support for the contention
that the rule as stated by the Supreme Court was intended to be applied using a “reasonableness”
standard. See The Fort Fetterman, 261 F.2d 563,568 (4th Cir. 1958).
243 For examples in the First Circuit, see Havinga v. Crowley Towing & Trans. Co., 24
F.3d 1480, 1483 (1st Cir. 1994); Continental Grain Co. v. Puerto Rico Maritime Shipping
Auth., 972 F.2d 426,436 (1st Cir. 1992); Juno SRL v. S/Y Endeavour, 865 F. Supp. 13, 17
(D. Me. 1994), aff din part rev’d in part, 58 F.3d 1, 3 (1st Cir. 1995). For examples in the
Second Circuit, see In re Tug Helen B. Moran, 560 F.2d 527,529 {2d Cir. 1977); In re A.
Long, 439 F.2d 109, 113 (2d Cir. 1971); Circle Line Sightseeing Yachts Inc. v. City of New
York, 283 F.2d 811,814 (2d Cir. 1960); Great Am. Ins. Co. v. Tug “Cissi Reinauer,” 933 F.
Supp. 1205, 1214 (S.D.N.Y. 1996); Moran Towing & Trans. Co. v. Bouchard Trans. Co.,
1989 A.M.C. 365 (S.D.N.Y. 1988); In re Tug Ocean Prince Inc., 436 F. Supp. 907 (S.D.N.Y.
1977); Barge Poling Bros. No. 23 Inc., v. A.S. Namset, 429 F. Supp. 1315, 1322 (S.D.N.Y
1977); Joseph Navigation Corp. v. Chester, 411 F. Supp. 496 (S.D.N.Y. 1975). In the
Fourth Circuit, see Dodgen v. Timmons, 935 F.2d 1286 (4th Cir. 1991); Hellenic Lines,
Ltd. v. Prudential Lines, Inc., 730 F.2d 159, 162 (4th Cir. 1984); M/V Bernd Leonhardt v.
United States, 393 F.2d 756, 761 (4th Cir. 1968); Magno v. Corros, 439 F. Supp. 592, 598
(D.S.C. 1977). In the Fifth Circuit, see Skidmore v. Gueninger, 506 F.2d 716 (5th Cir.
1812 CARDOZO LAW REVIEW [Vol. 19:1779
ma~ depend upon wheth~r the burden of proof under the Pennsylvania
rule has been met, it seems that courts in these circuits are at
times remiss in not specifying that the rule is not to be strictly applied.
The rule has been reinterpreted by the Ninth Circuit as well.
In States Steamship Co. v. Permanente Steamship Corp.244 the court
explained the rule as follows:
The ultimate standard of reasonableness is a constant in our
common-law system, and through resort to that standard rules
of law expressed in the most absolute terms are made subject to
exceptions dictated by reason. . . . Hence we read the phrase
“could not have been” in The Pennsylvania to mean … [that]
the burden of proof rests upon [ a ship] to establish that the
violation could not reasonably be held to have been a proximate
cause of the collision …. In effect, [the ship) must prove
beyond reasonable doubt that the collision would have occurred,
even if there was a statutory violation.245
. In !~inidad Corp. v. Steamship Keiyoh Maru246 the Ninth Circmt
rev~sited the question of what must be shown to satisfy the
burden imposed by th~ Pennsylvania rule. In Trinidad Corp., the
court reco_unted the history of this question of interpretation and
held that m order to rebut the presumption created by the rule,
~ne must show “by clear and convincing evidence that the violation
could not be reasonably held to have been a proximate cause
of the co~lision.”247 But this reinterpretation of the rule, is not the
panacea it may appear to be.248
B. Arguments for and Against the Rule
Since the inception of the rule, courts and academicians have
mustered numerous arguments for and against its continued appli-
1975)I;n gr_aBma rgeC o.v . TheV alleyL ineC o.,4 70F . Supp.1 40,1 46( E.D.M iss1. 979);
ClaryT owmgC o.v . PortA rthurT owingC o.,3 67F . Supp6. (E.D.T ex.1 973).B ut insofar
as “reasonableneisss a constanitn our commonla ws ystem,o” ne maya rguet h~tt he
re~sonablenesstsa ndarda, lthoughn ot statedi n the foregoingca ses,i s nonethelesism ph:~
· StateS .S.C o.v . PermanentSe. S.C orp.2, 31F .2d8 2,8 7( 9thC ir.1 956).
231F .2d8 2 (9thC ir.1 956)s;e ea lsoR angerI ns.C o.v . ExxonP ipelineC o.,7 60F .
S19u7p3p).9 . 7, 99 (W.D.L a. 1990)K; aiserv . Traveler’sIn s. Co’. 359F . Supp• 90 (E•D • La •
245S tateS .S.C o.,2 31F .2da t 86-87s;e ea lsoP acificT owB oat Co. v. StatesM arine
Corp.2, 76F .2d7 457, 49( 9thC ir.1 960).
2468 45F .2d8 18( 9thC ir.1 988).
~47I d. at 825;s _e~~l soC hurchivll. F/VF jord,8 57F .2d5 71,5 77{ 9thC ir.1 988).I nterestmglyt,
h e poss1b1htthya t courtsm aye ventualloyp t for thisl essers tandardu ndert he
rulew asp resagedb yD aly.S eeD alys, upran ote2 , at 80n .12.
248S eei nfran ote3 09.
1998] THE PENNSYLVANIA RULE 1813
cation. Obviously, the ensuing discussion cannot present every
reasoned opinion voiced on this issue, but the debate may be generally
outlined as follows. . “. . •
It has been noted that the rule has resulted m Judicial rulebending
… [and undermining of] judicial integrity” in_ or~er to
avoid the inequitable results that often_ accompany ap~hcation of
the rule.249 Moreover, since a proportionate fault regime _allows
courts more flexibility in determining fault, rigid presumptions of
all kinds are merely “relics of an earlier time” when “there w~re
only rudimentary means of gathering evidence and asse~blmg
facts. ,,250 Therefore, presumptions such as the Pennsylvania rule
1
are no onger necessary. 251
It should be noted, however, that the rule most often caused
an inequitable result when it was applied in conjunction with the
divided damages rule. 252 “[T]he adoption of propor~ionate _f~ult
should argue for the retention of the rule r~ther tha1:1i ts abohtion,
because the harsh possibility of a vessel bemg held fifty percent to
blame for a ‘minor’ statutory fault has been eliminated.”
253
Therefore
one need not be concerned about further “judicial rule
bending” because the proportionate fault re_gime has elimina_ted
the possibility of an inequitable result stemmmg from the application
of the rule, 254
It has also been suggested that, to the extent that the rule is
tied to the divided damages doctrine, with the establishing of a
comparative fault system, the rule ought to be eliminated.
255
Put
differently, it has been argued that und~r. R~liable T~ansfer th25 :
courts should look to the issue of culpabihty m assessmg fault.
249G oschkas,u pran ote9 9,a t 55 n.28( citingN ationaBl ulkC arriersv . United~ tat:s,
183F .2d4 05( 2dC ir.1 950)).G oschkcaon tendsi,n co~s~nanc”:: !t~L ear~e~H ands dissentingo
pinionin NationaBl ulkC arriertsh, att he ma~ontpya t~ hp-s~rv,_ctoe the r~le,
bute ffectiveliyg noredit . JudgeL earnedH andr ecogmzetdh at t~~ ma1ont”y” .aess saymg
to avoidi njusticeb,u tf eltt hatj udiciailn tegritysh ouldn otb e sacnf1cetdo expiateth e unfortunatea
dherencteo the dividedd amagersu le.”I d.;s eea lsoG ILMOR&E B LACKsu,p ra
note 42, at 495-96.
2502 SCHOENBAsUupMra,n ote4 0,§ 12-3a, t 729.
251S eeO wens, upran ote1 0,a t 803.
252S ees uprate xta ccompanyinogt es5 -6.
253 Browns,u pran ote3 6,a t 836s; eea lsoR utherglensu, pran ote9 9,a t 734.
254S eeO wens, upran ote7 5,a t 453-55. .
255S eeT rinidadC orpv. . S.S.K eiyohM aru8, 45F .2d8 18,825n .S( 9~hC ir.1 988)C; rown
ZellerbacCh orp.v . Willamette-WCo. rp.5, 19F .2d1 3271, 329( 9thC tr.1 975)I;n re GypsumC
arrier4, 65F . Supp.1 0501, 063n .8 (S.D.G a. 1979)O; wen,s upran ote 32,a t 803
n.251P; itts,s upran ote1 2,a t 573;S agers, upran ote2 , at 1262T; etleys, upran ote3 5,a t
128-29.
256S eeM eadow&s Markulis,u pran ote4 8,a t 37-39.
1814 CARDOZO LAW REVIEW [Vol. 19:1779
Therefore, statutory fault only speaks to the degree of culpability
and, since the Pennsylvania rule has no place in such a scheme, it
ought to be overruled. 257
But simply by framing the argument in the wake of Reliable
Transfer in terms of “culpability,” one cannot avoid the fact that
“culpability” and “liability” are synonymous terms.258 It is well established
that the rule does not speak to the issue of culpability/
liability, but rather to the issue of causation.259 Even if a proportionate
fault scheme contemplates that issues such as statutory
fault are to be viewed as factors in determining the total percentage
of liability to be imposed upon a vessel, logic dictates that a
causal connection be drawn between the statutory violation and
the ensuing collision before any culpability/liability may be imposed,
26(r)e gardless of what percentage of the total damage one
may impute to the statutory violation. The Pennsylvania rule
speaks only to the drawing of this causal connection, nothing more
and nothing less.
Following Reliable Transfer, there was speculation that the
Pennsylvania rule would no longer be applicable.261 As time
elapsed, however, even the rule’s detractors were hesitant to state
that the rule did not survive Reliable Transfer.262 In light of the
257 See id. at 39.
258 See ROGET’S 21ST CENTURYT HESAURUSI N DICTIONARYF ORM 442 (Kipfer ed.,
1993).
259 See discussion supra Part II.
26(S)e e statement of Judge Cardozo infra note 286.
261Se e Trudy E. Piatek, Note, Admiralty: The Abandonment of the Division of Damages
Rule in Mutual Fault Collisions in Favor of the More Equitable Proportional Rule, 11
TEX. INT’L L.J. 159, 163 (1976); Brian L. MacDonald, Comment, Admiralty Law-Damages-
The United States Now Follows the Comparative Damages Rule-United States v.
Reliable Transfer, Co., 421 U.S. 397 (1975), 10 SUFFOLK U. L. REV. 116, 123-24 (1975),
cited in Pitts, supra note 12, at 546 n.40. In California v. Italian Motorship /lice, 534 F.2d
836,840 (9th Cir. 1976), the court misconstrued the Pennsylvania rule as being the foundation
for the divided damages doctrine and, hence, the Pennsylvania rule was overruled by
Reliable Transfer. Whatever the meaning of the /lice decision, the Ninth Circuit believes
the rule exists after Reliable Transfer as evidenced by its continued application and reinterpretation
of the rule. See Exxon Co. v. Sofec, Inc., 54 F.3d 570, 577 (9th Cir. 1995);
Trinidad Corp. v. Steamship Keiyoh Maru, 845 F.2d 818, 824-25 (9th Cir. 1988); see also
Pitts, supra note 12, at 548-49.
262Se e Owen, supra note 10, at 803 (“Actually, the presumption is not necessarily incompatible
with a proportionate fault regime.”); Tetley, supra note 35, at 146 (stating the
rule is “perhaps incompatible with the … proportionate fault rule of Reliable Transfer”)
(emphasis added).
More recently, however, Owen and Whitman have taken the position that the rule
clearly survived Reliable Transfer and that now “the rule can, perhaps for the first time,
satisfy its original purpose.” Owen & Whitman, supra note 75, at 454. But this is tempered
by their statement that “[t]he argument remains that the Pennsylvania rule is unr
1998] THE PENNSYLVANIA RULE 1815
t-R rable Transfer cases that have applied the rule, and th?se
pos e z ‘led and analyzed by William L. Peck, the content10n
cthaaste st hceo mruplie did not survive h dl b Reliable Transfer can ar Y e sustained
today.263
• • f 1t
In discussing the place of the rule m a comparativ~ au :eime
the Eleventh Circuit stated that Rel~able Traf!Sfer did nothmg f O
overturn the Pennsylvania rule, but mstead simp~y eased the
rule’s harshness.264 Prior to Reliable Transfer, a ship _unable to
overcome the Pennsylvania rule bore an equal proportion of the
liability; after Reliable Transfer, a ship that vi?lated a statutory
rule is only liable in proportion to th~ comparative degr~e of fault
for the accident. The goals underlymg the Pennsylvania r~le-a
ncern that maritime rules be strictly observed-were not m the
co d • • 26s least bit disturbed by the Reliable Transfer ec~sion• .
One might argue that the rule is incompatible with a system of
roportionate fault in that some courts have understood _that the
fule “makes [a] defendant’s statutory vio~ation presumptivel~ th_e
sole cause and fault of the allision.”266 Similarly, the Fourth Circmt
has held that under the rule, the vessel will be held “sol~ly at fault”
unless she musters sufficient evidence to rebut ~he ~ule _s presumption.
261I t is submitted that this view of the rule is misgu~ded. Even
under a divided damages regime, a vessel found to be m statutory
fault would only be responsible for one-hal~ the _d~mages, n?t the
entire amount.268 Moreover, Justice Strongs ongmal phr~,smg of
the rule states that the burden rests upon the violator to show[]
not only that her fault might not have been one of the causes • • •
necessary after Reliable Transfer, and that its application requires a rigid approa~hf that
violates the generous flexibility of comparative fault. That argument has not foun avor
in the courts, however …. ” Id. at 455• . • • h I
263 See generally Peck, supra note 6 ( outlining and discussmg the apphcation of t e ru e
in cases after Reliable Transfer); Owen & Whitman, supra ~~~~\~~f(~;}~t~t ~ 87).
264 See Self v Great Lakes Dredge & Dock Co., 832 F.2 ,
265 See id.; s~e also Dahlia Maritime Co. v. M/S ~o~dic Challenger, 1994 A.M.~- 2208,
2213 (1993) (“[W]hen it has completed its factual fmdmgs, the ~ourt may d~termme _th~t
the Pennsylvania rule applies … and damages may be ~.ssessed m accord with the pnnc1-
ples of comparative negligence, as per Reliable T~ansfer. ). 8 206 (SD Ny
266 Texas E. Transmission Corp. v. Tug Captam Dann, 898 F._ Supp. 19 , . •. • • •
1995) (emphasis added). The term “allision” means “th~ _actt?n of dashmg agamst or
striking with violence upon; thus in admiralty law an alhs1on 1s the contact_ be~ween a
moving vessel and a stationary object such as a bridge, pier, wharf, or shore side ms:llation.”
2 SCHOENBAUMsu, pra note 40, § 14-1, at 254; see also Weyerhaeuser~?-~-. tr~:
pos Island, 777 F.2d 1344, 1346 n.1 (9th Cir. 1985); Great Am. Ins. Co. v. Tug Ctss1 Rei
naur,” 933 F. Supp. 1205, 1214 n.2 (S.D.N.Y. 1996). .
267 See Bradshaw v. The Virginia, 176 F.2d 526,530 (4th Cu. 1949).
268 See supra note 2.
1816 CARDOZO LAW REVIEW [Vol. 19:1779
but that it could not have been. “269 Hence, the Court never cont~~
plated that the ru~e would presumptively place sole responsib~
lity upon the vessel m statutory violation. It is clear that the divided
d~ma¥es regime created in Reliable Transfer does not negate
the application of the Pennsylvania rule.
It, has been argue~ that th~ _rule is based upon the Supreme
Court s erroneous readmg of Bntish statutes and, in any event, the
rule has been so attenuated by the condition/cause distinction 210
t~e circuit court’s addition of “reasonableness,” 271 and the d~ctnnes
of last clear chance,272 error in extremis 273 and major-minor
fault,274 that it ought to be overruled. 275 Insofa; as the rule is based
upon a misreading of British statutes, history has made this fact irreleva~
t.. Moreov~r_, the Court’s intent was to establish a general
proposition of mantime law, not to interpret British law.276
~he arg_ument that the rule has been severely attenuatede~
en if sustamable at one time-is no longer persuasive. The doctnnes
of “last clear chance” and major-minor fault have been removed_
from ma~itime j_urisprudence in light of Reliable Transfer.in
Error m extremis-which predates the Pennsylvania rule by over
twenty years278 and, therefore, cannot be construed as a reaction to
~he rule-is simply a circumstance in which a court finds that there
is no statutory _f~ult and, th~r~for_e, the rule never begins to operat~.
!he condition/cause distmction is a dubious one at best, and
fa~ls m anr case bec_ause the ~ases ~hat have attempted to apply
this doctnz:ie. have ~n fact misapplied the Pennsylvania rule.279
~oreover, it is submitted that courts only opted for this distinction
m order to a~~id in~quitable results under the divided damages
rule. Hez:ice,i t_i s unlikely that, under a proportionate fault regime,
th~ doctnne will often come into play for the purpose of “attenuatmg”
th~ Pennsylvania rule. Finally, since “reasonableness is a
constant m our common law system”280 it is likely that the Court
269 The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1873) (emphasis added).
270 See supra Part II.C.
271 See supra Part IV.A.
272 See supra Part II.A.
273 See supra Part !I.E.
274 See supra Part II.D.
21s See Tetley, supra note 35.
276 S ee p·1 tts,s upra note 9, at 577; see also supra notes 35-37 and accompanying text.
211 See supra Part II.A & D.
278 See supra text accompanying notes 106-07.
279 See supra Part II.C.
280 The Mabel, 35 F.2d 731, 732 (2d Cir. 1929); see also supra text accompanying notes
238-39.
1998] THE PENNSYLVANIA RULE 1817
intended the rule to be applied within the context of a reasonableness
standard. Even if this is not so, can it truly be said that the
injection of such a standard is sufficient, without more, to len?
support to the view that the rule has been so attenuat~d that it
ought to be disguarded? On these grounds, the attenuation argument
fails.
It also has been suggested that the rule is deficient in that it
“treat[ s] all rules of navigation as if they were _equa~ in importance,
[ and] obscures the way_ in which the rules differ i~,
2
;~eir ~en~r~l
significance and as applied to the facts of ea~h. cas~. While it is
true that the Pennsylvania rule makes no distmction between the
importance of the navigational rules that might _fa~l within the
rule’s purview, it is difficult to understand how this is to be construed
to support the position that the rule sho_uld be aband~ne~.
Since the rule speaks only to the issue of causation, and not liability,
we must be careful not to place the carriage before the horse.
Once causation in fact is established, the court can then move to
the issue of proximate cause,282 which is where the rule properly
comes into play, and imposes legal liability. Once proximate cause
is determined, an assessment of damages based upon proportionate
fault and considering, inter alia, the importance of the statutory
violation involved, can proceed. It is at this juncture that the
court may evaluate the significance of the statutory violation and
apportion damages accordingly. It is neither the place nor the
purpose of the rule-which speaks only to causation-to categorize
or weigh the importance of a particular statute.
Recently, Professor Rutherglen has contended that the function
of the rule in maritime law can be better accomplished by replacing
the rule with the doctrine of negligence per se:283
The ordinary doctrine of negligence per se creates an irrebuttable
presumption of negligence from violation of the rules of
navigation; the rule of The Pennsylvania adds only the rebuttable
presumption of causation. Yet it is precisely in this respect
that The Pennsylvania rule is unnecessary. The opinion in The
281 Rutherglen, supra note 99, at 738.
282 As Prosser and Keeton have stated:
Once it is established that the defendant’s conduct has in fact been one of the
causes of the plaintiff’s injury, there remains the question whether the defendant
should be held legally responsible for the injury. The term “proximate cause” is
applied by the courts to those more or less undefined considerations which limit
liability even where the fact of causation is clearly established.
W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS§ 41, at 272
(5th ed. 1984).
283 See Rutherglen, supra note 99, at 734, 738-47.
1818 CARDOZO LAW REVIEW [Vol. 19:1779
~e~msylva~ia justified the presumption of causation by emphasizmg
the 1mrortance of the rules of navigation. What recent
cases ~ave fade? to note is that a presumption on the issue of
causat!on ~dds httle to the usual incentives to comply with rules
of n~v1gat1on•• •• The do:tri~e of negligence per se is sufficient
to give the rules of nav1gat1on the prominent role they deserve.
284
The doctrine of negligence per se is used to establish the existence
of a ~uty between two parties and the breach thereof. The
Pennsylvania rule only begins to operate once these issues have
be~n resol~ed.285 ,feeton h~s no!ed that, even once negligence per
se IS estabhshe~ [tJ?ere will still remain open such questions as
the_ causal relationship between the violation and the harm t th
plamtiff._”286 The a~gu~e~t that the purpose of the rule can stfil b;
accomphsh~d by elunm?tm? the intermediary step of surmounting
a presumption of causation 1s not sustainable.
~e purpose of the rule is grounded in deterrence. 287 Logicallf,
given that the doctrine of negligence per se and the Penns lvama.
r~le ~p~ak to two separate and distinct elements of a partrs
case, It Is ~1fficult to s~pport the conclusion that an additional burden
on this separate issue of causation does not create a greater
deterrence effect.288 It is true that
owners and op~rat~rs of American vessels are likely to know of
the rules of nav1?atlon, but_ not the technical effect of the rule of
The Pennsylvarua on the issue of causation. And the owners
and operators of foreign v~ssels, of course, are not likely to be
aware that the rule even exists because it is unique to American
284 Id. at 741. Others have also cast th 1 • .
witho~t ~~e thorough analysis provided b/ :r:;e~:o~e~~~h:~;~!’.ig~~~\fe~!~ although
III2, 8Li5a bility of Wharfingers, Fleeters, and Bailers, 10 TuL. L. REV. 647 665.(1995)p Uzelle, See Daly, supra note 2 at 79. ‘ •
286 K ‘
EET~N ET AL., supra n?te ~82, § 36, at 230. Judge Cardozo distinguished the concepts
of n~ghgence and causation m Martin v. Herzog, 126 N.E. 814 816 (Ny
1920
) •
the following manner: “We must be on d · ‘ . • • ‘ m
~etgtce ~th that of ~he cau~al co_nnec~:ng ~:;w;;~ :::
1~!~11~;:~:
:!~~~eqr~~i~ r
0 ; l~~t:~: ~e ~!:::e~~ ;:h~~:~;!~~~ is not to pay damages for his fault unless the absence
287 Rutherglen states that· “The purpose must be h
deterrence beyond the level.achieved by the doctrin:e~;s~~gl~g:::~,p~: ~~a~ oRef unthhanc,ing
supra note 99, at 746. · erg en,
288 One might represent this point in the following manner:
Let X = deterrence created by the doctrine of negligence per se.
!,-et Y = deterrence created by the Pennsylvania rule.
~:~v:td- that Y has some positive effect on deterrence-and Rutherglen does not claim
a 1s 1s not so-then X + Y must create greater deterrence then x alone.
1998] THE PENNSYLVANIA RULE 1819
law.289
As a practical matter however, shipowners issue manuals to
their captains which very often outline relevant rules and the consequences
for breach. 290 While it is not ~ikely t~a~ s~ch a manual
would explicitly mention the Pennsylv~nza rule, 1t 1s hkely that the
captain will be informed of the gre~~ 1mporta~ce of the statutor_y
rules and that, in the event of a colhs10n, he will be held at fault if
he cannot prove that any statutory violation did not ca_use the accident.
Hence, the Pennsylvania rule should, as a practical matter,
add more to the deterrence effect than would be created by negligence
per se alone. . . .
In addition to these arguments is the fact that application of
the doctrine of negligence per se in maritime would undermine the
fundamental goal of uniformity in maritime law. It is well established
that maritime law is intended to function uniformly
throughout the United States.291 The constitutional extension of
admiralty and maritime jurisdiction to Congress came with well
recognized limitations, one of which was that admiralty and maritime
law “shall be co-extensive with and operate uniformly in the
whole of the United States.” 292
By contrast, the doctrine of negligence per se, as with tort law
generally, has been developed in the context of state law.293
Hence, the manner in which it is to be applied, and its effect on the
issue of causation, has met with a wide variety of interpretations. 294
289 Rutherglen, supra note 99, at 746; see also Thompson, supra note 35, at 228 n.25.
290 See, e.g., Great Am. Ins. Co. v. Tug “Cissi Reinauer,” 933 F. Supp. 1205, 1215
(S.D.N.Y. 1996) (noting that the Reinauer Tugboat Company issued manual that contained,
inter alia, legal consequences of causing swells).
291 See Panama R.R. Co. v. Johnson, 264 U.S. 375 (1924); Knickerbocker Ice Co. v.
Stewart, 253 U.S. 149, 160 (1920) (holding state laws and jurisprudence may not be applied
in a fashion which would “contravene the essential purposes of, or to work material injury
to, characteristic features of [the maritime] law or to interfere with its proper harmony and
uniformity in its international and interstate relations”); Southern Pacific Co. v. Jensen,
244 U.S. 205, 216 (1917); The Lottawana, 88 U.S. (21 Wall.) 558, 575 (1875); see also
MARTIN J. NORIS, THE LAW OF SEAMEN 4-5 {4th ed. 1985); cf Baggett v. Richardson, 342
F. Supp. 1024 (E.D. La. 1972) (noting that in a case involving assault and battery on navigable
waters, state law applied since it did not interfere with the proper harmony and uniformity
of maritime law). For the opposing view, i.e., that uniformity in maritime law does
not exist as a practical matter, see Robert D. Reitz, The Myth of Uniformity in Maritime
Law, 21 TuL. MAR. L.J. 103 {1996).
292 Panama R.R. Co., 264 U.S. at 386.
293 See KEETON ET AL., supra note 282, § 36, at 229-34 and cases cited therein.
294C ompare Keeton’s statement that “once [a statutory breach] has been established,
probably a majority of the courts hold that the issue of negligence is thereupon conclusively
determined, in the absence of sufficient excuse,” id. at 230 (emphasis added), with
Rutherglen’s understanding that the doctrine of negligence per se creates an “irrebuttable
1820 CARDOZO LAW REVIEW [Vol. 19:1779
A federal court presiding over a maritime collision case would be
faced _with the additional burden of determing which state’s interpr~
tation of the doctrine of negligence per se should be applied.
This burden would be excacerbated in cases involving foreign vessels.
And, even if such a decision could be reached on the basis of
choice of law rules, uniformity of maritime law would be destroyed.
Therefore, the doctrine of negligence per se cannot properly
replace the Pennsylvania rule.
Finally, it has been noted that The International Convention
for the Unification of Certain Rules in Regard to Collisions
(“B~~ssels C~n~ention”) eliminated all presumptions of fault in
mantime colhs1ons.295 The majority of seafaring nations have
adopted the recommendations of the Brussels Convention and
hence; the 1/?ited St_ates is out of step with the majority of th;
worlds mantime nations. 296 In this context, adhering to the rule
encourages international forum shopping,297 and creates unnecessary
conflict_s of law.29_8 This, combined with the wide variety of
lower court mterpretat1ons of the rule, has resulted in the rule becoming
unmanageable, and overruling The Pennsylvania would
lsaewrv.2e 99to further uniformity in both domestic and international
With respect to the rule’s incompatibility with the Brussels
Convention, it has been noted that the Convention eliminated
statutory presumptions and not judge made presumptions such as
the Pennsylvania rule.300 Hence, even if the United States were to
presumptioonf negligenceS.”e es upran ote2 84.
It is worthn otingth at_if, a courtw ~reto adoptt heu nderstandinogf n egligencpee rs e
sugge~tebdy Ruthergle_n1, .et.h, at_ negligenpceer se createsa n irrebuttabplere sumption,
replacmgth e Pennsylvanriual e witht he doctrineo f negligencpee r se wouldi mposea
Pbuerndnesnyu lpva~nnrti uhale e s. tatutoryv iolatofra r moreo nerousth an the burdeni mposedb y the
229965S eeP ittss, upran ote1 2,a t 575.
B~ 1957_, thef ollowinnga tionsh ad adoptedt he BrusselCs onventionA: rgentina,
AustraliaB, elgiumB, razilC, anadaD, enmarkE, gyptF, ranceG, ermanyG, reatB ritain,
GreeceI,n diaI: taly!, apan,M exicoT,h eN etherlandNs,e wZ ealandN, orwayP,o landP, ortugalR,
omamaS,p amS, wedenU, .S.S.RU., ruguaya,n dY ugoslaviaS.e eT ankB argeH ygrad~
I, nc.v . ‘!’heT ugG atco2, 50F .2d4 854, 88{ 3dC ir.1 957).W hilet he UnitedS tates
wasm facta s1~natoroyf the treatyt heyh aven ot becompe artiesd espiteth e factt hata t
least8 5 countnesh ad becomep artiesb y 1995. See M.J.B OWMA&N D .J. HARRIS,
MULTILATETRRAELA TIEINSD EXA NDC URRENST ATU3S5 {1984)id; . at 151( 11th
An2n9.7S upp1. 995{) addintgh reep artiesto Treaty5 2).
Se~2 SCHOENBAsUupMra,n ote4 0,§ 12-3a, t 729H; ealy& Sweeneysu, pran ote4 8,
at 348P; ittss, upran ote1 2,a t 575T; etleys,u pran ote3 5,a t 138.
229998S eeT etleys,u pran ote3 5,a t 138. 300S eeH ealy& Sweenesyu, pran ote3 0,a t 348O; wens,u pran ote1 0,a t 803.
“TheB russelCs onventioenli minate’dp resumptioonfsf aulti n regardt o liabilitfyo r
1998] THE PENNSYLVANIA RULE 1821
adopt the Convention at this late date~ the rule w~uld n?t be ~ff
ted The remaining grievances particularly the mcons1stent mteercp
reta• tion and application of the’ rule by 1o wer cou r.t s,3 01a s we 11
as the tendency the rule has to encourage forum shoppm~ and conflicts
of law, can only be addressed by a new formulation of the
rule. The arguments in opposition to the ~ule, w1· _ht 11· m”1te d except1•
0ns, fa1·1• Moreover ‘ the underlying po. hcy behm. d the rule-thde d
need for maritime safety-is more pressmg today m a ~ea crow e
with both pleasure craft and commercial vessels than 1t _was when
the Court first enunciated the rule.302 Further, there 1s no ec~nomically
practical alternative to encourage adherence to mantime
statutes other than such a rule.303 It s~ould_be remembered
that in maritime cases “we are not here dealmg with the comparatively
stable institutions on terra firma on which o~r co~mon law
was developed, but with that peculiar class of r~lationsh1ps_ of human
beings and cargo afloat on a vessel, always hkely t~ ?e m danerous
waters. “304 Unlike on land, it is rare to have a d1sm~ereste?
titness to a maritime collision or stranding. 305 The_r~fore, m ?~d1-
tion to these reasons for keeping the rule, if clanfied, mod1f1ed,
and applied uniformly, the rule can provide a convenient mechanism
for courts to simplify the adjudication of collision cases_31J6
V. PROPOSAFLO RA MODIFIEDR ULE
The Supreme Court needs to recast the Pennsylva,:iia rule in
order to incorporate the better considered lower court 1~terpretations
and developments and set forth a process by which lower
courts can apply the rule in a uniform manner. 307 The Court may
collisio’n b uts uchs tatutoryp resumptioonfsf aultd ifferf romt heP ennsylvanriual e’s? ?nstatutoi;
p resumptioonf causation.O” wen& Whitma?s,u pran ote7 5,a t 453n .47( c1tmg
IshizakKi isenC o.v .U nitedS tates5, 10F .2d8 75{ 9thC ir.1 ?75)): . . . ” .
301It is welle stablishetdh at,i n regardto thec ourtsm ant1mJeU nsd1ct1t~hn~ C onst1~utionm
usth aver eferredto a systemo f lawc o-extensivwei th,a ndop eratmugm formlmy ,
the wholec ountry.”T heL ottawana8,8 U .S._55?87,5 ( 18?5).I t 1sc learf romt hef oregoingd
iscussiothna tt her uleh asr una foulo ft hisb asicp remise. ·
302S eeB rowns,u pran ote3 6,a t 838D; alys, upran ote2 , at 110P; eck,s upran ote6 , at
102Z; apfs, upran ote4 1,a t 539. . .
303S eeP ittss, upran ote1 2,a t 569-7(0a rguintgh ati t is note conomicalfleya siblteo put
inspectorosn e achv essel).
304T heD enali1, 12F .2d9 529, 58( 9thC ir.1 940).
305S eeP ittss, upran ote1 2,a t 570n .235. . . .
306 Cf Boardo f Comm’vs . MfV Farmsum5,7 4~ .2d2 892, 97( 5thC tr.1 978)I;s h1zak1
KisenC o.v .U nitedS tates,5 10F .2d8 758, 79( 9thC tr.1 975).
307R utherglehna ss uccinctlpyo intedo utt hat:
A decisiobny the SupremCe ourti s necessarbye causeth e lowerf ederacl ourts
1822 CARDOZO IA W REVIEW [Vol. 19:1779
opt to use language substantially similar to the following:
In maritime collision cases, when one or both vessels are
found, by a preponderance of the evidence, to be in violation of
any statute that imposes a mandatory duty for the purposes of
avoiding marine collissions, and the injury suffered is one contemplated
by that statute, the Pennsylvania rule will apply in assessing
the issue of proximate cause. This procedural device
requires, in the absence of a superceding statutory burden of
proof scheme, that the violator(s) produce evidence, and persuade
the court by a preponderance of the evidence, that the
statutory breach was not one of the causes of the collision.
Given the difficulties inherent in determining the cause of maritime
collisions, and the importance of maritime safety rules in a
time when waterways and seas are crowded with vessels of
commerce and pleasure, such a rule is necessary to encourage
adherence to the mandate of the statute. Once the court determines
that the violation was one of the proximate causes of
the collision, the court may then proceed to assess the proportion
of liability that may accompany the violation.
This phrasing of the rule expands the application of the rule in
certain respects, and limits its application in others. The first sentence
is careful to establish the instances in which the rule should
be_ ~ade to apply, i.e., even to both vessels and regardless of the
ongm of the statute whether federal, state, local or foreign, as long
as the statute is one concerned with avoiding maritime collisions,
are powerless to depart from its decisions and because Congress is not at all
likely to act on such an isolated issue of collision law. To be sure, this does not
loom large_o n th~ national agenda like issues of abortion, capital punishment, or
even taxat10~ of 1~te~s~atec ommerce …. (At the same time however,] collision
cases compnse a s1gmf1canpt art of the admiralty docket.
Rutherglen, supra note 99, at 747-48. The Court recently decided a collision case which
originated !n the Ninth Cir~’:1it. See Exxon Co., U._S.A. v. Sofec, Inc., 517 U.S. 830 (1996).
The. ~ourt s l~~dmark dec1s1on held that the doctrine of superceding cause is applicable in
maritime col_hs1onc ases. !nterestingly, the Ninth Circuit applied the Pennsylvania rule
pursuant to its understanding that the burden under the rule can be met with clear and
convincing evidence. See Exxon Co., U.S.A. v. Sofec, Inc., 54 F.3d 570, 577 (9th Cir. 1995).
Although The Pennsylvania was cited by the parties as well as amicus curiae see Petitioners’
Reply Brief on the Merits, Exxon (No. 95-129), available in 1996 WL 84600H· iri Respondents’
Brief on the Merits, Exxon (No. 95-129), available in 1996 WL 53643/Maritime
Law Assoc. of the United States Amicus Curiae Brief, Exxon (No. 95-129), available in
1996 WL 15722; Brief for Third Party Respondents and for Respondent Sofec, Inc., Exxon
(~o. 95-129), available in 1996 WL 49220, this interpretation was not called into question.
Smee the Co~rt made no mention of The Pennsylvania one might conjecture that the
Court has tacitly accepted the Ninth Circuit interpretation. This conclusion would be erroneou~.
The rule could not be properly called into question for the trial court specifically
determined that the defendants committed extraordinary negligence and would be liable
even apart from their failure to meet their burden under the rule. See Brief for ThirdParty
Respondents, Exxon (No. 95-129), 1996 WL49220, at *37 n.28.
1998] THE PENNSYLVANIA RULE 1823
sets forth a mandatory duty, and is intended to prevent the injury
that occurred.
The second sentence, by categorizing the rule as a proc~dur~l
device,3osa llows for the rule’s application to vessels th~t colhde m
foreign waters. At the same time, however, _by less:mng the burden
of proof needed to rebut the presui:nption to . a pr~ponderance
of the evidence,” the rule is more m conformitr w~t~ other
maritime presumptions, and with the burden of proof m civil ca~es
in general. Moreover, by making the burde!1 under the rule easier
to meet, it is more likely, given technological advanc~s, that the
burden will be met and hence, judicial essaying to avmd _the rule,
as well as forum shopping, will be discouraged_3!l9 In mstances
where this lesser burden cannot be met, it seems equitable that the
statutory violator be held accountable for the proportionate damage
occasioned by his infraction. . .
The proposed modification th~n makes the J?Ohcy behmd the
rule clear and, in light of that policy, the rule will apply to commercial
and pleasure craft alike. Also, this reiteration of t_he rule,
on two occasions, explains that the rule speaks to the issue of
proximate cause.31° Finally, the statement co~clu_des with an_ explanation
of how the rule is intended to function m a proportionate
fault scheme.
CONCLUSION
The scheme of mutual fault equal division of damages and the
disparate application of the rule by lower courts has led to valid
criticisms of the rule, and the suggestion by many that the rule no
308 It cannot be argued, as was suggested in lshizaki Kisen Co. v. United States, 5~0 F.2d
875 (9th Cir. 1975), that because the rule encompasses both the burdens of product10n and
persuasion the rule is not properly categorized as one of procedur~. See supra text _accompanying
notes 53-56. In maritime law, it is not uncommon to view rules t~at shift both
burdens as rules of procedure. For example, the Ninth Circuit has explame~ that the
Louisiana rule shifts both the burden of production and the burden of persuasion to the
drifting vessel. See Hood v. Knappton Corp.’. ~86 F.2d 3~9, 330-31 (9th Ci~. 1?93). ~her_e
the court went on the explain that “the Loumana rule 1s a procedural principle which 1s
inextricably linked to the substantive maritime goal which it promo~es.” Id. at. 33_1( emphasis
added). Finally, in support of this final contention the court cited other s1m1lar examples,
one of which was the Pennsylvania rule. See id. at 331 n.2. .
309 Adoption of a “clear and convincing” standard, as has been suggested ~y the Nmth
Circuit in Trinidad Corp. v. Steamship Keiyoh Maru, 845 F.2d 818, 825 (9th Cir. 1988), see
supra notes 246-48 and accompanying text, is a step in the direction needed ~o r~~uce forum
shopping. But, as it is still a standard more stringent then usu~lly found m c!Vll c~se~,
it is less likely to do so. Moreover, this standard would be more hkely to enco’:1rage Judicial
essaying than would the more common standard of preponderance of the evidence.
310 See supra note 282.
1824 CARDOZO LAW REVIEW [Vol. 19:1779
longer serves a purpose in American maritime jurisprudence. But,
with the shift to a contributory fault system, the rule provides the
most effective, economical, and manageable method of encouraging
adherence to maritime safety statutes. The problems that have
arisen as a result of the long history of uneven and inconsistent judicial
application of the rule can be remedied by the Court by
adopting the modifications suggested in this Note. With these
modifications, seamen can be afforded the maximum protection
from injuries and damages in collision cases that result from a
statutory breach, while at the same time ensuring an equitable result
in a given case.
Michael Ben-Jacob