Maritime Proctor Blog

By now, our reader has likely seen footage of the M/V Dali, a Singaporean flagged container vessel, striking the Francis Scott Key[2] Bridge in Baltimore.  This maritime casualty obviously received massive news coverage in the United States,[3] as the Port of Baltimore (mostly located upstream or inland from the Francis Scott Key Bridge) is the fifth-busiest container port on the East Coast.[4]  There are currently ten vessels stuck in the harbor and thus unable to make their voyages.[5]  It is unknown how long the Port of Baltimore will remain closed, and at least six people died in this incident.[6] 

Of course, numerous issues arise in any maritime casualty situation.  This blog post will cover some, but not all, of the most obvious issues to any Proctor in Admiralty from the Dali incident.

Who Owned, Operated, & Controlled the M/V Dali?

News reports indicate the owner of the Dali is Grace Ocean Pte., a Singapore entity.  The vessel operator was Synergy Marine Group, also a Singapore entity.  Multiple news outlets report that Maersk chartered the Dali but, according to reports, did not operate it.[7]  Thus, your author assumes this was either a time or voyage charter, and not a bareboat charter.

The Difference Between a Collision & an Allision

A collision in Admiralty occurs when two vessels strike each other while both are in motion.[8]  In contrast, an allision happens when a vessel in motion strikes a stationary object.[9]  The Dali incident is an allision under the General Maritime Law of the United States because the Bridge was, of course, stationary.

Liable Until Proved Not Negligent? Perhaps.

While our reader may believe this is a difference without distinction, the GML would disagree.  There are numerous legal rules triggered when an allision occurs, most notably the invocation of either the Oregon or Louisiana Rules. 

The former rule states that if a vessel operating under its own power strikes a moored/anchored vessel or other stationary object, the burden of proof shifts to the vessel to either disprove negligence/fault, or to prove the accident was inevitable.[10]  As a corollary, the Louisiana Rule mandates if a drifting vessel (or one that lost power) strikes a moored/anchored vessel or stationary object, the moving vessel is presumed to be at fault.[11]

Another rule that could come into play is the Pennsylvania Rule, which states if a vessel violates an Inland Rule of Navigation or other statute/rule designed to prevent collisions, a presumption of at least contributory causation is imputed to the vessel interests.[12] The Pennsylvania Rule thus usually plays hand-in-hand with the Inland Rules of Navigation,[13] which would be the applicable rules to reference in this situation.

Who Has a Claim?

Knowing the aforementioned presumptions work against the vessel interests, the next thing to evaluate is who potentially has a valid claim under the GML or applicable statutes.

The first thing that must be done is establishing maritime jurisdiction.  As discussed in prior blog posts here, one can establish tort or contract jurisdiction under the GML.  Without a full recital of the elements, it seems almost certain maritime tort jurisdiction would exist over the allision and bridge collapse.

-1-    Crewmember Personal Injury Claims. 

If any of the crewmembers aboard the Dali were injured in the allision, they would have claims against their employer for maintenance and cure and negligence under the Jones Act, and a cause of action for unseaworthiness against the vessel owner.[14] 

-2-    Cargo Claims aboard the M/V Dali

Cargo interests aboard the vessel[15] would potentially (depending on the language of their contracts with Maersk) have claims for any damages or delay of the shipment of their cargo.

-3-    Third Party Personal Injury or Wrongful Death Claims

As mentioned above, there are at least six known deaths from persons on the Bridge when the Dali allided with the Bridge.  They would have standard negligence, wrongful death, and survival actions under the GML and, if applicable, state laws.  As an aside, the Admiralty Extension Act would most likely establish the necessary maritime location for any injured persons on the Francis Scott Key Bridge itself.[16]

-4-    Government Claims for Property Damage

The federal and state governments, to the extent they contribute money for the construction and maintenance of the Bridge, will have claims to recover the cost of rebuilding the Bridge.

-5-    Upstream Economic Loss Claims

There are numerous businesses and individuals in the greater Baltimore area that will be negatively impacted by the immediate closure of the Port of Baltimore and the longer process to reconstruct the Bridge. 

A short list would include terminal owners, longshore workers, shipping agents based in Baltimore, and any vessels containing cargo that were outbound when the Bridge collapsed.  As of Tuesday morning, there were approximately twenty vessels inbound to the Port who were in a holding pattern near Chesapeake Bay.[17]

Since the Supreme Court of the United States decided Robins Dry Dock & Repair Co. v. Flint in 1927, the general rule in Admiralty or Maritime cases is a party cannot recover economic losses without some physical injury or proprietary damage.[18]  There are a few widely-held exceptions, but to obtain such requires great effort.[19]

To get around this rule, your author suspects creative plaintiffs may plead the Dali created a public nuisance.[20]  That, however, may be a tenuous claim at this juncture, given the limited investigation to date. And, the federal courts may not be receptive to such a creative theory given the Robins requirement for physical injury or proprietary damage.[21] 

As an example, perishable cargo in one of the ten ships trapped in the Port upstream from the Bridge could have a claim for economic damages due to the deteriorating condition of the product.  However, without physical injury, the loss of revenue from a terminal or to a longshore worker likely would not be compensable due to the Robins bar.

What Could the Dali Do to Defend Itself?

The most obvious strategy is invoke the Richard Kimball defense: “It wasn’t me, it was the one-armed man!”  In this case, targets from the Dali would be component part manufacturers on the vessel, such as the electrical system or engines.  According to the reporting of Costa Paris in the Wall Street Journal, the “lights on the Dali began to flicker about an hour after the ship began its voyage early Tuesday.”[22]  There is some discussion about the presence of “dirty fuel”[23] being a cause of the incident.  If that is the case, the company that provided the fuel bunkers could also be a target.

Another strategy might be to blame the Bridge itself, or at least the organizations responsible for maintaining it.[24]  After the 1980 allision between the Summit Venture and the Sunshine Skyway Bridge in Tampa, Florida, various governmental and highway construction industry groups laid out requirements to have more protection (in the form of dolphins[25] around support structures for bridges.[26]  Whether this was done

The GML also applies pure comparative fault,[27] so bringing in additional defendants to spread the potential damages would be prudent.  Especially given that bridges are expensive.  According to the State of Maryland, it cost $60.3 million dollars to build the Francis Scott Key Bridge from 1972-1977.[28]

The Limitation of Liability Act

However, your author suspects the Dali will file a Limitation of Liability Action in the District of Maryland under 46 U.S.C. §§ 30501-30512 as soon as it receives written notice of a potential claim from anyone. 

This will require the Dali to deposit with the Court money or a bond equal to the value of the vessel and its freight pending.[29]  In the Admiralty world, this is called the Limitation Fund.

Once that occurs and the proper pleadings filed, the Court would issue an order staying all proceedings related to the allision.  Then, all claimants and potential claimants will receive notice, either directly or by publication, of the LOLA proceeding, and will then be required to file a claim in federal court.[30] 

If the Dali can prove a lack of privity or knowledge of the condition giving rise to the allision, the Dali could limit its damages to the Limitation Fund (or receive total exoneration).  Such a ruling would apply to the five general categories of claimants discussed above, as well as any other claimants wishing to bring suit over this allision.

How Long Will This Take To Resolve?  Bet the Over

Anyone with a basic United States civics education knows Francis Scott Key (the namesake of the Bridge) wrote The Star Spangled Banner, the national anthem of the United States.  As even casual sports fans know, a famous singer usually performs The Star Spangled Banner before the Super Bowl and other major professional sporting events in the United States. 

One of the most popular “prop bets” at the Super Bowl is whether the Star Spangled Banner performance will be longer or shorter than a pre-determined time.[31]  This year, for example, Reba McEntire sang the national anthem in 95 seconds,[32] which was over the BetMGM odds of 90.5 seconds.[33]

Your author raises this point only to say, in conclusion, that if there are Las Vegas odds as to how long the litigation will take to resolve the claims related to the 2024 Dali allision, bet the over.

[1] Mr. Knight is a Shareholder at Chamberlian, Hrdlicka, White, Williams & Aughtry, P.C. in Houston, Texas.  Since 2018, Super Lawyers named him a Texas Super Lawyer in the field of Maritime/Transportation law.  He routinely lectures on maritime legal issues, and has litigated numerous collision and allision cases in both state and federal courts in Texas.

[2] Hence the title of this Blog Post.

[3] Costas Paris, Jon Kamp, Paul Kiernan, Gareth Vipers, and C. Ryan Barber, Bridge Over Baltimore Harbor Collapses After Ship Strikes It, The Wall Street Journal, March 27, 2024 at A1 (Paris, et al.).

[4] Liz Young, Companies Turn to Plan B After Closing of Busy Port, The Wall Street Journal, March 27, 2024 at A2.

[5] Nic White, Baltimore bridge’s $81 BILLION trade crisis: Ship crash sparks chaos for US goods as collapse blocks ninth-largest hub for foreign goods that handles 52 million tons a year – with 10 vessels stuck in harbor, The Daily Mail March 26, 2024, found at: https://www.dailymail.co.uk/news/article-13240223/Baltimore-Francis-Scott-Key-Bridge-collapse-port-trade-crisis.html

[6] Paris, et al.

[7] Costas Paris, Dirty Fuel Eyed in Ship’s Loss of Control, The Wall Street Journal, March 27, 2024 at A2.

[8] Thomas J. Schoenbaum, Admiralty & Maritime Law §14-2, p. 107 (practicioner’s treatise series, Vol. 2) (5^th Ed. 2011).

[9] Id.

[10] See The Oregon, 158 U.S. 186 (1895).

[11] The Louisiana, 70 U.S. (3 Wall.) 164 (1866).

[12] The Pennsylvania, 86 U.S. (19 Wall.) 125 (1874).

[13] 33 C.F.R. §§81.03-83.38.

[14] Dutra Group v. Batterton, 139 S.Ct. 2275, 2279-2282 (2019)(describing the history of these claims).

[15] Grand Famous Shipping Ltd. v. China Navigation Co., 45 F.4^th 799 (5^th Cir. 2022).

[16] See Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982).

[17] Liz Young, Companies Turn to Plan B After Closing of Busy Port, The Wall Street Journal, March 27, 2024 at A2.

[18] 275 U.S. 303, 309 (1927); see also Sanders v. Norfolk S. Ry., 400 Fed. Appx. 726 (4^th Cir. 2010)(per curiam)(citing to Robins) and General Foods Corp. v. United States, 448 F.Supp. 111 (D. Md. 1978)(citing to Robins).

[19] Notably, certain federal statutes like the Oil Pollution Act of 1990 create an exception allowing for recovery of pure economic losses.  To date, there are no reports of a significant polluting act under OPA90 that might trigger an exception to this general rule.  The Fourth Circuit also recognizes an exception for commercial fishermen and their crews. See Yarmouth Sea Prods. v. Scully, 131 F.3d 389 (4^th Cir. 1997).

[20] In Illinois v. Milwaukee, 406 U.S. 91 (1972), the Supreme Court held “the application of federal common law to abate a public nuisance in insterstate or navigable waters” was not inconsistent with the Water Pollution Control Act. In Mayor & City Council of Baltimore v. BP PLC, 31 F.4^th 178 (4^th Cir. 2022), the Fourth Circuit held

[21] See Adams v. Star Enter., 51 F.3d 417 (4^th Cir. 1994).

[22] Costas Paris, Dirty Fuel Eyed in Ship’s Loss of Control, The Wall Street Journal, March 27, 2024 at A2.

[23] Id.

[24] Old Lessons May Haunt Baltimore Bridge Tragedy, The Maritime Executive March 26, 2024, found at: https://maritime-executive.com/article/baltimore-bridge-collapse-revives-hard-learned-safety-lessons

[25] Not a Flipper dophin.  The International Dictionary of Marine Aids to Navigation 7-1-090 defines a “dolphin” as a construction driven into a river or sea bed, used either to absorb berthing forces of a vessel, or to provide a mooring point.”  https://www.iala-aism.org/wiki/dictionary/index.php/Dolphin#:~:text=From%20International%20Dictionary%20of%20Marine,to%20provide%20a%20mooring%20point

[26] Old Lessons May Haunt Baltimore Bridge Tragedy, The Maritime Executive March 26, 2024, found at: https://maritime-executive.com/article/baltimore-bridge-collapse-revives-hard-learned-safety-lessons

[27] See Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1125-26 (5^th Cir. 1995), citing to Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408 (1953).

[28] https://mdta.maryland.gov/Toll_Facilities/FSK.html

[29] 46 U.S.C. 30511.

[30] Id.; see also Karim v. Finch Shipping Co., Ltd., 265 F.3d 258, 264 (5^th Cir. 2001).

[31] Sloan Piva, Super Bowl national anthem prop bets 2024: Reba Mcintire’s over-under, length odds, and more, The Sporting News, February 10, 2024, found on-line at: https://www.sportingnews.com/us/nfl/news/super-bowl-national-anthem-length-prop-bets-2024-reba/d2203f90d96053e213b4f14c

[32] Johnny Oleksinski, How long was Reba McEntire’s Super Bowl 2024 national anthem?, The New York Post, February 11, 2024, found on-line here: https://nypost.com/2024/02/11/entertainment/how-long-was-reba-mcentires-super-bowl-2024-national-anthem/

[33] Sloan Piva, Super Bowl national anthem prop bets 2024: Reba Mcintire’s over-under, length odds, and more, The Sporting News, February 10, 2024, found on-line at: https://www.sportingnews.com/us/nfl/news/super-bowl-national-anthem-length-prop-bets-2024-reba/d2203f90d96053e213b4f14c