G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 266—NO. 5 THURSDAY, JULY 8, 2021 ADMIRALTY LAW Expert Analysis ‘Ever Given’ Ship Ruins More Than a Muddy Canal ithin days of the an agreement that the shipown- March 23, 2021 By er will come back to a specified James E. grounding of the Mercante jurisdiction to defend against M/V Ever Given, all claims. It is like bail money headlines were guaranteeing the owner will not Walready focusing on the ship’s flee the jurisdiction (never to be officers and pilots. The massive as the thousands of containers found again), but also that the container ship halted traffic in stacked high above deck pre- owner has the funds in place the Suez Canal for a week. sented a huge sail area for the to pay proven claims. See, e.g., The negative press started gusting winds. But, no official Rule C, In Rem Actions. with a Washington Post story, agency, cargo interest, or Canal “Suez Canal Pilots Come Under authority was going to simply The Ever Given case will be Scrutiny After Grounding of blame Mother Nature, as she is talked about and reviewed Ship.” The Wall Street Journal not equipped with insurance or for many years to come. And, followed with aim at the ves- the wherewithal to pay claims. undoubtedly, the colossal sel’s skipper in an article titled Shortly after the ship was container ship that captured “Egyptian Officials Accuse Ever refloated to cheers of celebra- Given’s Captain of Losing Con- tion, it hit another major road- the world’s attention for six trol of Ship in Suez Canal.” This block. The Ever Given did not days will be “ever giving” to the finger pointing occurred despite even make it to the end of the maritime lawyers and marine reports of powerful sandstorms Suez Canal before it was arrest- experts who will handle this and high winds at the time of ed under maritime law by Egyp- mega casualty far into the fu- the accident, which affected not tian authorities, who demanded ture, perhaps a decade or more. only visibility on the bridge, more than $900 million in secu- but also steerage of the ship rity to let the vessel sail on. In FRCP, Supplemental Rules for maritime law, a ship can be Admiralty or Maritime Claims. JAMES E. MERCANTE (jmercante@rubinfiorella. arrested to obtain security for com) is a partner at Rubin, Fiorella, Friedman & future claims and to enforce a Needless to say, the six days Mercante and President of the Board of Commis- sioners of Pilots of the State of New York. maritime lien. There can also be aground will not soon, if ever, THURSDAY, JULY 8, 2021 be forgotten by Ever Given’s tain and the local pilots? What world’s attention for six days captain and local pilots as the engine and helm orders were will be “ever giving” to the investigations, claims, inqui- given throughout the maneuver- maritime lawyers and marine ries, depositions, and litiga- ing? Was there too much speed experts who will handle this tion ensues and ensnarls them. in close quarters? What was the mega casualty far into the The casualty investigation will effect of bank cushion? Was a future, perhaps a decade or examine the acts or omissions voyage data recorder (black more. of the two Egyptian canal pilots, box) activated and capturing Sinking Feeling: Actions their interaction with the ship’s all communications? And, this Against Captains and Pilots captain prior to getting under- is just the tip of the iceberg. way, and then every step of the Unfortunately, the two pilots Of course, one might think way during the voyage. Issues and captain will be pawns not that “a decade or more” is a to be explored will include: only in the major marine casu- bit far-fetched, but don’t tell • The master-pilot exchange; alty investigations, but in the that to the Exxon Valdez inter- • The conditions at the time admiralty litigations to follow. ests or the captain of that oil of the grounding, and who But the decision to allow this tanker. The Exxon Valdez hit made the decision to get Bligh Reef in 1989, spilling underway despite the pre- It is said that a collision at sea millions of gallons of oil, and vailing winds and weather; will ruin your whole day. Yet, the matter was litigated right • The pilots’ experience; that saying must have been up until 2018, nearly 30 years • The captain’s experience, coined in the days of wooden after the incident. The captain not only on the Ever Given, was charged by the U.S. Coast sailing ships when litigation but also in the Suez Canal, Guard in a license Suspension & was perhaps the exception along with his experience Revocation (S&R) proceeding, not the rule. in tight quarters of a ship of named in the civil lawsuits, and that length, beam and draft giant ship into the canal in the was charged criminally. It took with a ridiculous number of first place must also be scruti- years, but the captain—one of containers (18,300) on board nized. The ship is 1,312 feet long Exxon’s finest—was acquitted and stacked tremendously and nearly 200 feet wide. The at all stages of the criminal trial high. Suez Canal is itself only about and in the S&R proceedings, and The investigation will also 650 feet wide, leaving little mar- did not lose his Coast Guard scrutinize what transpired when gin for error on each side of the license. A maritime classmate the vessel became in extremis. ship. It’s like looking at the ship of the captain and admiralty Were the pilots relieved by the model inside a glass bottle and lawyer took the conn to defend ship captain at any time? Who wondering “How did that get in the skipper and his reputation. was giving the commands in the there?” Then there’s the case of the fateful last turns? Where were The Ever Given case will be Staten Island Ferry, which the tugboats? Who was steer- talked about and reviewed crashed into a concrete pier ing the ship, and how did that for many years to come. And, in New York Harbor in 2003. helmsman perform? Any tran- undoubtedly, the colossal con- The captain and pilot were sit disagreements among Cap- tainer ship that captured the pursued not only by the U.S. THURSDAY, JULY 8, 2021 Coast Guard, but were obvi- liability will be asserted against 862 F. Supp. 1260 (D. New Jer- ous witnesses in civil litigation, the pilot except for his/her will- sey, 1994). and faced potential criminal ful misconduct or gross negli- Hitting Rock Bottom charges as 11 passengers were gence. One shipowner tried to killed and more than 70 were sidestep the terms of the pilot It is said that a collision at injured. The litigations contin- ticket by alleging the pilot was sea will ruin your whole day. ued for nearly a decade. The guilty of gross negligence in a Yet, that saying must have been ferry captain had no insurance, simple grounding at the stern coined in the days of wooden and would be bankrupt if not while docking in Brooklyn. sailing ships when litigation was for a maritime lawyer stepping That argument did not work perhaps the exception not the up and defending the captain and, ultimately, the claim was rule. Today, any type of major pro bono. dismissed, and the shipowner marine casualty will be agoniz- In another harrowing inci- was required to pay the pilot’s ing and costly for years as evi- dent, a federal pilot was sued attorney fees in defending denced by the examples above, personally for $4.6 million by against the bogus claims. Ste- and as is already obvious in the the tug company he was affili- vens Technical Services v. MOR- Ever Given casualty. ated with as a result of the MAC Marine Enterprises, 2004 The Ever Given casualty will grounding of a sludge barge WL 3152788 (E.D.N.Y. 2004). cost billions of dollars and outside New York Harbor en Similarly, the docking pilot will be a windfall for some and route to sea. The pilot was on of the motor tanker BT Nauti- unfortunately a fall from grace the Staten Island Expressway lus was sued personally for a for others. when the barge grounded, yet grounding in 1990 that resulted the tug company sued the pilot in an oil spill in New York Har- (not the tug Captain) claiming bor. The respected federal pilot he left the flotilla too early. became embroiled in the case While litigation lasted over two primarily because the shipown- years, the case was ultimately er had a statutory limitation dismissed. The pilot was fortu- of liability defense and other nate to have purchased marine defenses that the pilot did not license insurance that provid- have. Lawyers figured suing the ed civil legal defense coverage pilot was a way to do an end which eased his emotional (and around the ship owner because financial) pain. pursuant to the pilotage tick- Unfortunately, even with et, the vessel owner could be favorable terms in a “pilot called upon to indemnify the ticket”, pilots get sued. The pilot against any liability to the pilotage clause in New York plaintiffs. The trial took 19 days, Harbor, for example, states 27 witnesses and 247 exhibits, that the federal pilot becomes and was decided more than four Reprinted with permission from the July 8, 2021 edition of the NEW YORK the “borrowed servant” of the years after the incident.