Chesley F. Crosbie, Q.C. Ches Crosbie Barristers St. John s, NL APTLA, November 2011

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1 Chesley F. Crosbie, Q.C. Ches Crosbie Barristers St. John s, NL APTLA, November 2011

2 At a conference in Toronto in 2002, the American Bar Association held a day-long mock trial of a lawsuit arising from the Titanic sinking in The audience was the jury. O.J. Simpson lawyer Johnny Cochrane s opening statement: If you design or build a boat, it must be able to stay afloat. 2

3 Counsel for shipbuilder Harland &Wolff responded that the great ship was a state-of-the-art masterpiece, a ship of dreams, which her captain drove right into an iceberg. 3

4 Counsel for the owner/operator White Star Lines relied on the black ice defence. (Really!) And statutory limitation of liability This leads to the question 4

5 If you build a boat, the boat must float or must it? The band played on, but how did the lawsuit play out? And would civil justice be any kinder today, some 100 years after the largest man-made moving object on earth grazed an iceberg south of Cape Race, sinking forever into the pages of myth and history? You be the judge and jury! 5

6 Long ago and far away, somewhere on planet earth 6

7 7

8 FACTS NOT IN DISPUTE largest and most luxurious ocean liner of its day largest man-made moving object ever created touted by owners and nautical journals as unsinkable received numerous warnings of ice ahead struck an iceberg 600 kilometers south of Newfoundland on maiden voyage from Southampton, England to New York sank at 2:20 AM on April 15, 1912, 2 hours 40 minutes later 8

9 Ship Characteristics Length: 269 m Service speed: 21 Knots Top speed: 23 Knots Crew: 891 Passengers: 2,656 Total certified complement: 3,547 Total complement, maiden voyage: 2,201 Survivors: 712 Lives lost: 1,517 9

10 Lifeboats air and water temperatures below freezing 16 wooden boats plus 4 collapsibles builder recommended 48 space enough for 1,178 of 2,201 on board, or just over half the complement for the voyage 1,023 people were without means of escape 10

11 Today: Too Big to Fail? Name: Allure of the Seas Owner: Royal Caribbean International Maiden voyage: 1 December 2010 Length: 360 m Speed: 22.6 Knots Crew: 2,384 Passengers: 6,300 Cost: $1.2 billion 11

12 12

13 37 Seconds 500 yards 13

14 Navigation Failure Titanic received six wireless warnings from other vessels of ice ahead the night was clear and calm Capt. Smith steamed nearly full speed ahead 14

15 Why? Capt. Smith was following general practice Believed iceberg could be seen in time to avoid Had limited knowledge of handling characteristics Thought of wireless as novelty, not as continuous navigational aide 15

16 C.Q.D. (S.O.S.) 16

17 Emergency Response Failure Capt. Smith waited 20 minutes before giving order to take to boats only Smith, Andrews (designer) and Ismay (White Star chairman) knew vessel was going down passengers preferred the comfort and perceived safety of the ship few were trained in launching the boats lack of urgency led officers to launch many boats half full 17

18 FIND OUT WHAT HAPPENED TO THAT SHIP PIRRIE Cable from Harland & Wolff chairman to chief designer upon hearing of Titanic s loss 18

19 Design Failure: Archives Ismay turned down builder s suggestion for 48 boats rather than 16 Ismay insisted 1¼ hull plates be scaled back to 1 with thinner rivets Harland & Wolff doubted Titanic strong enough for stresses of normal service sister ships later fitted with double hulls not to protect against collision but to stiffen builder calculated 80% chance Titanic broke before sinking not disclosed to inquiry 19

20 Breakup and Sinking 20

21 Regulatory Failure oversight was outstripped by rapid increase in size of ships attitude was that lifeboats were only needed to ferry passengers between ships regulator more interested in prosperity of British shipping than in safety 21

22 Rescue Failure 12:35 Carpathia received wireless distress signal immediately made for Titanic s position full speed through ice 58 miles away and an estimated 4 hours to arrive California miles away stopped in field ice with the wireless off Captain informed of eight distress rockets but took no action until daylight 22

23 Women and Children First 23

24 Women and Children First September 1854 two passenger laden ships collided in heavy fog near Cape Race 350 lost at sea including 80 women and children 84 men survived, but no women or children 24

25 Inquiries Sen. Smith enquiry / Board of Trade enquiry concurred Capt. Smith drove too fast through ice, no proper lookout, and abandonment poorly conducted both enquiries focussed on obvious operational errors design errors less obvious and politically awkward accepted ship sank in one piece 25

26 26

27 Safety Improvements SOLAS lifeboat space for all lifeboat drills full-time radio watch North Atlantic ice patrol design changes, eg. watertight bulkheads to seal Art. 38: ice reported at night, moderate speed or alter course well clear of danger zone 27

28 U.S. Lawsuits claims for loss of life and property totalled $16 million or $375 million in today s dollars extremely wealthy Astor, Widener, Guggenheim and Strauss families filed no claims owner sought a declaration under the U.S. Limitation of Shipowners Liability Act limiting liability to $91,800 U.S. Supreme Court decided could apply 28

29 U.S. Lawsuits all U.S. claims were consolidated and settled during a bench trial claimants settled for an amount 6 times limitation claimed by owner, or $664,000 settlement totalled 4% of the amount claimed 29

30 English Lawsuits limitation of liability $3.75 million BLACK ICE DEFENCE! TICKET DEFENCE! liability for excessive speed only: jury lawsuits contributed little to understanding of disaster 30

31 31

32 Ismay s Escape: The Captain stood where a captain should For the law of the sea is grim The owner romped err his ship was swamped And no law bothered him 32

33 Collision Consensus 33

34 Marine Liability Today (Canada) Marine Liability Act, S.C. 2001, c. 6 incorporates Athens Convention, 1974 liability is for personal injury and loss of luggage where due to fault or neglect if shipwreck or collision, liability is presumed damages are recoverable in accordance with provincial law 34

35 Modern Passenger Claims personal injury and wrongful death psychological distress 35

36 Mental Distress in Contract Fidler, 2006 SCC: whether an important object of the contract was to confer a psychological benefit (pleasure, mental security) recognizable psychiatric condition not required 36

37 Bad News for Distress Claimants tort-like liability (fault or neglect) imported by statute in tort, requirement of recognizable psychiatric illness applies (Mustapha, Kotai, Healey) Kotai v. Queen of the North (Ship), 2009 BCSC

38 Implication because claim based in tort-like analysis, no diagnosis = no personal injury = no claim 38

39 The Band Played On 39

40 And On 40

41 How The Lawsuit Played Out White Star: bandsmen were second class passengers: Workers Compensation denied Insurers: bandsmen were independent contractors not workmen covered by the policy: insurance denied Families of bandsmen went to court in England and judge threw case out 41

42 Musicians union appealed to White Star s sense of moral responsibility: They were cut off in the prime of life while performing an act of heroism that stirred the whole world to its depths moral appeal denied! charity stepped in Titanic Relief Fund decided to treat the musicians as if they were members of the crew 42

43 Justice Then lawsuits added little to understanding of the disaster or to improvements to safety due to social attitudes, the wealthiest families with the largest claims did not sue due to illiteracy and lack of knowledge and resources, most third class passengers did not sue liability caps limited Titanic claims to a small fraction of the loss the most heroic victims the bandsmen got nothing 43

44 no general law of negligence (Donaghue v. Stevenson) Harland & Wolff complicity went unrevealed Ismay s complicity went unrevealed no concept that potential resucer could be liable for doing nothing no concept of regulatory negligence presumption of liability for ship hitting stationary object came later 44

45 Justice Now? onerous limitation of liability clauses in passenger contracts (ousted by Marine Liability Act) arbitration (anti-class action) clauses mental distress claims based on breach of contract may be excluded by statute personal injury and wrongful death claims may be severely capped in law (in Canada about $300,000) 45

46 Justice Now! rights awareness is higher, barriers to access lower unified concept of negligence: neighbour principle secrets harder to keep in information age less respect for defence of general practice class action makes the playing field more even good facts make good law 46

47 sue for mental distress, alternatively for purchase price sue builder Harland & Wolff for design flaws sue Californian for rescue non-feasance sue the regulator prove willful or reckless conduct, overcome limitations punitive damages has rational basis 47

48 Collision: Cameron Consensus Version,

49 49

50 State-of-the-Art Safety? Great Eastern 50 years before ships got less safe double bottom, but no double hull thin hull and skinny rivets watertight bulkheads were transverse only, extended only 10 feet above waterline, and were not capped too few lifeboats design safety for giant ships unproven 50

51 Fallibility: End of an Age 51

52 And yet the legal question remains: If you design or build a boat, it must be able to stay afloat. Johnny Cochrane Or must it? 52

53 The final verdict goes to the musicians 53

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