EXCHANGE
Vol. 16 No. 4
December 2000
ABYC Standards in Maritime Litigation
By David Farrell, Jr.
"Setting Standards for Safer Boating" is the mantra of the American Boat & Yacht Council (ABYC). As any marine surveyor, repairer, or builder worth his salt knows, ABYC is a non-profit organization that develops and publishes standards for "the design, construction, equipage, and maintenance of small craft."
As stated in the ABYC Preface, though, its "standards and recommended practices are advisory only; their use is entirely voluntary." How important are ABYC standards, then, in the context of maritime litigation? In a recent decision issued by the United States District Court for the Eastern District of Virginia, affirmed by the Fourth Circuit Court of Appeals, they were vital.
In Pappas v. Potomac Party Cruises, Inc., 2000 U.S. App. LEXIS 12443, 215 F.3d 1320 (4th Cir. 2000), plaintiff Pappas worked as a waiter aboard The Dandy, a small passenger vessel that provides dinner and dancing while navigating the Potomac River. Two sets of steps, one at the stern, the other at the bow, lead from The Dandy's dining area to its galley. While walking down the stern steps during a lunch cruise, Pappas slipped and fell to the galley deck, allegedly injuring his lower back. He sued the defendant vessel owner for Jones Act negligence as well as the vessel's unseaworthiness.
The case was tried to a judge without a jury. Each side called one expert witness to address the adequacy of the tread on the stern steps. The plaintiff's expert opined that the tread was unacceptable because it was not "nonskid," as called for by many government standards. In contrast, the defendant's expert testified that the tread was more than adequate because its "width of 12 inches far exceeded the 5-inch minimum recommended by the American Boat and Yacht Council."
Both expert witnesses conceded that the standards they relied on were not binding as a matter of law. The plaintiff's expert admitted, for example, that the building code standards he relied on apply to buildings rather than ships and that MARAD (Maritime Administration) guideline specifications for merchant ship construction were inapplicable because The Dandy was not built under a maritime subsidy. Defendant's expert also acknowledged that the ABYC standards he relied on were not mandatory. But as a former Coast Guard inspector, he further testified that the ABYC standards, though voluntary, provide "the standard that would generally be used by the Coast Guard" when reviewing small passenger vessels.
The trial judge held the defendant vessel owner not liable. He specifically found that defendant's expert, who relied on ABYC standards, was more persuasive than plaintiff's expert, who relied "on standards not applicable to vessels such as The Dandy."
The appellate court affirmed. Noting at the outset that the competing testimony of the two experts was like "two ships passing in the night," the appellate court concluded that the trial judge's credibility determination favoring the defendants' expert witness was "pivotal." It held that the defense expert's experience and "his use of the more appropriate ABYC standards" coupled with his "clear opinion that the stairs were reasonably fit for their intended purpose" were a sufficient basis for the trial judge's conclusion.
Learn Your ABYCs
Litigation involving ABYC standards is nothing new. More than 20 years ago, in
Wolff v. Whittaker Marine & Manufacturing Co., 484 F. Supp. 1021 (E.D. Mo. 1979), the defendant in a houseboat explosion case relied on ABYC standards to show that its design and manufacture of the vessel were not defective. In the explosion, three men aboard the Patty Kay were severely burned when one switched on a light in the cabin, and another turned on a stove burner, 30 to 60 minutes after fueling. One of the men later died and a wrongful death suit followed.
The United States District Court for the Eastern District of Missouri entered judgment for the houseboat's designer/manufacturer, who had complied with ABYC standards, explaining:
- The evidence does not support the allegation that the boat's design was unreasonably dangerous in any respect. The evidence was that the boat complied with the standards of the ABYC . . .
- The ABYC standards in fact implicitly recognized that boats are designed such that electrical equipment is located where flammable vapors are present; the evidence was that the Patty Kay met the standards as to the prevention of ignition of those fumes as well as the state of the art in the pleasure craft industry .... Again, the testimony of [defendant's expert] was that the Patty Kay complied, from a practical point of view, with the ABYC recommendation that a generator be placed "as high above the bilges as practicable" or "as possible." The Court does not find that the Patty Kay's conformity to the actual practices of the pleasure craft industry rendered it "unreasonably dangerous."
Know What ABYC Standards Are - And What They Are Not
None of this is intended to suggest that the ABYC standards will make or break your maritime case on their own. The expert witness who relies on those standards or refutes them, as the case may be, must be qualified to do so and know what he is talking about.
In Dunn v. Southern Charters Inc., 539 F. Supp. 661 (E.D.N.Y. 1982), six persons were injured and one killed when a chartered yacht, the Second Wind, burned at anchor off the coast of Rhode Island. At trial, it was plaintiffs' expert who relied upon ABYC standards in an attempt to prove that the vessel's construction was defective. The court rejected that contention, noting:
- Although plaintiffs attempted to show that the construction of the Second Wind did not comply with safety recommendations of the ABYC . . ., such recommendations do not constitute legal standards of seaworthiness, since the organizations are non-governmental entities. Plaintiffs' expert . . . testified that the boating industry universally adheres to such recommendations, but the Court is not satisfied that either through training or experience [plaintiffs' expert] is qualified to judge the boating industry's practice in this regard.
What Can Be Learned From These Cases?
The cases excerpted above are instructive for marine surveyors who anticipate giving expert testimony for several reasons.
First, ABYC standards are not applicable to all cases and the expert who tries to adopt them when they don't fit (or ignores them when they do) will quickly lose credibility with the judge and jury.
Second, liability does not turn on ABYC standards alone. Rather, as in the
Pappas case, the winning expert will use ABYC standards as part of the evidentiary support for his opinion. As ABYC's Charlie Game notes from his experience as a defense expert: "Non-compliance with the standards, you're in trouble; compliance with the standards, you're in a whole lot less trouble."
Third, be up front when testifying and readily acknowledge that ABYC standards are industry recommendations and not the law. As the Preface states, ABYC standards are voluntary, and "are not intended to preclude attainment of desired results by other means."
Overall, the ABYC standards are impressive in their scope and goal of enhancing safe boating. Like it or not, in our society litigation is an important means of implementing that goal. With the prestigious United States Fourth Circuit Court of Appeals' recent validation of ABYC standards in the
Pappas case, it can be expected that applicable ABYC standards will commonly be a pivotal issue in maritime litigation.
