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New York State’s Highest Court Dismisses Claim That State Inspectors Failed to Certify Safe Passenger Capacity of Tour Boat “Ethan Allen”

Tour boat Ethan Allen in operation. It capsized and sank on October 2, 2005.

Tour boat Ethan Allen in operation sometime before it capsized and sank on October 2, 2005

The New York Court of Appeals on November 29, 2012, resolved the issue of whether the State of New York “can be held liable to individuals who were injured and the personal representatives of those who lost their lives due to the tragic capsizing of a public vessel — the Ethan Allen.”  The court, in Metz v. State of New York, held “that because the State owes no special duty to these claimants, the claims that the State’s inspectors failed to certify safe passenger capacity on the vessel must be dismissed.”

Forty-seven mostly elderly passengers were aboard the tour boat “Ethan Allen” on October 2, 2005, for what was to be a one-hour cruise to view foliage along Lake George.  The boat suddenly capsized and sank in 70-feet deep waters.  Twenty passengers died.  Several others were injured.  As a “public vessel,” the Ethan Allen was subject to yearly state inspections, following which an inspector appointed by the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation would issue a certificate indicating the vessel’s maximum passenger capacity.   When the Ethan Allen sank, it was carrying 47 passengers and one crewmember, thus within the 48-passenger limit set forth in its state-issued certificate of inspection.

New York’s “Navigation Law” requires a certificate of inspection to operate a a public vessel upon the state’s waters.  A state inspector must carefully examine the vessel and its equipment and only if satisfied that the vessel is in all respects safe and conforms to the requirements of the Navigation Law execute the certificate of inspection.  The state inspector is also required to set forth in the certificate of inspection the number of passengers the vessel can safely transport and the number of crewmembers necessary to safely operate the vessel.

The Ethan Allen after it was raised from 70 feet of water in Lake George

The Ethan Allen after it was raised from 70 feet of water in Lake George

The Ethan Allen was built in 1964 and first inspected by the U.S. Coast Guard.  The vessel’s last U.S. Coast Guard-issued certificate of inspection stated its maximum passenger capacity was 48 persons and that two crewmembers were required to be aboard.  Testimony in the case indicated that when New York took over issuing the Ethan Allen’s certificate of inspection in 1979, until the date of the accident, the boat’s passenger capacity remained at 48.  The boat’s passenger capacity remained unchanged even though its owners modified it in 1989 by replacing its canvas canopy with a heavier one made of wood.  Several state inspectors testified they did not independently verify the vessel’s passenger capacity by conducting a stability test, but rather relied on the number certified from the previous year.  One inspector agreed the passenger capacity figure was simply “rubber stamped,” based on the previously-issued capacity figure from the prior certificate of inspection.  Another inspector referred to the Coast Guard COI’s passenger capacity number as “gospel.”

The New York Court of Appeals agreed with the plaintiffs that “[t]he 48-passenger limit certified by the State inspectors was, however, much higher than the level at which the vessel could safely be operated. Notably, since this accident, the State has increased the average weight per passenger from 140 pounds — an approximation apparently adopted in the 1950s and utilized by the Coast Guard — to 174 pounds.”  The plaintiffs sued the State of New York, claiming it was “negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria, and in failing to require a new stability assessment after the vessel had been significantly modified.”  In response, the state raised several affirmative defenses, including governmental immunity, which was the primary focus of the appeal to the New York Court of Appeals.

The Court of Appeals wrote that its prior decisions had established that “claimants must first establish the existence of a special duty owed to them by the State before it becomes necessary to address whether the State can rely upon the defense of governmental immunity,” and that “it is well settled that the State ‘is not liable for the negligent performance of a governmental function unless there existed ‘a special duty to the injured person, in contrast to a general duty owed to the public.'”

The Court of Appeals held the inspections of the Ethan Allen were “governmental functions” and that “in the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation.”  The Court held that while “[t]he statutory scheme at issue here does require inspectors to issue a certificate of inspection indicating that the vessel is safe and, specifically, certifying the number of passengers the vessel can safely transport…these statutory obligations do not create a special duty of care owed by the State to particular passengers.”  Further, the court found that “recognizing a private right of action would be incompatible with the legislative design.  The Navigation Law does not provide for governmental tort liability, but instead for fines and criminal penalties to be imposed upon vessel owners and operators.”  The court found that when the state leglislature amended the Navigation Law in response to the Ethan Allen tragedy, “it imposed additional safety standards and enhanced certain penalties, but still did not provide for a private right of action.”  Thus, the court wrote, “[u]nder these circumstances, we can infer that the Legislature has determined that these penalties are the best way to enforce violations of the Navigation Law and that the failure to establish a private right of action against the State was deliberate.”

The court concluded: “Although the law is clear, the upshot is that, regardless of any negligence on the part of the State, the victims of this disastrous wreck are essentially left without an adequate remedy.  The Legislature currently has a proposal before it to require public vessels to carry marine protection and indemnity insurance (2011 NY Assembly Bill A6699).  We note that such a requirement — had it existed — might have been able to provide a modicum of relief here.”


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Court Holds “Thunder Horse” Floating Production Drilling Quarters Not “Vessel” Under Maritime Law, So Injured Claimant Cannot Be Jones Act Seaman

BP’s production drilling quarters “Thunder Horse,” located in 6,000 feet deep waters approximately 175 miles southeast of New Orleans in the Gulf of Mexico

In recent years, the oil and gas industry has designed, built, and installed in the Gulf of Mexico hugely expensive and technologically complex drilling and production structures capable of extracting hydrocarbons from beneath the seabed in the Gulf’s deep waters.  In shallower waters, the industry can use jack-up drilling rigs, which, since they have hulls and other vessel-like features, and are comparatively easy to relocate from well to well, courts have repeatedly held are “vessels in navigation” for purposes of admiralty and maritime law.  If a crewman of a “vessel in navigation” is injured, then he or she is generally entitled to bring personal injury claims as a “seaman” under the federal Jones Act (for negligence) and under the general maritime law (or federal common law) for unseaworthiness and maintenance and cure.  But, if the structure is not a “vessel in navigation,” then the worker injured while working on it cannot claim to be a crewman of a “vessel in navigation” and entitled to the remedies reserved to seamen.

Kerr-McGee’s spar, “Red Hawk,” in 5,300 feet of water in the Gulf of Mexico

A typical jack-up drilling rig

Recently, a federal district court in Louisiana held that a massive “floating production drilling quarters” called the Thunder Horse, operated by BP, is not a “vessel in navigation,” and, thus, that the claimant, a worker aboard the structure, could not be a seaman as to that structure, and thus that he was not entitled to pursue a seaman’s personal injury claims, noted above.  In Washington v. BP America, Inc., 2012 U.S. Dist. LEXIS 164371 (W.D. La. Nov. 16, 2012), the court focused on how the Thunder Horse was, with reference to the U.S. Supreme Court’s 2005 decision in Stewart v. Dutra Construction Co., not “practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.”  In Stewart, the Supreme Court concluded, “[t]he question remains in all cases whether the watercraft’s use as a means of transportation on water is a practical possibility or merely a theoretical one.”  In Washington v. BP America, Inc., the court decided the Thunder Horse, like another deep water drilling and production structure at work in the Gulf of Mexico, a “spar” called Red Hawk, is a “work platform,” not a “vessel.”

The key aspects of the Thunder Horse which render it a “work platform,” and not a “vessel,” the court found, are:

  • While it floats like a vessel (on four partially submerged columns), it lacks any means of significant self-propulsion.
  • It was towed to its location in the Gulf of Mexico.
  • It lacks a raked bow.
  • It is “secured to the Outer Continental Shelf with 16 wire and chain mooring lines attached to 19-foot wide piles driven 90 feet into the seabed.”
  • Thunder Horse is connected to the seabed by eight hydrocarbon production lines.
  • Thunder Horse can only move within a 350-foot radius by tightening and slackening its mooring lines and, apart from being temporarily jarred outside this radius in 2005 by Hurricane Dennis, the structure “has stayed within the 350-foot radius.”
  • BP plans to keep Thunder Horse secured to the Outer Continental Shelf for the balance of the 25 year productive life of the wells it services.
  • BP estimated $400 million as the cost to detach Thunder Horse’s mooring lines, secure the wells, and move the structure elsewhere.

Having found the Thunder Horse is not a “vessel,” the Louisiana federal court also concluded the plaintiff in the case, Terrance Washington, who was working as a cook, and who claimed he was injured after he slipped and fell on a walkway on the structure, could not be a seaman under the Jones Act as to the Thunder Horse, and therefore he was not entitled to pursue a seaman’s personal injury claims against BP.


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BP Guilty Plea and Indictments of Individuals

Transocean’s Deepwater Horizon MODU on April 20, 2010

The Deepwater Horizon semi-submersible drilling rig was owned and operated by Transocean and drilling for British Petroleum in the Macondo Prospect (situated in Mississippi Canyon Block 252), about 50 miles offshore Louisiana on April 20, 2010.  When the rig exploded, 11 men were killed, 17 were injured, 99 survived. The Deepwater Horizon burned and eventually sank.  The loss of well control resulted in a multi-day massive oil spill which affected the Gulf of Mexico, the coastlines and economies of several states, and significantly damaged numerous natural resources, both flora and fauna.

Brown Pelican on beach at East Grand Terre Island, Louisiana

In general, I believe when a corporation is allowed to plead guilty and pay a fine, it is unlikely that it will change the corporation’s conduct.  This mindset seems to inform the U.S. Department of Justice’s recent indictment of individual BP employees.  It seems only a matter of human nature that one is more likely to pay closer attention to one’s actions when the individual faces time behind bars.  Do I think these individuals should have been indicted?  Do I think they’re guilty?  I do not know the facts of the case well enough to articulately comment.  And, in my experience, there is no substitute for sitting through an entire trial and hearing all the testimony, watching the demeanor of all the witnesses, and seeing all the trial exhibits, before forming an opinion about any civil or criminal case.

Thus, even though I, like most of us, may reach tentative conclusions in my mind when hearing of an event, or reading in the newspaper a reporter’s account of the day’s testimony in a civil or criminal case, there is simply no substitute for being in the courtroom and listening and watching for oneself.  In this spirit, here are links to the…


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