Liability in Ride the Ducks accident a complicated matter

When it comes time to assign blame for the accident Wednesday involving a Ride the Ducks excursion vehicle and a city sludge barge, lawyers will comb through many sets of complex regulations governing everything from federal navigation rules to inspection records to the vessels' equipment.

Personal-injury and admiralty lawyers said Thursday that questions would begin with whether each vessel was following the federal Inland Navigation Rules - known commonly as the Rules of the Road. Those Coast Guard regulations are the traffic laws on the water.

"You're going to be looking at basic concepts of maritime law," said lawyer Matthew B. Wieliczko, a partner with Zeller & Wieliczko L.L.P. in Cherry Hill. "This isn't the first time two vessels have collided in a waterway."

The tugboat pushing the barge was responsible for keeping a proper lookout, according to those rules.

"Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and the risk of collision," the rules state. But that rule does not state where the lookout must be.

The so-called duck boat would have been expected to sound at least five short horn blasts to alert an approaching vessel of danger, according to the rules.

Also central to potential litigation is the maintenance of the craft, how long it was disabled in the water, and what was done during that time.

Steve Sheller, a Philadelphia personal-injury lawyer, said determining liability would require getting answers about who built, repaired, and maintained the duck vehicle and how well those jobs had been done.

Sheller said he wanted to know how much time had passed from the start of the fire - which stranded the vehicle - and the impact from the barge.

"How long was the duck drifting?" Sheller asked. "And what time did it fail, and what time did it report danger?

"That time factor is going to be important."

Those details remained unclear and were being investigated by the National Transportation Safety Board and the Coast Guard, but in the meantime, attorneys will look at what happened before the vehicle hit the water, said Matt Casey, a Philadelphia attorney whose firm, Ross Feller Casey L.L.P., specializes in catastrophic-injury cases.

In addition to the performance of the engine and parts in the Ride the Ducks vessel, Casey said, he would see if the company's inspection records followed its internal policies.

On Wednesday, Ride the Ducks president Chris Herschend said the vehicles are inspected twice every day by company maintenance workers and annually by the Coast Guard. Casey said he would want to see whether those records showed that company inspections were performed Wednesday.

"Because they are supposed to know their product better than anybody else, if their own internal policies exceed any industry standard, there's a strong argument to be made that they should be held to the standards that they set for themselves," Casey said.

It appears the city will not be liable for death, personal injury, or property claims that may result from the faulty or neglectful operation of the city-owned barge, according to a contract the city has with K-Sea Transportation Partners L.L.C., the tugboat company paid to move the barge between city waste-treatment plants in Northeast and Southwest Philadelphia.

The yearlong contract took effect July 1, 2009, and was renewed June 14 for a year.

Under its terms, K-Sea accepted the barge, named the Resource, in "as is" condition, and is responsible for its operation and the maintenance of equipment such as pumps, motors, piping, valves, cranes, mooring, and security and navigation lights.

The agreement also required K-Sea to secure liability insurance under which the city is named as an additional insured. The policy provides coverage of $101 million per incident.

To date, the city has paid K-Sea $1.57 million for its work, according to the office of City Controller Alan Butkovitz.

"So far, I have not seen a basis for city liability," Butkovitz said. "The city is in a very passive position."

City Solicitor Shelley Smith would not comment directly on whether the city is susceptible to blame, except to refer to portions of the K-Sea contract designed to protect the city from claims.

Adding complexity to the situation is which laws to apply. Product-liability claims involving either of the vessels would probably be filed in state court. Claims surrounding the events on the water would be covered by federal admiralty law, but a federal judge could take jurisdiction over all claims.

Such battles were waged over the collapse of Pier 34 in May 2000, when three young women drowned in the Delaware River a short distance from where the duck vehicle was struck.

The operator of the Heat nightclub on the pier pleaded guilty to involuntary manslaughter, and the pier owner pleaded no contest to the same charge.

In the end, the families of the three women, as well as 40 people injured, reached a $29.6 million settlement with the pier owner, the club operator, and other defendants named in several lawsuits. Those claims - Casey was on of the lawyers who handled victim Deann White's claim - were settled in state court, but they did not involve a crash of vessels on the water.