Pennsylvania: Maritime – Successful Defense in Duck Boat Case
Peter Schwendtner and Aniko Schwendtner a/k/a Aniko Takacs and Sandor Prem and Gizella Maria Prem vs. Ride the Ducks of Philadelphia, et al, USDC for the ED of Pennsylvania, 2:10-cv-5007
Jack Snyder, Chair of Rawle & Henderson’s Catastrophic Loss Group and William Carr, a partner, with assistance from their trial team, successfully defended Ride The Ducks International (RTDI) and Herschend Family Entertainment Corporation (HFEC) in both the personal injury and maritime litigation arising out of the allision of a tug-driven barge and a tourist duck boat on the Delaware River on July 7, 2010, which resulted in the deaths of two Hungarian students and numerous injury claims from other passengers aboard the amphibious vessel.
An allision is the running of a moving vessel into a stationary vessel and is distinguished from a collision, which is significant in that the alliding vessel bears responsibility for the accident under maritime law. In this instance, DUKW 34 was disabled in front of Penn’s Landing and was run down by the 250-foot sludge barge Resource, owned by the City of Philadelphia. The barge was being pushed by the K-Sea Transportation tug boat Caribbean Sea despite more than 2,000 feet of navigable water between DUKW 34 and the New Jersey shoreline. For their parts, neither HFEC nor RTDI had ever encountered a passenger injury of any type on a duck boat tour while on the water in more than 33 years of operation and with more than 12 million guests before the day of this incident.
In their pleadings, plaintiffs alleged that RTDI was negligent for their policies and procedures and for having poorly trained personnel both in their maintenance department and onboard the vessel. Plaintiffs also criticized RTDI for failing to have their passengers don life jackets sooner and for alleged violations of U.S. Coast Guard regulations. These allegations were vigorously disputed by the defense.
The pilot of the Caribbean Sea, First Mate Matthew Devlin, was operating the tug boat from the lower wheelhouse, with the radar and the radios off, while talking on his cell phone and surfing the internet on the company issued laptop. There was no lookout stationed on the bow of the barge and the tug boat's upper wheelhouse was unmanned at the time of the incident.
During discovery, the defense exposed the fact that every crew member onboard the Caribbean Sea routinely used their personal cell phones while on watch and K-Sea had no comprehensive policy in place regarding utilization of the proper wheelhouse, the proper placement of a lookout, or the personal cell phone and computer use by its crewmembers while on duty. The first mate was poorly trained by K-Sea and routinely disregarded safe practices while piloting ships for K-Sea.
Within hours of running over DUKW 34, the first mate asserted his Fifth Amendment rights and refused to speak with investigators. He subsequently pleaded guilty to one count of misconduct by a ship operator causing death and is currently serving a sentence of more than 1 year in federal prison.
The defense retained a group of leading experts which conclusively established through scientific measures that the NTSB was incorrect in many of its findings regarding RTDI. The defense experts were able to demonstrate that the tug and barge were on the wrong side of the shipping channel and on a heading directly towards an allision with Pier 5 on the Penn’s Landing waterfront. Contrary to the NTSB’s findings, using photogrammetrical analysis, the defense experts proved that the allision with DUKW 34 was wholly avoidable as the tug and barge had more than 2000 feet of navigable waters in which to navigate between DUKW 34 and the New Jersey shoreline.
Following an unsuccessful mediation in 2011, the defense team performed months of intense discovery including more than 50 depositions, review of nearly half a million pages of documents, and consultation with more than a dozen expert witnesses and consultants. Ultimately, the case resolved favorably for RTDI and HFEC during the third day of trial in the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia) before U.S. District Court Judge Thomas O’Neill.
The defense's trial strategy, which included the use of technology and compelling visual communication strategically blended to clarify this complicated case to the District Court, was successful in bringing about a favorable resolution to the case. Opening statements incorporated party admissions made during video depositions, actual video of the incident, photogrammetry, interactive exhibits, and scientifically re-created multidimensional depictions of how the incident occurred, and, more importantly, where it occurred, thereby squarely placing blame for the incident on K-Sea Transportation, Inc. K-SEA’s culpability was also emphasized during cross examination of crew members.