Swept away: should courts retain a recklessness standard in assessing rescuer injury claims under the maritime rescue doctrine?

Author:Acciaioli, Anthony
 
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INTRODUCTION

The Roman poet Ovid once remarked that "the shipwrecked man shrinks even from calm waters." (1) Indeed, humanity has long respected and feared the expansive reaches and tremendous power of Earth's waters. Ovid's poignant remark alludes to the sea's myriad dangers and its ability to cause injury or death to those who venture out upon it. While powerful hurricanes, extratropical cyclones, and high surf constitute obvious maritime hazards, (2) secondary hazards such as mechanical failure (3) and social hazards such as piracy (4) pose significant danger to life and property. Despite the sea's array of dangers, persons of every level of maritime experience venture out on its waters to work, conduct research, and partake in recreational activity. Naturally, with such a diverse group of individuals engaged in maritime activity, accidents are bound to occur along with a subsequent threat to life and limb. Such imperiled individuals often find themselves in need of rescue to avoid serious injury or even death.

While American tort law has refrained from judicially imposing a universal duty to rescue upon third parties, (5) maritime rescues commonly take place on a variety of scales in a wide range of circumstances. Large, governmental agencies such as the United States Coast Guard often have statutorily mandated missions, which impel them to engage in numerous, sometimes highly technical rescue operations on a frequent basis. (6) In 2014 alone, the Coast Guard responded to 17,508 cases, saving 3443 lives. (7) While the Coast Guard provides its rescuers with highly specialized training in addition to significant resources, (8) many maritime rescue operations are unofficially and voluntarily initiated by third-party bystanders with little in the way of formal education or training. A simple example of such an unofficial rescue operation might be a nearby individual who renders aid to a family, friend, or stranger in distress. (9) However, just because a rescuer lacks a mandate to engage in rescue operations does not mean he or she will be involved exclusively in small-scale, local rescue operations. For example, in 2013, thirty-one-year-old American entrepreneur and millionaire Christopher Catrambone launched a three-week rescue operation aimed at aiding migrants attempting to flee collapsing dictatorial regimes in Africa and the Middle East. (10) Given the rescuers' varying degrees of education, experience, and skill, it is inevitable that some rescuers will fail to perform their rescues correctly or suffer their own injuries in the process of rescuing those in peril.

Given that a rescuer may suffer a potentially serious or even fatal injury in carrying out a rescue mission, it is necessary to ask what if any recourse is available to provide an injured rescuer or a deceased rescuer's estate with adequate redress. Hoping to incentivize rescue operations by third-party bystanders (11) amidst a backdrop lacking a universal duty to rescue, courts introduced the rescue doctrine to provide a safety net to would-be rescuers. With roots extending back to the nineteenth century, the rescue doctrine provides access to redress for injured rescuers by refusing to "impute negligence to an effort to preserve [human life], unless made under such circumstances as to constitute rashness." (12) Under the rescue doctrine, a "causal nexus" is established between "the tortfeasor's negligent conduct [and] the rescuer's injuries." (13) Thus, unless a rescuer was rash, as evidenced by "wanton or reckless" (14) conduct, he or she would not be barred from obtaining recovery for his or her injuries from the original tortfeasor owing to a lack of causation. (15) Note, though, the rescue doctrine applies only in cases where peril is created by another's negligent act, and not in cases involving an accident or act of nature. (16) Additionally, the rescue doctrine only applies when there is "a risk of imminent peril to one other than the rescuer." (17) Thus, it is not a failsafe mechanism for rescuer redress.

In the maritime context, the Fourth, Fifth, and Ninth (18) Circuits have repeatedly applied the rescue doctrine along with its "wanton or reckless" standard, reasoning that "of all branches of jurisprudence, the admiralty must be the one most hospitable to the impulses of man and law to save life and limb and property." (19) However, in Barlow v. Liberty Maritime Carp., the Second Circuit explicidy declined to adopt the maritime rescue doctrine and its associated "wanton or reckless" standard in assessing whether third-mate George Barlow could recover for injuries he incurred during an attempt to prevent the Liberty Sun vessel from detaching from its moorings. (20) Instead, the Barlow court reasoned that George Barlow should be held to the standard of a "reasonable seaman" or "reasonable mariner" under the circumstances, thus declining to apply the maritime rescue doctrine. (21) While the "reasonable seaman" standard "recogniz[es] that mariners may have particular skills for responding to emergencies," (22) it is explicidy and clearly distinguished from the traditional maritime rescue doctrine thus leading to a circuit split between the Second Circuit and the Fourth, Fifth, and Ninth Circuits. (23)

This Note asserts that courts should continue to apply the traditional maritime rescue doctrine along with its "wanton or reckless" standard when assessing whether a rescuer injured during a maritime rescue attempt stemming from a negligent tortfeasor's conduct may recover for his or her injuries. Part I will analyze the arc of rescue doctrine-related case law surrounding the aforementioned circuit split, scrutinizing how the rescue doctrine has been impacted by the larger-scale paradigm shift in apportioning liability from contributory negligence to comparative negligence. Part II will discuss the circuit split directly and argue that in light of admiralty law's historical and statutory commitment to encouraging nearby seafarers to aid those in peril despite no broad, universal tort law duty to rescue, it is consistent and appropriate to preserve the traditional maritime rescue doctrine. Finally, Part III will discuss important policy considerations favoring a "wanton or reckless" standard of care in the maritime rescue context, including both incentivizing life-saving rescue attempts and properly allocating costs under principles of law and economics.

  1. JUDICIAL DEVELOPMENT OF THE RESCUE DOCTRINE: A CASE LAW STUDY

    In beginning, it is important to delineate the rescue doctrine's precise function amidst the broader tort law landscape. While some jurisdictions have enacted Good Samaritan statutes, which may immunize potential rescuers from civil liability arising from negligent rescue attempts, (24) the traditional rescue doctrine is a creature of common law. (25) Also distinguishing it from Good Samaritan statutes is the rescue doctrine's focus not on immunizing rescuers from civil liability arising from injuries done to rescuees as a result of negligent rescue attempts, but rather on providing a potential remedy for a rescuer's own injuries. (26) The doctrine operates on two levels, both of which ensure that an injured rescuer has a legitimate opportunity to recover. Specifically, when a perilous situation results from a tortfeasor's negligent conduct, the rescue doctrine acts to both establish a "causal nexus" between a tortfeasor's negligence and a rescuer's injuries (27) and to allow a rescuer an opportunity to recover in full unless his or her rescue attempt was undertaken "recklessly or rashly." (28)

    Before delving into relevant case law, it is important to note that the common law rescue doctrine arose during a time at which contributory negligence was the prevailing regime under which courts apportioned liability. (29) Under contributory negligence, "[a]n injured plaintiff was unable to recover--and the defendant went unpunished--even if the plaintiffs actions were much less blameworthy than those of the defendant." (30) Thus, as an examination of the case law will reveal, one original impetus underlying judicial development of a rescue doctrine was to provide a sort of escape hatch through which injured rescuers could recover despite bearing a degree of fault for their injuries, wholly barring them from redress under traditional doctrinal principles of contributory negligence. (31) One pivotal question, however, is whether case law suggests that contributory negligence's seminal role in the rescue doctrine's origination renders it redundant in an era marked by a comparative negligence approach to the apportionment of liability. This Part argues that while concerns over contributory negligence undoubtedly catalyzed judicial development of a rescue doctrine, early case law and its progeny evince a more fundamental commitment to developing a distinct tort law carve-out aimed at providing injured rescuers with a liberal opportunity to be made whole in addition to incentivizing bystanders to aid those who are imperiled. As such, this Part claims that a shift from contributory to comparative negligence does not necessarily render a traditional application of the rescue doctrine superfluous because comparative negligence fails to address these fundamental concerns sufficiently.

    1. Rescue Doctrine Case Law in the Era of Contributory Negligence

      One of the earliest formulations of the rescue doctrine is found in Eckert v. Long Island Railroad Co.,32 decided in 1871. In the case, the plaintiff's husband was killed when he ran out onto a set of train tracks to save a small child who was likely to be struck by an incoming, negligently speeding train. (33) In the New York Supreme Court, counsel for the Long Island Railroad contended that the plaintiffs husband negligently and "voluntarily placed himself in peril from which he received the injury," thus precluding his estate from recovering. (34) On appeal, the New York Court of Appeals affirmed...

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