I sometimes envy the medical profession. For the most part, under a doctor's care you're healed or you die within a relatively short time, and the doctor moves on to his next dance partner. With the legal profession, well, litigation takes a long time and so a single lawsuit may outlive an attorney or two. Thus, it wasn't surprising to read a recent decision from Pennsylvania captioned In re Petition of Frescati Shipping Company, Ltd. and realize it related to something that happened seven years ago. Sometimes the facts are so many and the issues so weighty that it takes a long time to unfold things and that seems to be what happed here.
Back in 2004, a tanker was docking at a New Jersey refinery when it struck something and punctured its hull. The normal sort of things that happen in this situation occurred including oil being spilled, the government launching an investigation, and the vessel owner filing a petition to limit its liability. Ultimately, the vessel owners and the government reached a resolution and then turned against those companies associated with the refinery. Among other things, the refinery, they argued, allegedly fail to survey for obstructions and allegedly failed to notify the vessel of a change in the refinery's maximum draft. Those arguments failed.
The court pointed to "well settled" maritime law that a terminal operator such as the refinery does not guarantee the safety of vessels coming to its docks. While a duty exists to furnish a safe berth including identifying hidden hazards, the court explained, that duty does not extend to the surroundings. In other words, this Court understands a wharfinger's duty as limited to an area immediately adjacent the berth. In rejecting the vessel owners' arguments, the Court observed that the vessel was holed at a location in the anchorage open for the passage of all ships. The court expressed concern that to accept the vessel owner's assertion would overly expand the area for which a wharfinger would be responsible.
The Court made similarly swift business of the vessel owners' assertion that the refinery somehow misrepresented the terminal's maximum depth. Concluding from the record evidence that there was no misrepresentation, the Court then circled the ring, climbed atop the turnbuckle and executed a diving knee drop on this particular assertion. This occurs when a court hypothetically accepts all of your assertions as true and then points out some underlying flaw in your reasoning. Here, the Court noted that this hullabaloo over the draft was irrelevant because the area where the ship was holed had nothing to do with the draft at the berth.
There were other issues, but these were to my eye the most interesting. Whatever the outcome, this maritime decision sounds of good lawyering with interesting arguments and a lot at stake (I've read as much as $177 million). Unlike a doctor, I can assure you these attorneys likely lived and breathed this case for the last approximately seven years. A dance partner, indeed.
Underway and making way.
By John Fulweiler