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Staten Island Ferry Crash: The Crash Of The Staten Island Ferry ("The Andrew J. Barberi") At The St. George Terminal In Staten Island On Wednesday, October 15, 2003
The crash of the Staten Island Ferry ("The Andrew J. Barberi") at the St. George Terminal in Staten Island on Wednesday October 15, 2003 raises complex issues of law and fact. Because the City of New York owns and operates the Ferry and the St. George Terminal docking facility, personal injury victims will have only 90 days to file a Notice of Claim against the City stating, among other things, the nature of their claim and injuries sustained. (NY General Municipal Law Sec. 50-e).
If Notices of Claims are not filed by January 13, 2004, personal injury victims may lose their legal right to recover for their injuries.
The families of victims who died in the crash will have 90 days from the appointment of an estate representative to file a Notice of Claim, but in any event, no longer that 1 year and 90 days after the death, or January 13, 2005, to file a Notice of Claim otherwise they may lose their legal right to recover for their loss.
Members of the crew and other employees of the Staten Island Ferry who were injured or killed may have legal remedies outside of Worker's Compensation benefits and should discuss this with an attorney before agreeing to accept such benefits as doing so may act as a waiver of their legal rights.
Kreindler & Kreindler LLP is investigating the tragedy and will be ready to answer any questions regarding the legal rights of the victims or their families. While the National Transportation Safety Board and the United States Coast Guard will be investigating the crash, it is extremely unlikely that their investigation will be complete before the victims and their families will have to file Notices of Claims to preserve their legal rights.
Legal Causes of Action:
As the owner and operator of the Ferry, the City is responsible for its safe operation. This includes the safe piloting of the vessel, i.e. maintaining safe speed and control of the vessel under the circumstances. Under the legal concept of respondeat superior, the City is liable for the conduct of its employees that occurs in furtherance of the City's business purpose. Sauter v. New York Tribune, 305 N.Y. 442 (1953). In this case, the City would be responsible for the conduct of the Assistant Captain (who was piloting the Ferry at the time of the crash) and the Captain who is ultimately responsible for the safe operation of the vessel.
Preliminary information indicates negligent, if not reckless, conduct by the Assistant Captain and Captain. In the event criminal charges are brought against either of them, the City may challenge its responsibility for their conduct under respondeat superior. While some courts have held that intentional or reckless conduct still falls within the scope of respondeat superior, others have not. This may be a hotly contested legal question.
The City will also be liable for the conduct of other crew members who had a duty to monitor the developing dangerous situation and intervene at the appropriate time.
The City has a duty to promulgate unambiguous safety policies and procedures and ensure that they are complied with. Our preliminary investigation indicates that this was not done.
The Standard Operating Procedures in place at the time of the accident required the Captain to be in the pilot house during "docking." The procedures, however, do not appear to require that another crew member be in the pilot house at all times, including the approach to docking phase where initial indications of a dangerous situation may have occurred. Only after the crash did the New York City Department of Transportation unambiguously require that another crew member be in the pilot house at all times. The adequacy and ambiguity of the City's safety procedures will be a central issue in this case.
The City also has a duty to use care in the hiring of the Ferry crew members and to continually test and train them and monitor their proficiency. This duty includes ensuring that the Ferry crew members are mentally and physically competent to operate the Ferry.
There is preliminary information that raises questions about the Assistant Captain's physical health and suitability to be in a position to responsibility for the safety of passengers. The Assistant Captain is reported to have a high blood pressure condition and may have passed out at the controls. The Assistant Captain's suitability for a position of authority was, apparently, previously called into question by a former head of the Department of Transportation who said that he was insubordinate. The Assistant Captain may have been removed from a position of Captain in 1996 as a result. Issues regarding the Assistant Captain's suitability to be at the controls will be central to any claim against the City.
Limitation of Liability:
The City may try to take advantage of a maritime defense called "Limitation of Liability." Under this legal doctrine, the City could contend that its liability is limited to the value of the vessel, which would be significantly less than the aggregate of the personal injury and wrongful death claims. While difficult, this defense can be defeated by showing the City's privity and knowledge of the dangerous condition. In this case, for instance, by showing that the crew did not follow City procedures and the City knew or should have known that was occurring; or that the City did not have suitable policies and procedures in place for operating the Ferry; or that the City did not use diligence in selecting, training or monitoring the Assistant Captain and other crew members; or that the Assistant Captain's conduct was so grossly negligent that his incompetence is deemed imputed to the City so as to bar the application of the limitation. Should the City choose to claim a Limitation of Liability, the issue will surely be hotly litigated.
Clearly, there are many factual and legal issues that remain to be resolved. Given, however, the legal requirement to file a Notice of Claim, it is critical that victims and their families obtain immediate and competent legal advice. Kreindler & Kreindler LLP has handled numerous maritime cases over the past 50 years and has litigated many cases against the City. We stand ready to answer any questions regarding the legal rights of the victims or their families.
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