Article by George Rutherglen
Throughout this century, the rule of The Pennsylvania has created an idiosyncratic presumption in American admiralty law that has complicated the litigation of collision cases. The rule of The Pennsylvania both shifts and increases the burden of proof on the issue of causation. In a famous passage from the case for which the rule is named, the Supreme Court framed the rule in these terms:
[W]hen, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case 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. Such a rule is necessary to enforce obedience to the statute.
This presumption imposed liability on a vessel that violated a rule of navigation when there was no evidence on the issue of causation or when the evidence was that another vessel was principally at fault in causing the collision.
The rule of The Pennsylvania had an especially harsh effect when it operated in combination with the doctrine of divided damages. The doctrine of divided damages, which lies halfway between contributory and comparative negligence, apportioned damages equally between vessels when more than one vessel was at fault in a collision. Together with the doctrine of divided damages, the rule of The Pennsylvania imposed half the liability for a collision on the vessel that violated a rule of navigation, even if the collision occurred largely as a result of the other vessel's fault. This harsh consequence was frequently criticized and led to doctrinal innovations that attempted to minimize its effects, including unacknowledged weakening of the presumption of causation in the rule itself.
With the rejection of divided damages and the adoption of a regime of comparative fault in United States v. Reliable Transfer Co., the worst excesses of the rule of The Pennsylvania were eliminated. After Reliable Transfer, the rule no longer operated to impose half the liability on a party that was less than half at fault. A vessel that violates a rule of navigation is now liable only in proportion to its fault. Reliable Transfer also made American admiralty law more consistent with the maritime law of other nations and with general American tort law. In 1910, the International Convention for Unification of Certain Rules of Law Respecting Collisions Between Vessels adopted the doctrine of comparative fault, and by 1982, forty states had done likewise.
The rule of The Pennsylvania still survives, however, as an anomaly in American tort law and in the maritime law of seafaring nations. It remains a presumption on the issue of causation, which determines whether a vessel can be held liable for any damages at all. Similar presumptions on this issue are found nowhere else in tort law or in maritime law. Indeed, the 1910 International Convention goes further and explicitly abrogates all presumptions on the issue of fault. Nevertheless, in the figurative language of Judge John R. Brown, “This rule still floats, in the wake of U.S. v. Reliable Transfer, which only overruled The PENNSYLVANIA on the point of allocating comparative fault.” Other federal judges have uniformly reached the same conclusion, although one court and a few commentators have suggested that the rule should now be reconsidered.
The argument against preserving the rule is that it can no longer function, after Reliable Transfer, as a clear rule that imposes all, half, or none of the liability on one of the parties. Even before Reliable Transfer, a variety of exceptions mitigated the harsh effects of the rule. After Reliable Transfer, the all-or-nothing operation of the rule is inconsistent with the questions of degree necessarily involved in determining comparative fault. At best, the rule allows a court to make a threshold determination that a party is or is not liable; at worst, it confuses the already complex issue of causation by imposing a rigid rule on widely varying facts. As a presumption of law, it is both broader and less flexible than the doctrine of negligence per se. Both The Pennsylvania rule and the doctrine of negligence per se establish presumptions based on the violation of statutory duties of care, but the rule of The Pennsylvania concerns causation, while negligence per se concerns fault alone. Everything worthwhile accomplished by the rule of The Pennsylvania can be achieved more effectively with the narrower and more flexible doctrine of negligence per se.
This Article adds its voice to the criticism of the rule of The Pennsylvania. Part I examines the decisions that have applied the rule after Reliable Transfer to determine what, if any, difference the rule makes. Part II examines the justification for the rule as a presumption on the issue of causation and how this presumption compares to the doctrine of negligence per se. This Article concludes that the rule of The Pennsylvania should be abandoned in favor of the ordinary rule of negligence per se, which has, at most, an indirect and variable effect on the issue of causation.
About the Author
George Rutherglen.
Citation
67 Tul. L. Rev. 733 (1993)