Veendam runs into a crane...blog from ship

[Maritime51]

This is an exciting addition to CC: arguing about linguistics. From a financial point of view, it is hard to be more "major" than an act which results in your taking entire financial responsibility. :rolleyes:

 

You misconstrued my comment: "major" is not a term of art, and means nothing under the general maritime law. Financial responsibility is not a term of art, either. Liability remains fixed and is allocated under the general maritime law, and does not vary based on the act of intervention: if one fails to intervene, the shipowner is liable; if one intervenes and is negligent, the shipowner is liable.

 

Either you don't understand, or you simply took my comments out of context.

 

Point: the shipowner, acting throught the master, HAS A NON-DELEGABLE DUTY TO USE PRUDENT SEAMANSHIP AT ALL TIMES, WHICH CAN MEAN A DUTY TO INTERVENE UNDER THE CIRCUMSTANCES, thus "major act" means nothing AND CHANGES NOTHING IN TERMS OF LIABILITY: it REMAINS with the shipowner at all times, but the duty may vary under the circumstances.

 

Linguistics, I suspect, is a misnomer in any event.

[Learoy60]

Fact is this was a chain of events that lead to an incident. Is it customary to have a crane extended over the non working side when another vessel is underway? If it is, is this the best practice during restricted visibility of night operations? In a crowded port operation?

 

I am confident that all parties will investigate the roles each played, and develop any corrective actions moving forward. We are fortunate that no one was seriously injured, the ship's crew responded appropriately and the ship was able to continue it's amazing journey. The ingenuity the crew displayed in coming up with a fix was fantastic, as the metal work might have been easy, but the wood was going to be an issue. Their fix allowed a very important vantage point to remain in use during the cruise.

 

Remember that no one got up on the morning of December 20th, and said hey I think I'll run the ship into a crane today. This is something that is often overlooked in our "blame" society these days.

[Maritime51]

Fact is this was a chain of events that lead to an incident. Is it customary to have a crane extended over the non working side when another vessel is underway? If it is, is this the best practice during restricted visibility of night operations? In a crowded port operation?

 

THE CRANE WAS IN PLACE AND STATIONARY BEFORE THE VEENDAM GOT UNDERWAY. IT IS CUSTOMARY FOR A MASTER TO USE PRUDENT SEAMANSHIP AND ASSURE A PROPER LOOKOUT BEFORE AND DURING THE TIME A VESSEL GETS UNDERWAY IN A BUSY PORT, OR CROWDED ANCHORAGE WHERE ACTIVE OPERATIONS ARE ON-GOING IN AND AROUND MOORED VESSELS.

 

I am confident that all parties will investigate the roles each played, and develop any corrective actions moving forward. We are fortunate that no one was seriously injured, the ship's crew responded appropriately and the ship was able to continue it's amazing journey. The ingenuity the crew displayed in coming up with a fix was fantastic, as the metal work might have been easy, but the wood was going to be an issue. Their fix allowed a very important vantage point to remain in use during the cruise.

 

THE UNDERWRITERS WILL INVESTIGATE, NOT THE SHIPOWNERS. I AGREE THE CREW MADE A SKILLED, TEMPORARY REPAIR AND COMMEND THE CREW FOR IT. If the "crew" had responded "appropriately, the allision would not have occurred-res ipsa and all that....

 

Remember that no one got up on the morning of December 20th, and said hey I think I'll run the ship into a crane today. This is something that is often overlooked in our "blame" society these days.

 

OUR "BLAME" SOCIETY SIMPLY APPLIES THE LAW ESTABLISHED OVER HUNDREDS OF YEARS OF MARITIME CASES. AS FOR THE APPARENT SOPHISTRY OF "GETTING UP" AS EXCUSE OR MITIGATION, WELL, THERE ARE MANY MARITIME AND AVIATION DISASTERS THAT COULD BE DISMISSED ON SIMILAR GROUNDS, WHICH, OF COURSE, BEGS THE QUESTION OF OUR "BLAME" SOCIETY WHERE WIDOWS AND ORPHANS DEMAND TO BE MADE WHOLE FOR DEAD SPOUSES, ETC. One maritime disaster, the Titanic, comes to mind right off: I doubt ole Captain Smith got up that morning thinking I'll use great speed (custom at the time in ice fields, believe it or not!) to ram an iceberg. Widows and orphans still asserted "blame," and, guess what, liability was confessed but the shipowner, under U.S. law, limited its liability to the pending freight and the value of a few life boats.

 

But, let's take your analogy of "intentional acts" versus simple negligence: both result in liability but one may result in punitive damages.

 

In any event, "Don't cry for me, Argentina," cuz the underwriters, in our "blame society," will pay the damage claims, not you, me or "HAL."

 

ADDENDUM: THE VEENDAM DID NOT LEAVE PORT AT NIGHT-IT WAS BROAD DAYLIGHT! IF YOU THINK THE M/V ARGENTINA IS SOLELY AT FAULT, KEEP DREAMING.

[mudscraper]

Absent the legal mumbo jumbo I hope that Derrick isn`t in any trouble just because he`s a swinger.

[momtoabowhead]

absent the legal mumbo jumbo i hope that derrick isn`t in any trouble just because he`s a swinger.

 

:d lol

[Boytjie]

Absent the legal mumbo jumbo I hope that Derrick isn`t in any trouble just because he`s a swinger.

 

And whatever happened to Allison?!

[Maritime51]

Absent the legal mumbo jumbo I hope that Derrick isn`t in any trouble just because he`s a swinger.

That was the problem: he wasn't a "swinger."

 

Double, double, boil and trouble....

 

Well, I suppose you are a Poet, and don't know it, but your feet show it, cuz they are Long Fellows!

[Learoy60]

I am confident that all parties will investigate the roles each played, and develop any corrective actions moving forward

 

Did I use the words moving when referring to the crane, counselor???

 

Did I state the M/V Argentina was solely at fault, counselor??

 

Did I use the word fault anywhere in my statement??? No I did not, because in my culture we look for HOW, WHY and how can another occurrence be prevented, and in the "blame culture" people like you look for fault...WHO ...and Who's fault was this.

 

Try not to yell so much..it will keep your blood pressure down :)

[Learoy60]

You have even apparently already boiled this down to negligence (I hope because good luck showing intentional act), did you consider error (individual, organizational, procedural). I do not have all the facts, but again you saw everything right???

 

So yes that must mean it was negligence, because a lawyer saw the whole thing...yes counselor you must be right.

 

You are right about one thing though as to the maritime and aviation industries and their past, but do not stop there let's make sure we add the oil, mining, nuclear, medical professions as well...and of course let's not forget on of the biggest of all....NASA. Lot of good rich information out there as to accidents and incidents that happen not as a result of negligence or intentional acts, but good ole pure simple human error...because to err is human and to drift is also human.

 

The night is short and this could be a very interesting conversation over a drink.

 

Have a good night

[Maritime51]

You have even apparently already boiled this down to negligence (I hope because good luck showing intentional act), did you consider error (individual, organizational, procedural). I do not have all the facts, but again you saw everything right???

 

So yes that must mean it was negligence, because a lawyer saw the whole thing...yes counselor you must be right.

 

You are right about one thing though as to the maritime and aviation industries and their past, but do not stop there let's make sure we add the oil, mining, nuclear, medical professions as well...and of course let's not forget on of the biggest of all....NASA. Lot of good rich information out there as to accidents and incidents that happen not as a result of negligence or intentional acts, but good ole pure simple human error...because to err is human and to drift is also human.

 

The night is short and this could be a very interesting conversation over a drink.

 

Have a good night

May I suggest that you change the tinfoil in your hat as, obviously, it is not functioning per specifications. Believe whatever you wish. Oh, I'm a defense lawyer, so from the warped perspective of one who defends against negligence, it appears rather clear to me. As for yelling, well, maybe it was "negligent yelling" on my part since some customs are not known to me and I merely wished to make my comments distinct from your quoted ones. Anyway, if we wish to look for first causes, well, that's a long, long teleological "drink."

 

As for the other industries you cite, it appears you grasp my point: no one "wakes up" (except for those committing intentional wrongs) ready to be negligent as that is the very defenition-the lack of due care in failing to do something or in doing something a reasonable person would not do. As for the concept of fault, well, you can take that one back to the Roman lawyers and farther-if you don't like the society you live in, well, so sorry.

 

Finally, may I suggest that we don't do metaphysics, here, and that the sacred and the profane have nothing to do with how, why or whether a party or parties, historically, are made whole or pay damages for acts or failures to act. It's simple, really, and doesn't involve anything but public policy, fixed over centuries, not the search for flickering shadows on the wall of Plato's cave. (Here is a simple formula that may help you grasp the distinction: since to "err" is "human," humans pay for the damages they cause other humans, whereas being divine means one can't err, hence one doesn't pay damages. Now, of course, there is the defense of Act of God or force majeure, which means a human didn't "err" because what happened was the unforeseable result of an unforeseable force-though had the "human," in using ordinary care, been able to foresee either...well, you take my point.)

[Maritime51]

Did I use the words moving when referring to the crane, counselor???

 

Did I state the M/V Argentina was solely at fault, counselor??

 

Did I use the word fault anywhere in my statement??? No I did not, because in my culture we look for HOW, WHY and how can another occurrence be prevented, and in the "blame culture" people like you look for fault...WHO ...and Who's fault was this.

 

Try not to yell so much..it will keep your blood pressure down :)

 

Once again, in my opinion, those are the most reasonable or necessary inferences from what you did state-oh, there goes the lawyer again....

 

I gues what I should have said was try not to use tactical semantic ambiguity so you can argue your "intent" later-being clear and unambiguous is usually helpful in dialog.

[Maritime51]

You have even apparently already boiled this down to negligence (I hope because good luck showing intentional act), did you consider error (individual, organizational, procedural). I do not have all the facts, but again you saw everything right???

 

So yes that must mean it was negligence, because a lawyer saw the whole thing...yes counselor you must be right.

 

You are right about one thing though as to the maritime and aviation industries and their past, but do not stop there let's make sure we add the oil, mining, nuclear, medical professions as well...and of course let's not forget on of the biggest of all....NASA. Lot of good rich information out there as to accidents and incidents that happen not as a result of negligence or intentional acts, but good ole pure simple human error...because to err is human and to drift is also human.

 

The night is short and this could be a very interesting conversation over a drink.

 

Have a good night

 

Oh, one request: can you stop the ad hominem attacks and keep the "lawyer" thing out of it?

 

First, I said these were my opinions, not facts, and, secondly, you and everyone else can give my opinions (not facts) whatever weight you wish, including some, none or whatever.

 

Why not deal with the issues substantively rather than using the "lawyer card" to potential deny me credility or to attack my opinions (which you are free to do)?

[Maritime51]

For those not interested in casuistry, here are some more of my mere opinions of how this "could" play out in a hypothetical personal injury brought by the old bird who fell, and defended by me (I know, ego....):

 

1. The HAL carriage agreement contains a forum selection clause, and, as I recall, all suits by passengers must be brought in state court in Seattle;

 

2. The state courts are bound to apply the general maritime law of the U.S., including its conflicts doctrines;

 

3. U.S. substantive law would likely be applied;

 

4. Under the forum's evidentiary law and the general maritime law, when a moving object strikes a fixed object, the moving object is presumed to be at "fault" (Yes, Virginia, there are consequences less than divine for simple errors in navigation and management of a vessel);

 

5. The "moving object" may rebut by showing ordinary care under the circumstances, or assert some fault on the part of another (only a defense in state court if the plaintiff is paritally at fault viz, Washington state, e.g., the old bird lingered too long in a place of obvious danger), and either a judge or jury must determine sole fault or due care, but it's a bit tough to overcome this presumption.

 

The evidentiary issue is the so-called "Oregon rule," which makes it clear it is human and "error" to strike a fixed object. For an interesting "chat" about this, see http://admiraltymaritimelaw.blogspot.com/2010/03/comparative-fault-and-oregon-rule.html

 

So, there it is, my mere opinions on "fault," "error," divinity, metaphysics and HAL's forum selection clause: you be the judge!

[mudscraper]

What did Shakespeare say about lawyers? Please refresh my memory.

[bozemanman]

What did Shakespeare say about lawyers? Please refresh my memory.

 

 

On the contrary....I personally find maritime's opinions fascinating and extremely informative. I don't really understand the negativity...he was there and these are his (very) informed opinions!

[Maritime51]

[quote name='mudscraper']What did Shakespeare say about lawyers? Please refresh my memory.[/quote]
As I requested, please feel free to attack the substance of my opinions, but not me: bad ad hominem, bad, bad....

I guess we are kind of like cops-when you need us, well, where is all that self-righteous hatred?

I'll say it, again, I defend them, I don't sue "them."

[bob brown]

I am enjoying this dialogue. I find it educational, whether ever resolved or not.

One point mentioned earlier was the control or command in the Panama Canal....it stated that it was the only place where the pilot was in command over the captain. When the pilot is in command, I believe that the ship's helmsman still actually handles the controls. I can't imagine them letting someone not fully experienced handling that paricular ship handling the helm. Am I correct?

[woody73]

Maritime51 gave us his firsthand account, then things get ugly. It reminds me of the saying, "No good deed goes unpunished."

Woody

[mudscraper]

[quote name='Maritime51']As I requested, please feel free to attack the substance of my opinions, but not me: bad ad hominem, bad, bad....

I guess we are kind of like cops-when you need us, well, where is all that self-righteous hatred?

I'll say it, again, I defend them, I don't sue "them."[/quote]
I don`t attack your opinions of what occured. I believe them to be factual. You feel the need to inform us in the second sentence of your first post that you are an attorney and in subsequent posts you transport us into the lecture hall . Felt like I was watching a rerun of the Paper Chase.

[Maritime51]

[quote name='mudscraper']I don`t attack your opinions of what occured. I believe them to be factual. You feel the need to inform us in the second sentence of your first post that you are an attorney and in subsequent posts you transport us into the lecture hall . Felt like I was watching a rerun of the Paper Chase.[/quote]

Hm, seems to me you attacked me merely for being a lawyer. That is an ad hominem attack.

I mentioned it, first, for two reasons: (1) so no one would be misled by an apparent layman using technical terms (I know you'd spank me later), and (2) so that others might give my opinions more, less or no weight, understanding that I have education and training in a field not known to most.

So, shame on me for saying I'm a maritime lawyer up front, but, there it is, and it still doesn't change "the facts" I claim to have observed, or those apparently admitted by the shipowner, and as to whether it is false modesty or whatever, you be the judge!

So, now, tell "us," do you have some special education, training or experience in the field of allisions, collisions or casuistry that "we" can use to weigh your opinions, or is it just an anti-lawyer prejudice?

One thing I'll keep in mind if you will: my saying anything doesn't make it so, nor does your saying it make it so, either.

Opinions are just that, though I do suggest that mine have factual and legal bases entitled to some weight. Put another way, how can I explain the legal bases for my opinions without taking you to the lecture hall?

[Maritime51]

[quote name='bob brown']I am enjoying this dialogue. I find it educational, whether ever resolved or not.

One point mentioned earlier was the control or command in the Panama Canal....it stated that it was the only place where the pilot was in command over the captain. When the pilot is in command, I believe that the ship's helmsman still actually handles the controls. I can't imagine them letting someone not fully experienced handling that paricular ship handling the helm. Am I correct?[/quote]

Thanks, Bob-often these issues don't get resolved until a judge or jury does it for the parties, but you have put your finger on the very issue that "bugs" most lay folks and young lawyers: there is always a great deal of ambiguity and each side advocates its position until "someone" decides-the lack of "black and white" is the stuff that older lawyers use to represent their client's position under the "guise" of advocacy. Most lay folks see that as chicanery, and, as I've been in it so long and can no longer avoid "advocacy" (putting a client's legal or factual position in the best possible light), perhaps I'm stone blind to it!

I do think it is a very interesting discussion, and remember something I was taught as a common law maxim years ago: the law DOES NOT (oops, blood pressure) follow logic, but rather public policy. Stated another way, we, as a society, get what we demand even if a syllogism would prove otherwise!

Leaving the lecture hall, now, closing the door and running....

ADDENDUM: I missed the earier question about who is actually operating the vessel-it is the ship's crew, under the oral direction of the pilot, since the latter is represented as having peculiar knowledge of local conditions, including currents and uncharted obstructions. So, in lay terms, everything is "as usual" except "instructions" on navigation come not from the master but from the pilot, unless or until he, the master, knows or should know..oops, back into the lecture hall.

[IRL_Joanie]

[quote name='bozemanman']On the contrary....I personally find maritime's opinions fascinating and extremely informative. I don't really understand the negativity...he was there and these are his (very) informed opinions![/quote]

[FONT=Comic Sans MS][SIZE=3][COLOR=Blue][B]I am also reading this quite carefuly and enjoying Maritime's comments immensely!!

I do have a question after reading about one part though and that is you mentioned Maritime51 in your observations of the actual event that passengers had been warned (yelled at) to move (my wording not yours) and it sounds to me as if he did not.... Am I correct or wrong??

And if I am correct, then would he even be able to sue, and win???

Joanie[/B][/COLOR][/SIZE][/FONT]

[Maritime51]

[quote name='IRL_Joanie'][FONT=Comic Sans MS][SIZE=3][COLOR=blue][B]I am also reading this quite carefuly and enjoying Maritime's comments immensely!![/B][/COLOR][/SIZE][/FONT]

[B][SIZE=3][FONT=Comic Sans MS][COLOR=blue]I do have a question after reading about one part though and that is you mentioned Maritime51 in your observations of the actual event that passengers had been warned (yelled at) to move (my wording not yours) and it sounds to me as if he did not.... Am I correct or wrong??[/COLOR][/FONT][/SIZE][/B]

[B][SIZE=3][FONT=Comic Sans MS][COLOR=blue]And if I am correct, then would he even be able to sue, and win???[/COLOR][/FONT][/SIZE][/B]

[B][SIZE=3][FONT=Comic Sans MS][COLOR=blue]Joanie[/COLOR][/FONT][/SIZE][/B][/quote]

Back to the lecture hall:

1. Sorry for any ambiguity;

2. I was above those who were "in peril," saw the wooden railings flipping in the air like match sticks, and yelled, "Get out of there." as it was happening, and the old bird started moving away, with the rest, like a herd of turtles (I'm not saying I'd run any faster!);

3. He slipped and fell during the "event" or in the "teeth of the gale," but if he is to be "faulted" (sorry) at all, it was for "possibly" remaining in a place of peril too long (all issues of fact and defenses-there is that ambiguity, again).

So, the issue is what would a reasonable and prudent passenger do under the same or similar circumstances, with due regard for his own safety?

I would suggest the old bird did what he could, and started "running" the moment I yelled, though after it was over a ships officer came on deck and shooed everyone away, too!

Sum: contributory negligence (the old bird) is no longer a bar to a personal injury action, and is merely weighed by a judge (admiralty jurisdiciton, federal court, no jury trial) or jury (state court) in apportioning, if any, fault.

Experience tells me the old bird "might" get 1% or so fault, which would diminish his damages on a de minimis basis, but that it is a very foolish shipowner who would make that argument to a jury!

As an old bird, the more weighty issue for me is what is an old bird worth? I mean, this was no tasty squab out there, and just how many years before his number comes up will be relevant, along with some other inflammatory issues that I dare not bring up as a "lawyer."

Oops, I'm lecturing...sorry, but the simple answer is "yes," his claims would almost certainly survive a motion to dismiss and go to trial, and yes, he would almost certainly "win," though his damages might be reduced slightly.

[IRL_Joanie]

[FONT=Comic Sans MS][SIZE=3][COLOR=Blue][B]OK thanks for clearing that up for me. I read the actions in the wrong order... You yelled, he tried to move and then an Officer came into play.

I am enjoying the lecture(s)!!

I am not a laywer, did not stay in a Holiday Inn Express last night, but love to learn:)

Joanie[/B][/COLOR][/SIZE][/FONT]

[Maritime51]

[quote name='IRL_Joanie'][FONT=Comic Sans MS][SIZE=3][COLOR=blue][B]OK thanks for clearing that up for me. I read the actions in the wrong order... You yelled, he tried to move and then an Officer came into play.[/B][/COLOR][/SIZE][/FONT]

[B][SIZE=3][FONT=Comic Sans MS][COLOR=blue]I am enjoying the lecture(s)!![/COLOR][/FONT][/SIZE][/B]

[B][SIZE=3][FONT=Comic Sans MS][COLOR=blue]I am not a laywer, did not stay in a Holiday Inn Express last night, but love to learn:)[/COLOR][/FONT][/SIZE][/B]

[B][SIZE=3][FONT=Comic Sans MS][COLOR=blue]Joanie[/COLOR][/FONT][/SIZE][/B][/quote]
Sadly, I'm at the point in life where I enjoy discussing this stuff, but, hey, who knows, you might be in a similar position one day and you can say, "Hey, that old guy said I had a claim...."

Fun is where you find it, I reckon.

Now, should we discuss the shipowner's limitation of liability act of 1859, or just let that one lie?

:)