United States: An Introduction To Maritime Law Presumptions

Maritime law has many unique characteristics that differentiate it from state and federal law. One of these characteristics is the application of presumptions of fault, causation, and the condition of property, which shifts the burden of proof from one party to the other. These presumptions can be a powerful tool for a knowledgeable litigant, and a pitfall for the unwary.

Collisions & Allisions

There are three key presumptions in collision law.

• The Louisiana Rule and Oregon Rule are relatively similar and can be likened to res ispa loquitur because they create a rebuttable presumption of negligence or fault for the casualty.
  • Louisiana Rule is when an unmoored, drifting vessel allides with an anchored vessel or a navigational structure, the moving vessel is presumptively at fault. The Louisiana, 70 U.S. 164 (1866).
  • Oregon Rule is when a vessel under its own power allides with an anchored vessel or a navigational structure. The moving vessel carries the burden of proving the absence of fault. The Oregon, 158 U.S. 186 (1895).

• The Pennsylvania Rule applies when a ship, at the time of a collision, is in actual violation of a statutory rule, intended to prevent collisions. The Rule does not establish fault but is a reasonable presumption that the fault was the sole or a contributory cause of the disaster. For the rule to be applied, there must be proof that there was a violation of a statute, the statute must involve marine safety or navigation, and the injury must be of the nature that the statute intended to prevent. The Pennsylvania, 86 U.S. 125 (1874). To overcome this presumption, the violating vessel must not only prove that the violation of a statute did not cause the collision or allision but also, that the violation could not have contributed to the incident at all. The Pennsylvania Rule can also be applied outside the context of collision cases, for instance in a Jones Act personal injury case. The Fifth Circuit has gone so far as to hold that the Rule applies to any "statutory violator who is party to a maritime accident." Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir. 1991) (citation omitted); see also U.S. v. Nassau Marine Corp., 778 F.2d 1111, 1116 (5th Cir. 1985) ("The [Pennsylvania] Rule does not apply only to collisions.").

Cargo Loss & Damage

In cargo loss or damage cases, the cargo claimant must establish that the cargo was received by the carrier in good condition (also known as "good order") and then delivered by the carrier to the consignee in bad condition (also known as "bad order"). A prima facie case that the cargo was damaged while in the carrier's possession and control is therefore established. Most ocean cargo disputes in the United States are governed by the U.S. Carriage of Goods by Sea Act ("COGSA"), and under COGSA, there are two key presumptions, both of which are rebuttable.

• Clean Bill of Lading. A clean bill of lading is prima facie evidence that the carrier received the goods as described therein and creates a rebuttable presumption that the goods were delivered to the carrier in good condition ("good order"). Terman Foods, Inc. v. Omega Lines, 707 F.2d 1225, 1227 (11th Cir. 1983); Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 352 (2d Cir. 1981); Blasser Bros. v. N. Pan-Am. Line, 628 F.2d 376, 381 (5th Cir. 1980). However, the presumption does not apply when the cargo is packaged such that the carrier could not determine its condition, such as with containerized cargo. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004) ("[W]here the contents of a shipment are not visible or open for inspection, as may be the case when cargo is transferred to the carrier in a sealed container, a clean bill of lading is not sufficient to establish delivery of the goods in good condition."). Regardless, because of this presumption, it is important for vessel crewmembers who are receiving the cargo to understand the importance of "clausing" the bill of lading when cargo is delivered to the carrier in a damaged condition. Clausing the bill of lading simply refers to describing any observed cargo defect (such as wetness, rust, infestation, etc.) on the bill of lading prior to issuing it.

• Notice of Damage within Three Days of Delivery. COGSA requires the cargo interest to provide the carrier with notice of loss or damage within three days after delivery. Nissho-Iwai Co. v. M/T Stolt Lion, 617 F.2d 907, 912 (2d Cir. 1980); Associated Metals & Mins. Corp. v. M/V Rupert De Larrinaga, 581 F.2d 100, 101 (5th Cir. 1978). Failure to provide timely notice results in a presumption that the cargo was delivered in good order. This presumption that the goods were delivered in good order can be overcome with actual evidence that the cargo was damaged in the custody of the carrier.

Used effectively, these presumptions wield immense influence in maritime cases, and understanding their nuances is essential for both legal practitioners and those navigating the high seas of U.S. litigation.

Contact Liskow attorneys Jessie Shifalo and Elizabeth Strunk for further questions on this topic and visit our Maritime Litigation & Casualty Response practice page.

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