Coming About

Once they have set a course, courts can be as slow to come about as a squarerigger in a flat calm. Now the U.S. Supreme Court has finally managed a reversal of course from a line of cases first charted in 1854.

In that original decision, the high court's Justices ruled that the financial damages resulting from a collision at sea should be divided equally among those at fault, no matter who was more responsible. But since 1910, virtually every major nation has adopted an international maritime convention jettisoning that once common rule as unfair. Partly because cargo interests were worried about other aspects of the convention, the U.S. Senate never acted, and U.S. courts for the most part have reluctantly followed precedent. For example, when the Navy tanker Mission San Francisco was rammed by the Liberian freighter S.S. Elna II, a circuit court of appeals decided that the San Francisco's "faults were grave," but "with regret" divided the $3.8 million damages.

Egregious Fault. Last week the Supreme Court was reviewing the case of the Mary A. Whalen, a coastal tanker that went aground in 1968 in gale force winds on a sandbar outside New York harbor. A flashing light maintained by the Coast Guard was not working that night, but the trial court concluded that "the fault of the vessel was more egregious than the fault of the Coast Guard." The blame, ruled that court, was 75%-25%. Yet the damages had to be split evenly. After considering those facts, Justice Potter Stewart, a World War II naval officer, weighed the old "equal division" rule and found it wanting: "An ancient form of rough justice, a means of apportioning damages where it was difficult to measure which party was more at fault." Said Stewart: "It is no longer apparent, if it ever was, that this Solomonic division of damages serves to achieve even rough justice." In fact, some vulnerable owners of negligent ships have rushed to litigate in U.S. courts in order to avoid harsher justice elsewhere. With good reason, a unanimous court concluded that the time had come for the U.S. to assess damages in admiralty cases so as to reflect whenever possible the relative degrees of fault.

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