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Keywords

plaintiffdefendantnegligence
plaintiffdefendantnegligencecompliancecommon law

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Hersh v. United States, Not Reported in Fed. Rptr., 2022 WL 214842

Facts

On June 9, 2015, Plaintiffs were night fishing in the Sebastian Inlet when they claimed to have struck a dredge pipe owned by Defendant Cavache, Inc. Plaintiffs alleged that the dredge pipe was not lit and floated to the surface, causing the accident. However, they did not report the incident until four days later, after returning home, and sought medical treatment for injuries they claimed were caused by the allision. The Defendant had marked the dredge area with buoys, lights, and signs warning boaters of the dredging operations.

On June 9, 2015, Defendant was engaged in a project to dredge parts of the Atlantic Intracoastal Waterway, including an area around the Sebastian Inlet. For the project, Defendant laid plastic dredge pipe to transport dredge material.

Issue

Did an allision between Plaintiffs' boat and a floating dredge pipe occur, and if so, did Defendant's negligence contribute to the allision?

Did an allision between Plaintiffs’ boat and a floating dredge pipe actually occur; and if it did, whether Defendant's negligence contributed to the allision?

Rule

The court applied the Oregon Rule, which creates a rebuttable presumption of fault against a moving vessel that allides with a stationary object, and the Pennsylvania Rule, which presumes fault when a party violates a statutory rule intended to prevent allisions.

The court found that this case implicates two common law burden-shifting presumptions invoked when a moving vessel allides with a stationary vessel or object, i.e., the Oregon Rule and the Pennsylvania Rule.

Analysis

The court found that Plaintiffs were presumably at fault under the Oregon Rule because their vessel was operating under its own power and the dredge pipe was a stationary object. Additionally, the court determined that even without the Oregon presumption, Plaintiffs were liable under the Pennsylvania Rule due to their failure to consult Local Notices to Mariners and operate their vessel with reasonable care, particularly at a safe speed and maintaining a proper lookout.

The court noted that, as contemplated by the Pennsylvania Rule, the Navigational Rules and Local Notices to Mariners are designed to avoid potential allisions. The court found that had Plaintiffs acted with reasonable care and in compliance with the relevant rules, the allision could have been avoided.

Conclusion

The district court entered judgment in favor of Defendant, concluding that Plaintiffs failed to provide sufficient evidence to shift the burden under the Oregon Rule and were entirely liable for their own negligence under the Pennsylvania Rule.

Accordingly, the court entered judgment in favor of Defendant.

Who won?

Defendant Cavache, Inc. prevailed because the court found that Plaintiffs failed to prove their claims of negligence against Defendant and were instead liable for their own actions.

Defendant's dredging project consisted of approximately six (6) miles of high-density twenty-four-inch diameter plastic dredge pipe primarily on the west side of the ICW.

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