More on Cell Phone Use in the Maritime Industry

Making headlines recently was the multi-million dollar settlement of the death and injury claims arising out of the July 7, 2010 collision of the tug M/V CARIBBEAN SEA and its 250 foot barge with an anchored 33 foot amphibious passenger vessel, DUKW34 in the Delaware River.  Two passengers died and 25 were injured.  In the course of its investigation, the National Transportation Safety Board (NTSB) found that the probable cause of the accident was, in part, “distraction and inattentiveness of the wheel man on the tug as a result of his repeated use of his cell phone and company laptop computer while he was solely responsible for navigating the vessel.”

At trial, in an attempt to distance itself from the actions of the mate, the owner of the tug sought to prove that it had in place policies against cell phone use and that it should not be liable for the mate’s violation of the company’s policy. 

Unfortunately for the owner, counsel for the plaintiffs was able to establish, through the testimony of the tug’s crew, that personal cell phone use while on watch was done “repeatedly, routinely, rampantly and continuously” from 2002 when the policy was established until the accident, according to the lawyers.  In other words, there was a policy prohibiting personal cell phone use in place, but it was ignored and never enforced.  Faced with this damning testimony, on the second day of trial owners of the tug opted to pay a 17 million dollar settlement and not risk a runaway verdict.

Commenting on the tragedy, NTSB chairman Deborah Hersman said, “this is yet another example of the deadliness of distractions.  Distraction is a safety concern across all modes of transportation.  Regardless of the reason, it is not okay to multitask while operating a vehicle – whether it is calling, texting or surfing the web.”  The NTSB issued recommendations to the tug owner to review its management program and develop improved means to ensure that the company’s safety and emergency procedures are understood and heeded by all employees in safety-critical positions.  The NTSB also issued recommendations to the U.S. Coast Guard to increase focus on and oversight of inappropriate use of cell phones and other wireless electronic devices by on duty crewmembers in safety-critical positions so that such use does not affect vessel operational safety.  Additionally, the NTSB issued a recommendation to the American Waterways Operators to encourage their members to ensure that their safety and emergency procedures are understood and adhered to by their employees in safety critical positions.

Further, as a consequence of the collision, the Department of Justice and U.S. Coast Guard charged the mate at the wheel with involuntary manslaughter and moved to revoke his Coast Guard issued license.  The mate ultimately reached a plea agreement to serve one year in prison and voluntarily give up his license.

Ironically, the U.S. Coast Guard has itself been the target of the NTSB for casualties caused by use of cell phones by those in positions of responsibility.  On December 5, 2009, CG 25889 collided with the small passenger vessel Thriller 09 in Charleston, South Caroline, and on December 20, 2009, collision of the CG 33118 with a 24 foot recreational vessel in San Diego, California, that resulted in one fatality.

The NTSB found that in both accidents a contributing factor was use of cell phones by the crew of the Coast Guard vessel.  The NTSB issued two recommendations to the Coast Guard, (1) develop and implement national and local policies that address the use of cell phones and (2) issue a safety advisory to the maritime industry that promotes awareness of the risk posed by use of cell phones and encourages voluntary development of operational policies to address the risk.  In response, the Coast Guard issued Safety Advisory 01-10, which discusses the issue of distracted operations, including the use of cellular telephones and other wireless devices, and recommends that vessel owners and operators develop and implement effective operational policies outlining when the use of cellular telephones and other devices is appropriate or prohibited.  The Coast Guard said that it intends to work with the National Boating Safety Advisory Council in developing guidance for recreation boat operators on the use of cell phones and other wireless devices.

The message is loud and clear – use of cell phones or other wireless devices while navigating vessels or driving your personal vehicle is dangerous.  All companies which operate commercial vessels should have in place a zero tolerance policy against use of cell phones or other wireless devices by crew on watch.  Then the policy must be strictly enforced and its enforcement documented.  If a casualty occurs due to use of such devices and litigation ensues, the vessel owner may be presumed to be at fault and forced to prove its innocence.  Crew could lose their licenses and livelihoods and face criminal prosecution.  And, as here, millions paid.   Have a policy and enforce it without exception.

Will Bland
As a Member at Mouledoux, Bland, Legrand & Brackett, Will Bland regularly represents the interests of vessel operators, both brown water and offshore, oilfield operators, and their insurers in matters involving personal injury, collisions, sinkings, products liability, toxic torts, and contractual disputes. His practice areas include maritime personal injury defense, maritime collision and property damage insurance coverage, contractual indemnity, longshore matters and general litigation. Will can be contacted at (504) 595-3000 or via e-mail at wbland@mblb.com.
Will Bland