We don’t know what happened to the Dali to make her demolish the Francis Scott Key Bridge on her way out from Baltimore Port down the Patapsco River en route for Sri Lanka, though there are indications that she lost power a few minutes before impact. We will find out more in due course, since the VDR we understand has been recovered intact. The immediate impact on lives is tragic: we know six are unaccounted for, and it may be more. (Unfortunately your survival chances when pitched at dead of night into water at about 6 degrees Centigrade aren’t high.) Clearing up the mess and reopening Baltimore Harbour may take a fair while, as no doubt will discharging the Dali’s cargo and repairing her once the US authorities have finished their investigations.
There have been some gloomy predictions of problems to supply chains and even commodity price spikes as a result of this, though they may be overblown: Baltimore is only the US’s 14th largest port, and one suspects that a good deal of the LNG and Appalachian coal that form its most important exports can be diverted to other outlets with a little effort.
The legal issues are going to be complex, and will take a good while to sort out.
One question is where litigation against the vessel’s Singaporean owners (who had chartered her to Maersk) will proceed, following her arrest or threat thereof in Maryland (which is a foregone conclusion). There are advantages to suing in the US federal courts, and one suspects this is where much of the immediate lawfare will actually happen. The US is, after all, the place of the disaster; the plaintiffs, in the shape of the owners of the bridge and those killed or injured, are American or US residents; and damages may well be generous.
There are of course downsides. One is that for large but not-entirely-new vessels like the Dali (she was built in 2015 and weighs in at a bit over 95,000 GRT), the US limitation figure, based on the value of the vessel and her freight under 46 USC App 183, is likely to be relatively low compared to the LLMC figure, based on tonnage. True, US limitation is relatively easy to break, requiring effectively just a showing of clear personal fault in owners. On the other hand, there is little to stop the Dali’s owners trying to obtain a limitation decree in a LLMC + Protocol state, where the limitation figure, though much higher, is all but unbreakable; furthermore, if they succeed, such a decree may make enforcement of a big US judgment based on full liability more difficult.
But even these factors may be less of a protection than they look. If the owners wish to continue trading in the US, and their parent Mitsui wants to avoid severe reputational damage there, they may have to take steps to make sure a US award is paid.
On fault, it’s early days: we don’t know. But it may be difficult for the owners and their P&I Club to wriggle out. In the US they will face the disadvantage of the Oregon rule (based on The Oregon, 158 U.S. 186 (1895)), presuming fault in a moving vessel that hits a stationary object; and even if there was an unexpected loss of power, attorneys are no doubt already poring minutely over both the bridge and engine room logs and the the owners’ records of maintenance, preparedness, crew training and the rest to pick out some element of fault. Not only will this exercise give them an excellent chance of finding negligence: the latter aspects of it will also provide a decent prospect, at least in the US context, for overcoming any limitation defence.
What of cargo, charter and insurance claims, GA and the like? Again, we don’t know. Many of these, however, may be governed by English law and end up before London arbitrators or the Commercial Court.
One thing is certain. We haven’t heard the last of this. In a few years’ time, who knows? The case named The Dali may be on every Admiralty student’s lips. For the moment all we can do is wait and see.
