Liability Exposure for Hydrographic Surveyors
Peter Clark www.navlaw.com
Historically, hydrographic surveyors have played an important role in the advancement of maritime commerce. This group of skilled professionals is called upon by the shipping industry to perform precise surveys in order to publish nautical charts and descriptive material for navigational purposes. A concern for the safe navigation of vessels has been the driving force for much of their work. This is especially true today, when passenger vessels and merchant cargo ships are becoming larger and drawing deeper drafts. They are now more susceptible to grounding damage.
DeKerchove’s International Maritime Dictionary defines “hydrographic survey” as the science and process of determining the contour of coasts, harbors, entrance of rivers, the position and distances of objects on the shore line, of islands, rocks, shoals, pinnacles, the depth of water over certain areas, and of obtaining particulars as to the nature of the sea bottom, the purpose of which is the production of charts for use in navigation.
Hydrographic surveyors’ skills are continuously evaluated by those who use their services. Relatively simple mistakes can have catastrophic consequences when navigators depend on charts for accurate representations. A chart is the most important aid in navigation that exists in commercial shipping. All merchant ships are required to navigate with the aid of nautical charts. The captain has the responsibility of maintaining current and accurate charts on his vessel. The failure to update charts may render a vessel unseaworthy. A mariner navigating on an outdated chart is courting disaster. Indeed, a failure to have current nautical charts may constitute negligence on the part of the navigator. Should a navigational accident occur, the chart in use at the time of the casualty takes on legal significance. It becomes a critical record for reconstructing events leading to the incident and for assessing potential liability.
Hydrographers’ professional liability
The world has become more litigious, and litigation against all categories of professionals is now common. Regardless of how skilled hydrographers maybe, they occasionally make mistakes. If losses result from their errors, they may find themselves defending their reputations in lawsuits.
The source of the hydrographer’s professional liability exposure is drawn from two areas of law: liability in contract and liability in tort. Contract actions are based upon the failure to properly provide the services called for in the contract or for a specific breach of a contract term. The party who has suffered damages as a result of a contract breach will sue the breaching party in a contract action.
If there is no contract between the hydrographer and the claimant, the hydrographer can still owe a duty of care to a third party injured by its negligence based upon tort liability principles. In tort actions, the claimant must prove the hydrographer had a duty to conform to all of the following: a high standard conduct for its protection, a breach of that duty, causation, foreseeability, and damages. All elements must be proven or the tort action fails. The potential exposure of a hydrographer to all foreseeable claimants damaged by its negligence could be extensive. That is why prudent hydrographers purchase insurance.
Hydrography and sovereign immunity
Hydrographic services in most countries are carried out by government hydrographic offices. Nautical charts issued by these agencies are considered “official charts” in contrast to those produced by commercial chart makers. Unfortunately, some of the hydrographic data on official charts may be dated and unreliable.
When government agencies cause harm to individuals through errors or neglect, they may not always be susceptible to suit because of the doctrine of sovereign immunity. This doctrine prevents a government from being sued for its misdeeds without its consent. The doctrine stems from early English common law declaring the king could not do wrong. Today, many nations have narrowed their immunity in commercial matters by legislation.
In the United States, Congress has mandated that the federal government, through the National Oceanic and Atmospheric Administration (NOAA), collect and disseminate hydrographic data for the safe navigation of maritime commerce. However, the federal government has sovereign immunity and cannot be sued without the consent of Congress. In 1946, Congress enacted the Federal Tort Claims Act (FTCA) to impose liability against the government for acts of negligence. However, the FTCA provides that the act does not apply to any claim based on the failure to exercise or perform a discretionary function or duty properly. Congress failed to define “discretion”, which has left the statutory interpretation of this ambiguous phrase to courts. To complicate matters when negligence is alleged against the federal government with respect to inaccurate charts, suit must be brought under the Suits in Admiralty Act (SAA) which does not contain a discretionay function exception. Some courts have read the discretionary function defence of the FTCA into the SAA. Others have not.
The discretionary function exception is a difficult area of law to analyse because it challenges typical notions of liability. Under the discretionary function analysis, liability is based, not upon negligence, but upon questions of public policy in order to prevent judicial second-guessing of legislative decisions. Attempting to draw a bright line between discretionary and non discretionary government acts often leads courts to seemingly illogical distinctions.
It should also be noted that in 1994 Congress passed legislation granting sovereign immunity to the then U.S Defence Mapping Agency for any inaccuracies in their charts. Indeed, the legislation was even applied retroactively to dismiss a ship owner’s action in Hyundai Merchant Marine Co. v. U.S., against the government.
Commercial Hydrography in the United States
Hydrographic services in the United States are mainly carried by the federal government. This is not surprising because Congress has placed the responsibility of dissemination information for safe navigation on various government agencies. However, there are commercially published charts specifically tailored for private use by please craft and the yachting industry. Dock owners concerned with unsafe berth claims by commercial vessels may also have private hydrographic surveys performed. Likewise, universities sometimes perform hydrographic surveys to collect scientific data that is not intended for navigational purposes. The same is true for offshore drilling sites. Commercial hydrographers will not, of course, be granted sovereign immunity for charting errors. However, they may utilize disclaimers or limitation clauses in their contracts if they are not against public policy. Protection afforded by disclaimers may extend to ordinary negligence, not gross negligence.
When limitation clauses are reasonable and result from equal bargaining power, courts will usually permit them to stand. It should be emphasized that limitation or disclaimer clauses will be inapplicable against injured third parties not in privity with the commercials hydrographer.
Aside from the sovereign immunity defense, when groundings occur the primary issue concerns whether the hydrographer was negligent in publishing its chart or the navigator’s actions were the proximate cause of the casualty. The grounding of the passenger vessel Queen Elizabeth II (“QE2”) in the summer of 1992 off Vineyard Sound illustrates this point.
The QE2 struck bottom in an area marked on a government chart as having at least a depth of 39 feet. The rocks struck were 33 feet below the surface. The trial court found that the QE2, which draws 32 feet when stationary, must draw over 40 feet when under full power due to the hydrodynamic effect of squatting. The court then found the error on the chart was not the proximate cause of the grounding because course changes were not made in reliance upon the chart. Futhermore, a correctly marked chart would not have bought the shallow area to the navigator’s attention in time to avoid the grounding. The appeals court affirmed the findings and refused to entertain the vessel owner’s petition for rehearing.
Other U.S courts have also focused on proximate cause when deciding grounding cases. In 2003 the appeals court in Limar v. U.S affirmed that the government was not liable for a vessel grounding when its chart showed greater depth than existed in the dredged channel to Boston Harbor. It was unreasonable for mariners to rely solely on the chart given the constant possibility that silting or other events may alter the depth of a harbor at any given time.
In another case, the passenger ship Antilles grounded in 1971 on an uncharted reef in the Grenadine Islands due to navigating solely with current editions of French and American charts, both of which were based on sounding made more than 100 years before. In a limitation proceeding the U.S. District Court of Puerto Rico found that the navigation undertaken was in complete reliance on this chart. Negligent navigation was the proximate cause of the grounding. A similar result was reached in 1975 by the appeals court in Empire Transport v. U.S.
Obtaining particulars as to the nature of the sea bottom are also prime concerns to hydrographers. Ships’ navigators often rely on hydrographic charts when setting their anchors. The proximate cause concerns associated with grounding incidents are also applicable to anchor fouling mishaps.
In De Bardeleben Marine Corp. v. U.S. an appeals court in 1971 held a tug boat navigator negligent and the government hydrographer not liable when an anchor fouled a submerged natural gas pipeline, not shown on an obsolete chart aboard the tug. The pipe location, however, had been subsequently noted by the government in its weekly Notice to Mariners. The court held that the government hydrographers’ duty to produce an accurate chart ceased at the time at which a prudent navigator would have reasonably received a Notice to Mariner advising of the publication of a revised chart correctly portraying the condition of the bottom. The case illustrates how a hydrographer can be exonerated from liability when a navigator is negligent in using an obsolete chart.
Hydrographers are professionals and must strive for perfection in their chosen field. The maritime community expects nothing less. While hydrographers may incur liability for failing to carry out their duties in a non-negligent fashion, they should remember that each grounding incident is unique on its facts. The hydrographer’s negligence may not be the proximate cause of the casualty. The navigator must always act in a prudent manner. His failure to do so may relieve a careless hydrographer from liability.