Bareboat Charterer Liable For Concealing Past Incidents of Misconduct
In Gabarick v. Laurin Marine, Inc., 900 F.Supp.2d 669 (E.D.La 2012), the Fifth Circuit addressed liability issues regarding a bareboat charter where the defendant's employee had fallen asleep at the wheel while operating the vessel.The first issue was who maintained operational control over the tug and barge involved in thecollision. The tug, MEL OLIVER, had been subject to a two step, two contract process in which defendant, American Commercial Lines, Inc. (ACL), granted a bareboat charter to defendant, D.R.D. Towing Co., LLC (DRD) and simultaneously, DRD granted a fully found charter over the same vessel to ACL at a higher rate. The court noted that in these contracts the owner of the vessel completely and exclusively relinquishes possession, command, and navigation’ of the vessel to another.The court found that DRD was the owner pro hac vice, because DRD had operational control over the vessel. Further, certain provisions in the second fully found charter did not have the effect of destroying DRD’s control over the vessel. Importantly, DRD maintained control over the management and navigation of the vessel even though it did not necessarily maintain control over the destination. As owner pro hac vice, DRD was responsible for the navigation errors of its crew and the seaworthiness of the vessel.Despite this fact, ACL could still be liable if it knowingly placed an unsafe vessel into the hands of an unsafe vessel operator and such placement caused the collision. Looking at the history of the vessel safety inspections, practices and audits for the MEL OLIVER, the court found that nothing in the record indicated the vessel would malfunction in a way soas to create liability on ACL’s part. Finally, while DRD had a history of other incidents involving misconduct, DRD had concealed these events from both ACL and the U.S. Coast Guard.Thus, the court held DRD liable for the collision.
