The Tulane Maritime Law Journal is proud to present another installment in a series of forthcoming posts concerning recent developments in admiralty and maritime law written by members of the Tulane Maritime Law Journal.
*This post has not undergone our full editorial process.
By: Judy Fustok
Barlow v. Liberty Maritime Corp.: The Second Circuit Rejects the Maritime Rescue Doctrine
George Barlow, a third mate of the MOTOR VESSEL LIBERTY SUN, injured himself when he tried to help the crew reattach mooring lines that had broken, deliberately disobeying orders by the ship’s second mate to leave the lines alone. In his failed rescue attempt, Barlow used his own method of bumping the break, which caused the line to let out, whip around the winch, and strike him. Barlow was forced to cease work and return to the United States where his wound became infected. In November 2008, Barlow instituted an action against the LIBERTY SUN and the vessel’s owners, managers, and operators in the United States District Court for the Eastern District of New York, asserting claims of negligence and unseaworthiness under general maritime law. After Barlow argued for a jury instruction in line with the maritime rescue doctrine, the district court returned a verdict in favor of the defendants on both of Barlow’s claims, instructing the jury to use the standard of a reasonably prudent seaman in the same emergency. On appeal, the United States Court of Appeals for the Second Circuit held that 1) the correct standard of care to apply in maritime injury cases was that of a reasonable mariner under the circumstances and 2) the LIBERTY SUN was not unseaworthy as a matter of law. Barlow v. Liberty Mar. Corp., 746 F.3d 518, 529, 2014 AMC 866, 881 (2d Cir. 2014).
The rescue doctrine emerged in tort law to protect rescuers from the standard of contributory negligence, which would bar plaintiffs from recovering when they were even minimally at fault. The rescue doctrine allowed injured rescuers to recover unless their behavior was found to be wanton or reckless, thereby encouraging rescues. The maritime rescue doctrine surfaced after the case of Furka v. Great Lakes Dredge & Dock Co., in which the United States Court of Appeals for the Fourth Circuit found that when an injured plaintiff was engaged in rescue, “there must be evidence of wanton or reckless behavior on plaintiff’s part before any fault may be assigned.” 755 F.2d 1085, 1088, 1985 AMC 2914, 2915 (4th Cir. 1985). While the court conceded that this heightened standard came from the common law, it reasoned that “admiralty must be the one most hospitable to the impulses of man and law to save life and limb and property.” The United States Court of Appeals for the Ninth Circuit adopted the wanton or reckless standard from Furka, and the United States Court of Appeals for the Fifth Circuit has applied a similar standard using the Good Samaritan doctrine in cases where the plaintiff was injured in the course of a rescue. The United States Court of Appeals for the Second Circuit, however, applied a different standard — that of a reasonable mariner.
In Barlow, the Second Circuit declined to adopt the maritime rescue doctrine, setting the standard of care for maritime injury cases as that of a reasonable mariner under the circumstances and parting from other circuits, including the Fourth, Fifth, and Ninth Circuits. The court’s first reason for not following Furka was the context within which the rescue doctrine originated — contributory negligence. The court noted that “maritime law has long used comparative fault” rather than contributory negligence, so the need for the rescue doctrine to protect against contributory negligence was absent. The court’s second reason, as a departure from the Fourth Circuit, was that the need to encourage rescue “has largely disappeared.” The court found that under the reasonable person standard and comparative negligence principles, there were sufficient safeguards for plaintiffs, and rescuers could be confident that the nature of their rescue would be taken into account. The court reasoned that even if rescuers were unreasonable in their rescue, “they will not necessarily be denied any recovery.” The Second Circuit noted that jurisdictions that apply comparative negligence typically hold rescuers to the standard of a reasonable rescuer under the circumstances. Accordingly, the court reasoned that where comparative negligence is the law, a reasonableness standard was most appropriate. Lastly, the court addressed the contention that admiralty especially should apply a rescue doctrine because of the “unique perils of life at sea.” Conceding that life at sea does come with certain dangers, the court found that this unique danger was an insufficient basis for adopting the Furka standard. The court reasoned that the proposed standard would render the defendant liable for injuries that resulted not only from Barlow’s own actions but also “from actions that no reasonable mariner would have taken.” Additionally, the court reiterated that applying a reasonable mariner standard under a comparative negligence liability regime would take into account the context in which the plaintiff acted and allow a plaintiff to “recover in portion to his caution.”
The Second Circuit’s decision in the noted case properly applied the applicable law and history of the maritime rescue doctrine and took into account the basis for applying the rescue doctrine in the maritime context. The circuit split on the legal standard in maritime rescue cases is quite troublesome. As the United States Supreme Court has noted, “maritime law … aims at stability and order … [and] has attempted to avoid or resolve conflicts between competing laws.” Lauritzen v. Larsen, 345 U.S. 571, 582, 1953 AMC 1210, 1218-19 (1953). However, maritime law and most jurisdictions use comparative negligence, rather than contributory negligence, which allows injured rescuers to recover even when they are slightly at fault. Thus, the reasons behind the rescue doctrine, which gave rise to the maritime rescue doctrine, no longer exist. Moreover, the reasonable mariner standard takes into account rescue situations, proportionately allocating the liability of both rescue plaintiffs and defendants. As the Second Circuit noted, the maritime rescue standard would find defendants liable for injuries that resulted from actions that no reasonable mariner would take. The reasonable mariner and comparative negligence standards allow seamen to recover for their damage, protect defendants from liability where plaintiffs did not act reasonably, and holds each party liable for their own fault under the circumstances. Thus, the Second Circuit’s approach is proper and militates in favor of other circuits departing from the Furka standard.