United States: The In ExtremisDoctrine: Maritime Law Recognizes the Tough Tasks Vessel Masters Face in Crisis Situations

Reprinted with permission from Marine Digest and Transportation News

Generally, one’s conduct must comport with that of the law’s nebulously defined and sometimes capriciously applied barometer, the "reasonably prudent man," lest one find one’s self liable under legal negligence theories. Was that person negligent in setting a flower pot on the window sill, which later fell onto someone’s head? Let’s see. What would the reasonably prudent man have done? Hmm.

Most of us in the shipping industry do our chores only dockside, attending to business issues which rarely pose risk beyond eye strain or carpal tunnel syndrome. But the work mariners perform to execute the task we’re hired to accomplish, i.e., the physical movement of cargo, often is more exacting and risky. Waterborne crises differ significantly from landside mishaps. Thus, the law takes cognizance of the ordeals seamen face on those occasions when their demanding work becomes perilous. The special treatment the law affords vessel skippers whose actions during crisis might seem negligent is known as the in extremis doctrine.

A nice little catchphrase, enunciated in numerous court decisions, sums up the in extremis doctrine: "the decisions of a captain are to be leniently judged when his or her vessel is put in sudden peril through no fault of its own." More than just a "hindsight is 20-20" type of clemency, this doctrine takes into account the true circumstances of an imminent catastrophe at sea. It mandates that when facing such circumstances, no one, not even the saltiest master with decades of oceangoing experience, should be gauged as if he were deciding where to place a flower pot.

The U.S. Court of Appeals for the Sixth Circuit, reviewing a decision issued by the federal district court for the Eastern District of Michigan, recently took a look at a circumstance suggesting an in extremis doctrine application. In that instance, 700-foot freighter M/V H. Lee White, laden with 67 million pounds of ore, apparently did all it was supposed to do to have a tender open the Grosse Ile Toll Bridge (over the Detroit River). As the White approached and the bridge remained closed, the vessel’s captain had less and less time to consider his options. Emergency whistles and radio calls were to no avail.

The vessel’s captain worked with a tug boat to slam on brakes, but that entailed swinging the White’s bow to port, which pointed the vessel to a stationary point of the bridge. A ship hauling that much weight doesn’t stop on a dime.

Only four minutes before impact did the bridge begin to open. The skipper made a call: he dropped his stern anchor, but not the one on his port bow. Sure enough, the White smashed into the bridge, causing its owner to suffer extensive monetary damages.

Even though the tender was clearly to blame for the lion’s share of his boss’s damages, the bridge’s owner sued the White and its operator, alleging the vessel was at least partially to blame for the collision. The law will hold someone liable for a portion of a monetary loss if that someone is in some measure responsible for it.

The bridge owner argued that the captain’s explanation for his actions made no sense. When asked why he lowered the stern anchor, the captain explained he was trying to stop the ship. When asked why he didn’t lower the forward anchor, he claimed that doing so would have nixed any chance of the ship passing through the opening bridge. But you can’t have it both ways, argued the bridge owner, and the captain was negligent by trying to do so.

Here’s where the in extremis doctrine came into play. Anyone realizes, sitting in the cozy comfort of an office, that you can’t hope to stop a ship and have it pass through an opening bridge in one maneuver. But should the White’s captain be excused in light of the extreme circumstances? After all, it wasn’t his fault the bridge didn’t open on time, creating the problem in the first place. The law says that a ship has the right to rely on a bridge opening if it gives appropriate notice.

The federal judge sitting in the district court thought so, and exonerated the captain for failing to drop both anchors. But much to the captain’s surprise, the Court of Appeals reversed the lower court, and ruled the in extremis doctrine was inapplicable. Four minutes, ruled the court, was plenty of time for the skipper to get his ship together. Dropping both anchors should have been an obvious step, and one that might have prevented the accident.

As you can see from this case, the in extremis doctrine is a subjective concept, much like other standards applied in negligence liability. A balance must be struck between the legal requirements we impose on vessel masters, and the realistic circumstances of crises at sea. Four minutes was too long for the Sixth Circuit, but was it enough time for the White’s master to collect his thoughts?

Ref: Grosse Ile Bridge Company v. American Steamship Company, 2002 WL 31005914 (6th Cir. (Mich.) 2002).