II. Statutory Violations
Although the Pennsylvania Rule arose out of a vessel
collision case, it is not limited to that type of case, and has
been applied to other maritime actions. See, e.g., Kernan v.
American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382
(1958) (fire on a tug caused by open-flame kerosene lamp carried
on scow in statutory violation); In re Seaboard Shipping Corp.,
449 F.2d 132, 136 (2d Cir. 1971), cert. denied, 406 U.S. 949,
92 S.Ct. 2038, 32 L.Ed.2d 337 (1972) (seaman drowned in tug-tow
case where cargo overloading and improper lifeboat storage were
statutory violations); Petition of Long, 439 F.2d 109 (2d Cir.
1971) (cargo overloading in Load Line Act case was statutory
violation); see also Continental Grain Co. v. Puerto Rico
Maritime Shipping Auth., 972 F.2d 426, 436 (1st Cir. 1992)
("Given the policy underlying the rule, that is to assure strict
compliance with rules pertaining to the safe operation of ships,
we see no reason why the rule should not apply to the capsizing
and sinking of a vessel."); Savoie v. McCall's Boat Rentals,
Inc., 491 So.2d 94 (La.App.Ct. 1986) (electrical technician
injured being transported by personnel basket from vessel to dock
where lack of minimum crew members violated USCG regulations).
Because Mitlof's actions allegedly violated both federal
navigation statutes and USCG regulations, we agree with
plaintiffs that the Pennsylvania Rule should apply in this
case. However, to shift to Mitlof the burden of proof on the
issue of causation, plaintiffs must prove that he violated some
navigational statute or USCG regulation.
Plaintiffs claim that Mitlof operated Conservator either
without a valid COI or, if he had a valid COI, in violation of
its terms. All "small passenger vessels" are subject to
inspection pursuant to 46 U.S.C. § 3301(8). Conservator
qualifies as a "small passenger vessel" under
46 U.S.C. § 2101(35)(A) because it is "less than 100 gross tons" and
"[carries] more than 6 passengers, including at least one for
hire." As such, it is controlled by 46 C.F.R. Chap. I, Subchap.
T (§ 176.100 et seq.). 46 C.F.R. § 176.100(b) states that "each
vessel inspected and certified under the provisions of this
subchapter must, when any passengers are aboard during the tenure
of the certificate, be in full compliance with the terms of the
Mitlof contends that the last COI issued was valid through May
2000 (see Def. Mem. Opp. Summ. J., Ex. G) and that "[t]here is
no automatic `revocation' or `deactivation' upon sale of a
currently certified vessel." (Id. at 4.). Under
46 C.F.R. § 176.107(c), a COI "may be suspended or withdrawn by the
cognizant [USCG inspector] at any time for noncompliance with the
requirements of this subchapter." Moreover, the USCG may require
a vessel to be re-inspected and may issue an "amended COI" that
extends the initial COI after changes in, among other things,
vessel ownership. See 46 C.F.R. § 176.120. As previously noted,
Mitlof did not have Conservator re-inspected after purchasing
it from Norwalk Maritime.
Mitlof argues that he called the USCG's New York district and
spoke to Gary Gaugler, who informed him that the USCG would not
be re-inspecting any "currently certified" vessels coming into
the area. He submits a copy of a request Mr. Gaugler made to the
USCG's Philadelphia district inquiring about the files on two
boats, Lenape Seal and Aaron Burr, both of which are also
owned by Mitlof. (See Def. Mem. Opp. Summ. J., Ex. H.) Both
Mitlof's and Gaugler's actions are consistent with
46 C.F.R. § 176.120, which provides for permissive instead of mandatory
reinspections. However, Gaugler's request nowhere mentions
Conservator. (See Def. Mem. Opp. Summ. J., Ex. H.) Mitlof
also claims that he notified the USCG's Hartford district "as a
courtesy," and offers copies of his phone records as evidence
thereof. (See id. at 4, Ex. I.) However, these records do not
indicate to whom the calls were made or for what purpose.
Although Mitlof may have contacted the USCG about his other
boats, he has presented no convincing evidence that he sought to
have Conservator inspected and certified after purchasing it
from Norwalk Maritime. However, plaintiffs only offer facts from
the USCG's marine casualty reports to prove that the USCG's
Hartford district revoked the initial COI. Such a report, and
anything contained therein, is statutorily inadmissible in a
civil action. See 46 U.S.C.A. 6308(a); Eckstein Marine Serv.,
Inc. v. Crescent Marine Towing, Inc., No. Civ. A. 98-1467, 1999
WL 58264 (E.D.La. Feb.2, 1999). Therefore, whether
Conservator's COI was valid on August 23, 1998 is a triable
issue of fact.
Nonetheless, even assuming arguendo that there was a valid
COI in effect, Mitlof violated it. The COI allowed a maximum of
twenty-one passengers, including crew, and it limited
Conservator's route to the "Norwalk Connecticut harbor area,
not more than (1) mile from shore, on voyages not to exceed
thirty (30) minutes in duration." (See Def. Mem. Opp. Summ. J.,
Ex. G.) These limitations comply with 46 C.F.R. § 176.103
(general requirements) and 176.110 (routes permitted). Mitlof
admits that Conservator was carrying at least twenty-five
passengers, plus two crewmen, on August 23, 1998. This violated
46 C.F.R. § 176.103 and 176.113(a), which states:
The maximum number of passengers permitted must not
be more than that allowed by this section, except as
authorized by the [inspector] under paragraph (d) of
(d) For a vessel operating on short runs on protected
waters such as a ferry, the cognizant [inspector] may
give special consideration to increases in passenger
Because Mitlof operated Conservator as a charter for hire as
well as a water taxi, it did not qualify as a "ferry," but rather
as a "recreational vessel" under 46 U.S.C. § 2101(25)(B).
Moreover, the accident occurred near the Tappan Zee Bridge, well
outside its specified route — the Norwalk, Connecticut harbor
area — which violated 46 C.F.R. § 176.103 and 176.110. Thus,
Mitlof violated the COI even if it was still in effect.
This violation of maritime statutes and regulations, under the
Pennsylvania Rule, imposes upon Mitlof the burden of proving
that operating Conservator either outside its permitted area or
in excess of its stated maximum passenger capacity "could not
have been" one of the causes of its capsizing. However, instead
of attempting to meet the heavy burden imposed on him by the
Pennsylvania Rule, Mitlof argues that Conservator's master,
Sheehan, was solely responsible for the accident.
Because the accident occurred on intrastate navigable waters,
this Court has admiralty jurisdiction pursuant to
28 U.S.C. § 1333. "With admiralty jurisdiction comes the application of
substantive admiralty law." Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 133 L.Ed.2d 578
(1996). "The common law rules of negligence apply in admiralty
law." Diesel Tanker Ira S. Bushey, Inc. v. Tug Bruce A.
McAllister, No. 92 Civ. 5559, 1994 WL 320328, at *6 (S.D.N Y
June 29, 1994). Thus, a master's negligence may be imputed to the
owner. See Leathers v. Blessing, 105 U.S. 626, 629-30, 26 L.Ed.
1192 (1881) ("[T]he relation of the master and of his co-owner,
through him, to the libellant, [is] such as to create a duty on
them to see that the libellant [is] not injured by the negligence
of the master.").
Mitlof argues that Sheehan was a "per diem, independent
contractor." (Def. Mem. Opp. Summ. J. at 3.) As evidence, he
submits a copy of a USCG operator license dated January 5, 1995.
(Id., Ex. F.) However, the names of both the licensed operator
and the licensing USCG lieutenant have been completely redacted.
It is thus
impossible for this Court to determine to whom the license was
granted. Even assuming it was issued to Sheehan, it would have no
bearing whatever on Sheehan's relationship to Mitlof or Hudson
Valley Waterways. Mitlof also claims that Sheehan was solely
responsible for any passenger overloading that occurred, in
violation of "strict company policy" regarding passenger
capacity. (Id. at 3.) As evidence, he submits a copy of the
Hudson Valley Waterways "guidelines" for operating water taxis in
cooperation with "Rivercrest," dated June 1, 1998. Item 3, which
has been highlighted, reads:
The maximum number of passengers at one time will be
twenty and at no time will more than five persons be
allowed on the floating dock. Every effort will be
given to those passengers needing assistance. Our
staff will be briefed regarding these contingencies
before each tour.
(Id., Ex. E.)
This guideline does not absolve the shipowner of liability. The
Second Circuit has ruled that "a ship owner owes to all
passengers aboard its ship the duty of exercising reasonable care
under the circumstances of each case." York v. Commodore Cruise
Line, Ltd., 863 F. Supp. 159, 161 (S.D.N.Y. 1994) (Conner, J.)
(citing Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63,
64-66 (2d Cir. 1988)). Moreover, "[t]he extent to which the
circumstances surrounding maritime travel are different from
those encountered in daily life and involve more danger to the
passenger, will determine how high a degree of care is reasonable
in each case." Rainey v. Paquet Cruises, Inc., 709 F.2d 169,
172 (2d Cir. 1983). Of course, "[t]here must be some failure to
exercise due care before liability may be imposed." Monteleone,
838 F.2d at 65.
In the instant case, Mitlof has not shown the existence of an
issue of fact as to whether he exercised reasonable care in
providing a safe vessel. All the available evidence tends
strongly to show that he did not. On the night before the
accident, Conservator began taking on water while carrying only
ten passengers (see Def. Resp. to Pls. Req. for Admis. at 10),
less than half as many as it carried on August 23, 1998. Thus,
Mitlof knew or should have known that his boat could not safely
carry the larger loads that it frequently was asked to transport.
Had Mitlof followed the statutory guidelines for small
passenger vessels set out in 46 C.F.R. § 176.100 et seq., he
would have had Conservator inspected, and the USCG might have
discovered its potentially fatal unsuitability for its intended
use. Instead, Mitlof not only improperly relied on a prior
certification of the vessel, but exceeded its express
limitations. His lack of care exposed the passengers to an
intolerable risk, even before Sheehan's actions came into play.
Thus Mitlof cannot sustain his burden of showing that his
statutory violations could not have caused the accident. We
therefore rule as a matter of law that Mitlof is liable for the
consequences of the capsizing of the Conservator, whether or
not the master's negligence aggravated the hazard.
For the foregoing reasons, plaintiffs' motion for partial
summary judgment as to Mitlof's liability is granted. Both
parties are directed to appear before the Court at a pretrial
conference at 9 a.m. on Friday, March 9, 2001, to schedule an
inquest to determine the amount of damages.