Have you read the rules of the road lately - a set of regulations designed to prevent collisions and promote safety? In the event of a collision, whether and to what extent the Rules of the Road have been followed by the parties will be of prime importance in assessing fault and liability under a comparative fault analysis.

As in most litigation cases, the plaintiff bears the burden of proving the defendant's conduct caused the damages complained of. However, the burden shifts to the defendant when: 1) There is proof of violation of a statute or regulation imposing a mandatory duty (Rule of the Road); 2) The statute or regulation must involve marine safety or navigation; 3) The injury suffered is of a nature that the statute or regulation was intended to prevent. A vessel that is shown to be in violation of the Rules of the Road then has the burden of proving not only that the violation of the regulation probably was not one of the contributing causes to the accident, but also that the violation could not have been a contributing cause of the injury or damage. This rule - the "Pennsylvania Rule" - shifts the burden of proof and persuasion on causation to the party who violated the legislation or regulation.

The Pennsylvania Rule was adopted by the United States Supreme Court in 1873 and has been long entrenched in admiralty law. The Pennsylvania Rule comes from a case entitled "The Pennsylvania." In that case, an American steamship named THE PENNSYLVANIA, traveling at 7 knots through a dense fog approximately 200 miles offshore in the shipping lanes of the Atlantic, collided with a British sailing vessel which was traveling at approximately 1 mile per hour. The rules of the road in existence at the time required steamships underway to use a steam whistle and sailing ships underway to use a foghorn. THE PENNSYLVANIA regularly blew its steam whistle as required by the Rules of the Road. The sailing ship was equipped with both a foghorn and a bell. On the morning of the collision the sailing ship was ringing its bell 15 to 20 times per minute but was not using the foghorn as required by the regulations. The collision cut the sailing ship in half, sinking her and instantly killing the majority of her crew. The trial court and intermediate appellate court held THE PENNSYLVANIA to be solely liable for the collision for operating at a high rate of speed under the dense fog conditions and for failing to take proper collision avoidance action. The issue on appeal to the United States Supreme Court was whether the sailing vessel who used a bell as a signal rather than a foghorn, was partially at fault for the collision under maritime law's comparative fault analysis. The United States Supreme Court reversed the lower courts and held each vessel to be equally at fault with damages divided accordingly.

Under the Pennsylvania Rule, a vessel shown to be in actual violation of a collision prevention rule bears the burden of proving that her fault could not have been a contributing cause of the accident. Some common, statutory and regulatory infractions that arise in collision cases include: failure to display proper lights or shapes; failure to employ proper sound signals under the circumstances; failure to sound a danger signal under appropriate circumstances; failure to maintain proper lookout; failure to maneuver the vessel at a safe rate of speed; and failure to timely take action to avoid a collision.

Take 30 minutes and reread the Rules of the Road. It's worth it!

Good luck and safe boating.