On the evening of Dec. 15, 1988, the 156-foot “Wishing Star” sailed from San Juan fully loaded with cargo bound for St. Maarten. The waters off Puerto Rico were calm, visibility good and maritime traffic light.
At midnight an unlicensed seaman came to the bridge to take the wheel for the midnight-to-4 a.m. watch. The helmsman had been loading cargo for 12 hours and had two hours’ sleep prior to assuming his watch. Before taking the wheel he confirmed that the radar was operating, but the seaman was not trained in radar.
The shipowner-captain supervised the watch and served as lookout. He left the bridge occasionally, always returning to check the helmsman’s piloting and navigation.
At 1:53 a.m. the captain went below. Shortly thereafter the helmsman saw something dark suddenly appear in front of the “Wishing Star” and loom over him. He attempted to take evasive action by turning the wheel hard to port. This was a cardinal sin of seamanship. (When there is a risk of collision as vessels approach on reciprocal courses, each shall alter course to starboard so that they shall pass on the port side of the other.) Seconds later the helmsman was formally introduced to the “Van Noodt,” a 600-foot containership sailing at full speed.
The “Van Noodt” crushed the “Wishing Star’s” wheelhouse, causing it to burst into flames. All aboard abandoned ship and were rescued. The vessel soon capsized, and, faring environmental damage, the Coast Guard sank her.
The “Wishing Star” case (1994 A.M.C. 170) was tried in the Federal District Court in Puerto Rico. The court found that the “Wishing Star’s” sudden turn to port directly into the path of the “Van Noodt” also contributed to the casualty. The court apportioned 80 percent of the collision negligence to the “Wishing Star” and 20 percent to the “Van Noodt.”
While the “Wishing Star” case primarily concerns itself with liability based upon the International Regulations for Preventing Collisions at Sea, the decision also focuses on the Limitation of Vessel Owner’s Liability Act (46 U.S.C., Sec. 181 et seq.).
The Act allows a vessel owner to petition to limit liability “for any loss, damage or injury by collision . . . incurred without the privity or knowledge of such owner” to the value of the vessel after the casualty. Claimants must prove that the petitioner’s vessel was unseaworthy and this led to the casualty.
The shipowner must then prove the absence of privity or knowledge of the acts of negligence or unseaworthiness. Privity or knowledge are imputed to the shipowner if he knew or should have known that unseaworthy conditions existed.
Privity exists if the shipowner fails to make inquiries as to crew competence. However, instantaneous navigational errors are generally not attributable to the shipowner. In the “Wishing Star” case, the court found the shipowner failed to sustain its burden of proving a lack of privity or knowledge.
The captain never asked the helmsman whether he knew how to use radar. Instead, he allowed a helmsman with no working knowledge of navigational equipment to take the wheel without constant supervision. “The court also questions the prudence of allowing (the seaman) to take the helm . . .on only two hours’ sleep . . . The sudden turn… was . . . an instantaneous navigational error, rather it was a consequence of incompetence imminent in the “Wishing Star” before she ever left port. This unseaworthiness is directly attributable” to the vessel owner.
What if the helmsman had been competent, but exhausted from working overtime. Would the result be the same? The “Wishing Star” decision suggests that it would. It also suggests that a tired seaman may become an unseaworthy seaman.