All bark and no bite: a modern evidentiary argument for the retirement of the age-old Pennsylvania rule.

• Author: Wang, Bin

TABLE OF CONTENTS INTRODUCTION I. THE PENNSYLVANIA RULE EXPLAINED A. Birth of the Rule B. Characterization as an "Extra-strength" Morgan Presumption C. The Impact of Reliable Transfer II. A HISTORY OF AVOIDANCE A. Traditional Techniques B. Modern Circumventions 1. Not Finding a Statutory Violation 2. The "Causal Connection" Requirement 3. The Rule and the Brussels Collision Convention of 1910 4. Mutual Application and Non-application III. THE CASE AGAINST THE PENNSYLVANIA RULE CONCLUSION INTRODUCTION

In 1873, the Supreme Court created a new "drastic and unusual presumption" (1) and made it applicable in cases of marine collision. The presumption, now popularly known as the Pennsylvania Rule, (2) allows a proponent of the Rule to place the burden of proof upon an opposing party, when the proponent shows that the opponent was in violation of a statute or regulation designed to prevent marine collisions. This shift of the burden of proof not only encompasses the shift in the burden of production traditional to most presumptions, but also includes a shift of, as well as an increase in, the burden of persuasion. Thus, the alleged statutory violator in a marine collision, the opponent of the Pennsylvania Rule, must show that her violation could not have been a cause of the collision. (3)

In an era when shipwrecks often meant few survivors, the Pennsylvania Rule served an important pragmatic function. The Rule's vitality was justified in that it (1) made for convenient adjudication; (2) allocated the burden of production equitably upon the party who was, in fact, guilty of a statutory infraction; and (3) upheld the proper policy motivations of deterring rule violations and preserving maritime safety. (4) The Rule's effectiveness as a deterrent was particularly understandable when combined with the Divided Damages Rule, which apportioned fault on a none, half, or all basis. (5) In this regard, the Pennsylvania Rule was also often criticized as being harsh and unfair, (6) as the perpetrator of a minor statutory infraction was, nevertheless, at risk of being forced to bear at least half, if not all, of the loss should that party fail to rebut the Pennsylvania Rule's unique presumption.

All of this was changed when the Supreme Court, in 1975, overruled the Divided Damages Rule in favor of a regime of comparative fault. (7) Today, it is said that the Pennsylvania Rule's presumption may happily coexist within such a regime. (8) Nevertheless, this Note contends that despite the Pennsylvania Rule's capability of coexisting within a regime of comparative fault, the Rule should not coexist within such a regime, especially in light of modern technology and recent case law. Part I.A of this Note examines a brief history of the Pennsylvania Rule and the exact 1873 Supreme Court formulation of the Rule. Part I.B digs a little deeper into understanding the Rule and explains why the Rule may be best characterized as an "extra-strength" Morgan presumption. (9) Part I.C takes the Part I.B understanding of the Pennsylvania Rule and examines its interaction with both the Divided Damages Rule and the post-1975 regime of comparative fault. In total, Part I of this Note explains the basis for much of the debate surrounding the Pennsylvania Rule and how the Rule was expected to function in the post-1975 era of comparative fault.

Part II of this Note takes a case study approach to analyzing how modern courts have dealt with the Pennsylvania Rule in light of comparative fault. In particular, Part II notes that judicial avoidance of the Rule's "drastic and unusual presumption" (10) still occurs in many district and circuit courts. In Part II.A, two traditional methods of avoiding the Rule's presumption are outlined. Part II.B.1 shows how some modern courts have tried to avoid the Rule by simply refusing to find a statutory infraction. Part II.B.2 shows how other modern courts have imposed an elevated trigger for the imposition of the Pennsylvania Rule by would-be proponents. Part II.B.3 shows how several courts have realized the "substantive" nature of the presumption and have acted accordingly with regard to analyzing the Rule within an international context. Part II.B.4 concludes by giving examples of occasions when the Pennsylvania Rule is either cancelled out by two litigants imposing it on each other, or simply ignored and not applied by the courts.

Part III of this Note uses the understanding derived from Parts I and II and explains why the Pennsylvania Rule is no more favored by the courts today than it was in the past. By examining the Rule in light of the three driving justifications behind the imposition of presumptions in general, and by keeping in mind that the Rule is much more forceful than an average presumption, Part III argues that the Pennsylvania Rule should be discarded in light of modern circumstances.

Ultimately, this Note argues that the effectiveness of the Pennsylvania Rule has been muted by comparative fault and that the Rule is no longer needed in light of modern technological advancements for determining causative fault. By examining a good sampling of recent case law from across the circuits, this Note's argument is subtly bolstered by modern courts, which have found a number of unique ways to avoid the Rule. This Note indicates that the Rule's presumption is indeed drastic and unprecedented and that it functions more as a substantive rule of law than as a mere procedural rule of evidence. In essence, this Note asserts that it is now no longer efficient, purposeful, or equitable to retain the Pennsylvania Rule. (11)

1. THE PENNSYLVANIA RULE EXPLAINED

   1. Birth of the Rule

      Among students of maritime law, the age-old, judge-made Pennsylvania Rule needs no introduction. (12) Nevertheless, the logical rationale espoused by the Rule did not originate with the Supreme Court's landmark decision in 1873 of the same name. (13) In an 1847 opinion arising from the collision of two steamboats on the Mississippi River north of New Orleans, (14) the Supreme Court foreshadowed the Pennsylvania Rule when it stated: "[I]f ... neglect ... of the law shall be proved to exist when injury shall occur to persons or property, it would throw upon the ... steamboat by whom the law has been disregarded the burden of proof, to show that the injury done was not the consequence of it." (15) Similarly, when a yacht and a schooner collided on New York City's East River in 1863, (16) the Supreme Court's 1868 opinion echoed: "Where fault is shown on the part of the damaging vessel, it is incumbent on her to show that such fault had in no degree the relation of cause and effect to the accident." (17) Then, in 1871, the Supreme Court's opinion regarding an 1865 collision between a brig and a steamer off the coast of New Jersey (18) proclaimed: "Every doubt as to the performance of the duty, and the effect of non-performance, should be resolved against the vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary." (19)

      Two years later, in 1873, the Supreme Court issued what is now known as the Pennsylvania Rule in its popular form. (20) The case arose from a collision between the British bark Mary Troop and the British steamer Pennsylvania. (21) The June 1869 collision occurred at ten o'clock in the morning in a dense fog on the high seas, approximately 200 miles from Sandy Hook, New Jersey. (22) Despite the fact that the Mary Troop was moving at only one mile per hour as the Pennsylvania bore down on her at seven knots per hour, (23) the evidence showed that the Mary Troop sounded only a bell, even though she was under a statutory obligation to sound a foghorn while underway in fog. (24) Thus, when the district court condemned the Pennsylvania for the entire loss and the circuit court affirmed, (25) the Supreme Court reversed and issued the formulation now renowned as the Pennsylvania Rule:

      [W]hen ... a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case, the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. (26) B. Characterization as an "Extra-strength" Morgan Presumption

      The Pennsylvania Rule contains portions that are clearly understood and portions that have been heavily debated. Generally, commentators agree that the Rule is applicable only when there is a violation of a statute intended to prevent collisions and injuries, the types of which have actually occurred as a result of the statutory violation. (27) Stated more clearly, the Rule applies when the following criteria are met: "(1) proof by a preponderance of the evidence of [a] violation of a statute or regulation that imposes a mandatory duty; (2) the statute or regulation must involve marine safety or navigation; and (3) the injury suffered must be of a nature that the statute or regulation was intended to prevent." (28)

      Hence, an example formulation may be examined. First, assume that a collision occurs between vessel A and vessel B in fog. Further, assume a statute exists stating that vessels "shall sound a foghorn in order to prevent marine collisions in fog." Now, assume that vessel B did not sound a foghorn. Thus, the Pennsylvania Rule states that once B is shown to have not sounded a foghorn by a preponderance of the evidence in violation of the statute, the burden is upon B to show that B's failure to sound the foghorn "not merely ... might not have been one of the causes [of the collision], or that it probably was not [one of the causes of the collision], but that it could not have been [one of the causes of the collision]." (29)

      This "might not have been ... probably was not ... could not have been" language...