OFF THE HOOK? The Fatal Fire Aboard the
Dive Boat Conception and the Limitation of Liability Act n Labor Day weekend in 2019, the charter dive boat Conception set out from Santa Barbara, bound for Santa Cruz Island (one of California’s Channel Islands), to provide its thirty-three passengers with a memorable scuba diving adventure. After a day of diving, the boat came to anchor in an uninhabited bay of the sparsely populated island, and everybody bunked down to await further diving adventures the following morning. A morning that most never saw. Overnight, in the pre-dawn hours of 2 September, a fire broke out on board. Five of the six crewmembers (including the vessel’s master) were sleeping on the topmost deck and, after unsuccessful efforts to suppress the fire or to extract passengers, were able to escape. All of the thirty-three passengers and one crew member who were sleeping in accommodations below the main deck were trapped, unable to escape as the boat burned and sank, despite efforts of the other crew and of first responders. It was one of America’s worst maritime disasters—a genuine tragedy. Investigations ensued, of course, but three days after the fire, lawyers for the vessel’s owners—the owners—filed a lawsuit, which asked the federal court to exonerate them—that is, to find them blameless—or at least to limit their liability to a sum fixed by federal statute: as little as zero, or as much as roughly $41,000. As the entire compensation for the loss of 34 human lives and the injuries to the five survivors, that would mean at most an average of less than $1500 per life lost, as the total compensation for the loss. The statute they referenced is the Shipowner’s Limitation of Liability Act, currently codified in US federal law: Title 46 of the United States Code, starting at Section 30501 (the “Limitation Act”). Today’s law is an evolution of a statute enacted by Congress in 1851, more than 170 years ago. The original statute was designed to promote investment in US-flag shipping. This was a time when there was actual competition among the various national merchant fleets for the opportunity to carry the trade of the producer nations of the world—principally those of western Europe. Many of those fleets were already protected by limitation schemes from other sources. The US statute was designed to put the US merchant fleet on a competitive footing with those of the nations with whom it competed for the intercontinental carrying trade—in 1851.
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by CAPT Michael J. Rauworth, USCGR (Ret.)
MV Conception engulfed in flames, 2 September 2019. Limitation is largely not understood by the general public. It tends to provoke public outrage when some incident—like this one—puts it into the headlines: examples include the Deepwater Horizon mega-spill in the Gulf a decade ago (with eleven deaths), and the case of the Titanic, in which the owners were able to limit their liability to less than $100,000. The outrage is not without justification. Indeed, the law itself has been profoundly criticized—not only in the press, but also in scholarly legal articles. Some of the most potent criticism shows up in judicial opinions, including those written by judges who feel themselves constrained by the law to give the shipowner the benefit of limitation, despite their better judgment. In the wake of the Conception disaster, federal legislation has been proposed to amend the Limitation Act,1 and criminal charges have been brought as well. The key to getting the protection of the statute is the phrase “privity or knowledge.” If the incident and the harm is ruled to have happened without the “privity or knowledge” of the management or of the owners (and if the other procedural requirements have been satisfied), then the owners cannot be held liable for more than the cap spelled out in the Limitation Act, which is usually far less than the total harm suffered as a result. The tendency of judges in the modern era is decidedly hostile, though, to finding a lack of “privity or knowledge.” Limitation is accordingly very often denied. Whether the owners of the Conception will establish a right to limitation is yet to be seen; the facts as known suggest doubt. Assuming their claim for limitation is successful, let us consider the ramifications.
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(left) MV Conception, owned and operated by Truth Aquatics out of Santa Barbara, California, ran live-aboard scuba diving excursions out to the Channel Islands.
1 “Small Passenger Vessel Liability Fairness Act of 2021;” S. 2805 and H. R. 5329, 22 September 2021.
SEA HISTORY 179, SUMMER 2022
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