The Oregon Rule and Presumption of Fault

Under the Oregon Rule, a vessel under power that strikes a fixed object is presumptively at fault.[1] This presumption is closely related to the doctrine of res ipsa loquitor, which creates a rebuttable presumption of fault on the part of the person controlling the instrumentality.[2] Moreover, these rules shift the burden of production and persuasion to the offending party.[3]

There are four (4) circumstances in which the general rule of presuming fault of the moving vessel does not apply:

  1. The stationary object must be visible;

  2. Where contact between a vessel and a pier, dolphin or other stationary object occurred during “normal” mooring procedures, and the object should have been able to withstand the handling of the vessel during normal procedures, without damages;

  3. Where an object, such as a draw or swing bridge, has an obligation to keep the waterway open; or

  4. Where the stationary vessel or other object was also guilty of some statutory or other fault. [4]


Further, if none of the four circumstances are met, the moving vessel may rebut the presumption by demonstrating by a preponderance of the evidence, (1) the allision was the fault of the stationary object, (2) the moving vessel acted with reasonable care, or (3) the allision was an unavoidable accident.[5]

A moving vessel may rebut the presumption of fault under the first premise in situations, which essentially amount to contributory negligence.[6] This can occur when a drifting vessel was negligently and improperly moored or when the stationary vessel or object contributed to the allision via improper placement of a navigational buoy.[7]  A party may also rebut the presumption of fault under the second basis by establishing it was not negligent when the allision occurred.[8]  This is based upon “(1) general concepts of prudent seamanship and reasonable care; (2) statutory and regulatory rules…; and (3) recognized customs and usages.”[9]  The final premise under which a party may attempt rebut the presumption of fault is by proving the accident was unavoidable.[10]  “If the drifting or moving vessel offers as a defense that the collision was an unavoidable accident or vis major, the burden of proving inevitable accident or Act of God rests heavily upon the vessel asserting such defense.”[11]  The party must show that the accident could not have been prevented by “human skill and precaution and a proper display of nautical skills.”[12]  This route to proving the presumption of fault is the most difficult to prove, because it requires establishing the existence of a superseding act, which can free the moving vessel from all liability.[13]

Although the factors referenced above could rebut the presumption of fault for the moving vessel, generally the presumption of fault is not rebutted.  In City of Chicago v. M/V Morgan, a tugboat named the M/V Morgan struck a city-owned bridge, while it was pushing four barges.[14]  The M/V Morgan struck the recessed slot on the bridge, which contained electrical wires.[15]  The impact severed the electrical wires, and eight wires had to be replaced.[16]  M/V Morgan argued the Oregon Rule is unnecessary and inapplicable, but should the court find the Oregon Rule as necessary and applicable, the presumption of fault against them should be rebutted.[17]  When analyzing the first factor of the Oregon Rule, M/V Morgan claimed the City of Chicago was at fault because their “decision to not replace the wooden fender over the recessed slot was a proximate cause of the allision.”[18]  The Court of Appeals held the first factor of the Oregon Rule does not rebut the presumption of fault and reasoned “the City's decision not to replace the fender over the recessed slot was not the sole cause of the damage to the electrical cables,” because the M/V Morgan’s crew unreasonably and negligently responded to the brake/winch failure which caused the unusual angular impact to the recessed slot.[19]

Further, the Court of Appeals held this second factor of the Oregon Rule was unsuccessful because the M/V Morgan did not act with reasonable care when the crew did not respond reasonably to the break/winch failure, when the crew was inexperienced and not diligent in inspecting the vessel’s winches, and when the Captain’s decisions for preventing the allision were unreasonable and ineffective.[20]

Lastly, the M/V Morgan claimed the allision was an unavoidable accident.[21] The Court of Appeals held the third factor of the Oregon rule applied and the allision was not the result of an unavoidable accident because “the M/V Morgan could have prevented the accident by properly handling the vessel after the mechanical failure.”[22]

Conclusion

The Oregon Rule provides, when a moving vessel allides with a stationary vessel or other fixed objects, the moving vessel is presumed to be at fault for the damages.  However, applying the Oregon Rule does not replace the general negligence determination, and rebutting the presumption does not necessarily exonerate the vessel from all liability.  Although applying the Oregon Rule does not remove general negligence, a moving vessel can overcome the presumption of fault by demonstrating the allision was the fault of the stationary object, the moving vessel acted with reasonable care, or the allision was an unavoidable accident.


[1] The Oregon, 158 U.S. 186, 197 (1895). 

[2] Combo Mar., Inc. v. U.S. United Bulk Terminal, LLC, 615 F.3d 599, 604 (5th Cir. 2010).  

[3] Id.

[4] Charles M. Davis, Maritime Law Deskbook 95 (2005).

[5] Combo Mar., Inc. 615 F.3d at 605.

[6] Id.

[7] Id.

[8] Id. at 571.

[9] Id. at 606.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] City of Chicago v. M/V Morgan, 375 F.3d 563, 570 (7th Cir. 2004).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 574.

[20] Id. at 575-576.

[21] Id.

[22] Id. at 574-577.

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