A common defense in maritime personal injury and property damage litigation is the “Act of God,” also known as force majeure. It is premised on the argument that the event causing an injury or loss is the result an extraordinary and unexpected manifestation of the forces of nature that was unforeseeable and could not have been protected against by reasonable diligence. The trouble is, more often than not marine casualties are at least partly the result of some substandard human conduct; and when a party’s own negligence or wrong-doing contributes to a casualty, it will not be exonerated by blaming an Act of God. Consequently, this defense is rarely successful.
But this approach worked in the case of Wendelboe v. Seariver Maritime, Inc., et al. In that case, Seariver prevailed in a lawsuit brought by the chief engineer/safety coordinator of the Exxon New Orleans who was injured after being battered by an unusually large wave that crashed over the ship’s main deck. Another crew member was washed from the deck and lost at sea by the same wave.
The chief engineer sought to hold Seariver liable, arguing that the accident resulted from its negligence in exposing him to the risk of harm or because of some unseaworthiness of the ship. The court rejected the claims of fault by Seariver and instead found that the accident was caused by a rogue wave that occurred during a relatively calm spell after a recent period of rough weather. The court also observed that Seariver had shipboard practices and policies in place to promote the safety of its crew during expected heavy sea conditions. Because the accident was caused by an unexpected and unusual natural force, without any culpability on the part of Seariver, the chief engineer had no basis to recover against Seariver.
A defendant bears a difficult burden in proving that an accident was caused solely by an “Act of God.” To succeed with this defense, the defendant must prove that the accident was attributable to natural causes and that it was not negligent in contributing to the accident. Seariver Maritime met this heavy burden in this case and was found to be free from fault, accordingly.
Note: This article first appeared in WorkBoat magazine, and it can be found on WorkBoat’s website.