In Mike Hooks Dredging v. Marquette Transportation Gulf-Inland, LLC et al., No. 12-30474 (5th Cir. 2013), a moving vessel (M/V PAT MCDANIEL owned and operated by Eckstein Marine Service, Inc.) struck the Dredge MIKE HOOKS, which was moored against the bank in a narrow channel in violation of INR 9(g). Thus, the Oregon Rule, which creates a presumption of liability when a moving vessel allides with a stationary vessel, was pitted against the Pennsylvania rule, which creates a presumption of causation when a ship violates a statutory rule of navigation intended to prevent collisions. Under the Oregon Rule, “the moving vessel may rebut the presumption only by proving that the allision was the fault of the stationary object or that the allision was an unavoidable accident.” Under the Pennsylvania Rule, “the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” Following a bench trial, Judge Helen Berrigan assigned 70% fault to the MIKE HOOKS and 30% fault to Eckstein. She focused on a number of near misses from vessels passing by the MIKE HOOKS in the days prior to this allision.
On appeal, the Fifth Circuit agreed the MIKE HOOKS was partially at fault for violating INR 9(g) by mooring in a channel that was less than 1,000 feet wide, with high water conditions, strong currents and eddies, and high winds. However, Mike Hooks argued the Pennsylvania Rule presumption of causation should not apply because the dredge was not obstructing navigation in the channel. The Fifth Circuit rejected that argument and criticized an 11th Circuit case that read in an “obstruction of navigation” requirement into Rule 9(g), holding such an antecedent “departed from the plain wording of the statute.” Mike Hooks also argued it should be excused from mooring in the narrow channel because it had sustained hull damage from a minor collision the night before. However, the Court declined to extend in extremis deference to the MIKE HOOKS, in part because the crack was above the water line and “there was no imminent danger of it sinking.”
The Fifth Circuit also rejected Mike Hooks’s argument that Eckstein’s marine navigation expert, David Scruton, should have been excluded at trial because he had never operated a boat in the ICW and was “not licensed to operate a vessel under the U.S. Coast Guard Rules of the Road, or licensed to do anything in the U.S.” Judge Berrigan held the trial court did not abuse its discretion because Scruton’s testimony was based on extensive experience with maritime navigation in the United Kingdom and his study of a chart already admitted into evidence. The Fifth Circuit AFFIRMED the district court’s allocation of fault between Eckstein and Mike Hooks.
Author: Charles Rothermel