In Re City of New York

• Court: Court of Appeals for the Second Circuit
• Decided: March 27, 2008
• Docket: 07-1251-cv
• Status: Published

Opinion

07-1251-cv In re City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2007 Argued: January 23, 2008 Decided: March 27, 2008

Docket No. 07-1251-cv ____________________

In re: CITY OF NEW YORK, as owner and operator of the M/V ANDREW J. BARBERI,

Petitioner-Appellant,

—v.—

SHIRAM AGNI, et al.,

Respondent-Third-Party-Plaintiffs-Appellees,

IRIS WEINSHALL, et al.,

Third-Party-Defendants-Appellants.

____________________

Before:

SACK, KATZMANN , and RAGGI, Circuit Judges.

Appeal from February 26, 2007 judgment following a bench trial on a stipulated record denying the City of New York’s petition for limitation of liability stemming from a crash involving the Staten Island Ferry (E.D.N.Y., Korman, J.). Because we conclude that the standard of reasonable care requires at least two crewmembers on watch in or near the pilothouse and that the City failed to enforce a policy that would meet this standard of care, the judgment of the district court is affirmed and the case is remanded. ____________________ WAYNE D. MEEHAN (Gina Venezia, of counsel) Freehill Hogan & Mahar LLP, New York, New York, for Petitioner-Appellant.

JAMES E. RYAN , Dougherty Ryan Giuffra Zambito & Hession, New York, NY (John J. Hession, Jeffrey S. Moller, Anthony Bisignano, of counsel), for Respondents- Third-Party-Plaintiffs-Appellees. ____________________

KATZMANN , Circuit Judge:

This case arises out of the Staten Island Ferry’s crash into a maintenance pier on October

15, 2003. It calls on us to determine whether the City of New York’s practice of allowing the

Staten Island Ferry to be operated with only a single pilot in the pilothouse necessarily meets the

standard of reasonable care as a matter of law. The City, as owner and operator of the ferry,

appeals from a decision of the district court for the Eastern District of New York (Korman, J.),

rendered after a bench trial, finding the City negligent and denying limitation of liability. For the

reasons stated below we affirm, holding that the City did not act with reasonable care when it

allowed a single pilot to operate the Staten Island Ferry without at least one other person in or

near the pilothouse, aware of the navigational circumstances, and ready to render or summon

assistance in the event of an emergency.

I

The M/V Andrew J. Barberi was one of several large passenger ferries owned and

operated by the New York City Department of Transportation between Whitehall Terminal at the

southern tip of Manhattan and St. George Terminal, Staten Island. The ferry was 310 feet long

-2- and displaced 2712 long tons.1 It could carry up to 6000 passengers, but on the day of the

accident it was carrying an estimated 1500 people. The ferry’s typical speed at full ahead was 16

knots (about 18 miles per hour) and sea trials revealed that it could come to a full stop from that

speed in about 420 feet and within 43 seconds. The Barberi was a double-ended ferry with a

pilothouse containing steering and throttle controls at each end. The ferry was equally suited to

traveling in either direction, thus avoiding the need to turn around after leaving or before entering

its slip.

On October 15, 2003, at about 3:00 p.m., the Barberi left Manhattan on its regularly

scheduled 22-minute trip across New York Harbor’s Upper Bay to Staten Island. Although it

was windy (about 25 to 30 knots), the weather was clear and presented no problems for the ferry.

The ferry was under the command of Captain Michael Gansas, but for this trip Assistant Captain

Richard Smith was at the helm. In addition to being licensed captains, both the captain and

assistant captain were certified as first-class pilots, as required by Coast Guard regulations. Both

had more than a decade of experience with the Staten Island Ferry and had consistently received

good performance reviews. Gansas, who had no reservations about Smith’s abilities to pilot the

ferry, was not in the operative pilothouse for this trip; he spent the trip in the aft pilothouse

preparing for an upcoming Coast Guard inspection. Smith was accompanied in the operative

pilothouse by a deckhand, Joseph Selch, who was assigned as a lookout for the trip. Selch later

told investigators that he noticed no problems with Smith and they had a normal conversation

during the trip. Senior Mate Robert Rush was also in the pilothouse for the second half of the

1 One long ton equals 2240 pounds, so the ferry displaced 6,095,040 pounds or 3047 short (or U.S.) tons.

-3- trip, but he had no assigned duties with respect to navigating the ship on this trip and was seated

on the settee, a low-slung bench at the rear of the pilothouse, where he had no view of the

navigational situation out the pilothouse windows.

As the ferry reached the Kill Van Kull Buoy off the north end of Staten Island, about

1000 yards (or half a mile) from the St. George Terminal, Smith released Selch from his lookout

duties so that he could go assist in preparations for docking. As Selch left the pilothouse, Smith

stood up at the controls, as was his custom. The ferry was traveling at its normal speed,

approximately 14-16 knots, as it passed the buoy. At this speed, it would take about two minutes

to reach the slip at St. George Terminal. On typical trips, the ferries would begin to slow down

at the buoy, but on this trip the crew and passengers told investigators that they did not hear the

engines slow down.

Shortly after Selch left the pilothouse, Smith “lost conscious or situational awareness.”

The ferry went off course and crashed at full speed into a concrete maintenance pier about 600

yards south of the slip at the St. George Terminal. Smith remembers nothing from the time Selch

left the pilothouse until the crash. Doctors later determined that his condition was caused by

fatigue. Rush, who was still seated on the settee, recalled Smith standing up at the controls, but

did not notice anything amiss until he felt the ship crash and then heard Smith exclaim, “Jesus.”

The impact tore a 210-foot-long gash in the starboard side of the hull on the main-deck level and

destroyed about 1500 square feet of the pier. Ten passengers were killed. Nineteen passengers

were seriously injured, one of whom died two months later. Fifty-seven passengers suffered

minor injuries.

-4- Smith was 55 years old and was on several prescription medications for high blood

pressure, high cholesterol, insomnia, and chronic back pain. On the day of the accident Smith

reported to work exhausted. The day before he had been working around the house and

babysitting for his grandchildren. His chronic back problems were causing him difficulty

sleeping and during that night he took some prescription drugs for his back pain. At work the

next morning, he failed to report his fatigue or any of his medical conditions or medications to

Gansas (or anyone else), and, in fact, had previously falsely stated on a required Coast Guard

form that he had no medical conditions and did not take any medication.

On August 4, 2004, Smith pleaded guilty to eleven counts of seaman’s manslaughter in

violation of 18 U.S.C. § 1115, for negligently causing the deaths of passengers, and to one count

of making false statements to the Coast Guard in violation of 18 U.S.C. § 1001(a)(2). In his

allocution, Smith admitted that he was criminally negligent in operating the ferry without

reporting his poor physical condition and the medications that he had taken that morning. Smith

was sentenced primarily to 18 months’ imprisonment.

Patrick Ryan, the City’s director of ferry operations at the time, was also indicted on

eleven counts of seaman’s manslaughter and several counts of making false statements and

obstruction of justice. On April 25, 2005, he pleaded guilty to seaman’s manslaughter for

allowing the ferries to be operated in a criminally negligent manner by not enforcing the City’s

internal “two-pilot rule” that “generally required the captain and assistant captain to be together

in the operating pilot house while the [ferry was] underway,” and to making false statements to

the Coast Guard about his practices when he was a ferry captain. Ryan was sentenced to one year

and one day in prison.

-5- On December 1, 2003, the City initiated an action seeking to limit its liability as owner

and operator of the ferry pursuant to the Limitation of Liability Act, 46 U.S.C. §§ 30505, 30511.

All other actions were enjoined and over 175 claimants (including the appellees) asserted

personal-injury and wrongful-death claims against the City in the limitation action. After the

district court denied the claimants’ motion for summary judgment, the parties agreed that the

limitation issue would be decided by Judge Korman based on a stipulated record and without a

live trial.

In a detailed opinion dated February 26, 2007, the district court denied the City’s petition

to limit its liability. In re City of New York, 475 F. Supp. 2d 235 (E.D.N.Y. 2007). The district

court found that the cause of the accident was that the assistant captain, Smith, who was piloting

the ferry, lost conscious or situational awareness in the brief period after he had released the

lookout, but before docking the vessel, and that the accident could have been avoided if the

captain, Gansas, had been present in the pilothouse with Smith. The district court also found that

Ryan, the City’s director of ferry operations, was negligent for failing to enforce a two-pilot rule

or otherwise to guard against the foreseeable risk of pilot incapacitation, and that his negligence

was a substantial cause of the accident. The City was therefore not entitled to limit its liability

because the negligent acts that caused the casualty were within the City’s privity or knowledge.

This appeal followed.

II

It has long been the rule in this circuit that we review a district court’s factual findings for

clear error, but we review its ultimate conclusion of negligence de novo. Payne v. United States,

-6- 359 F.3d 132, 134-35 (2d Cir. 2004); Ching Sheng Fishery Co. v. United States, 124 F.3d 152,

157-58 (2d Cir. 1997).

A panel of this Court recently questioned our Circuit’s continued adherence to the de

novo standard of review for questions of negligence in the face of nearly unanimous

disagreement by the other circuits and commentators, all of whom would apply a more

deferential standard. Payne, 359 F.3d at 135-36. But the panel in Payne declined to refer the

issue to the Court en banc because the outcome of that case did not turn on the standard of

review. Id. at 135. Likewise in this case, because we would affirm the district court’s finding of

negligence on either a de novo or clear error standard of review,2 we do not deem this case to be a

suitable one to consider calling for en banc reconsideration.

We note only that the practice in our Circuit is not so different from that of the other

circuits. Because the determination of negligence is so bound up with the specific and complex

facts of each individual case, we have stated on more than one occasion that “the trial court’s

‘finding should ordinarily stand unless the court manifests an incorrect conception of the

applicable law.’” Esso Standard Oil S.A. v. S.S. Gasbras Sul, 387 F.2d 573, 580 (2d Cir. 1967)

(quoting Radovich v. Cunard Steamship Co., 364 F.2d 149, 152 (2d Cir. 1966)); see also Cleary

v. U.S. Lines Co., 411 F.2d 1009, 1010 (2d Cir. 1969) (per curiam). And even circuits that apply

the clearly erroneous standard to negligence findings will apply a de novo standard when

considering “whether the district court properly defined the standard of care used to evaluate the

conduct of the parties.” In re Paducah Towing Co., 692 F.2d 412, 422 (6th Cir. 1982); see, e.g.,

Clement v. United States, 980 F.2d 48, 53 (1st Cir. 1992) (noting in negligence case that de novo 2 Because we affirm the district court’s finding of negligence under the de novo standard, it follows a fortiori that we would affirm under the clear error standard.

-7- review applies if district court applied erroneous legal standard to the facts); Miller v. United

States, 587 F.2d 991, 994 (9th Cir. 1978) (“Our review of what standard of conduct should have

been utilized in a negligence finding is a legal question.”). The ultimate determination of

negligence is a question that contains both factual and legal aspects, see 9 Moore’s Federal

Practice § 52.34(1)(a) (3d ed. 2007); although appellate courts may differ in their exact

formulations, most appear to take an approach that gives more deference to the trial judge when

the question is predominantly factual and less deference when the question is predominantly

legal. Cf. United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005) (“We review . . . mixed

questions of law and fact either de novo or under the clearly erroneous standard depending on

whether the question is predominantly legal or factual.” (internal citations omitted)).

III

The Limitation of Liability Act limits the owner of a vessel’s liability for, among other

things, “any loss, damage, or injury by collision . . . done, occasioned, or incurred without the

privity or knowledge of the owner,” to “the value of the vessel and pending freight.” 46 U.S.C.

§ 30505(b). The statute therefore alters the normal rules of vicarious liability. Instead of being

vicariously liable for the full extent of any injuries caused by the negligence of the captain or

crew employed to operate the ship, the owner’s liability is limited to the value of the ship unless

the owner himself had “privity or knowledge” of the negligent acts. See, e.g., Carr v. PMS

Fishing Corp., 191 F.3d 1, 4 (1st Cir. 1999); Tug Ocean Prince, Inc. v. United States, 584 F.2d

1151, 1155, 1159 (2d Cir. 1978). Where the owner of a ship is a corporation, the corporation is

not entitled to limit its liability “where the negligence is that of an executive officer, manager or

-8- superintendent whose scope of authority includes supervision over the phase of the business out

of which the loss or injury occurred.” Coryell v. Phipps, 317 U.S. 406, 410 (1943). Thus the

City is not entitled to limit its liability if Director of Ferry Operations Patrick Ryan’s admitted

failure to enforce a “two-pilot rule,” requiring the captain and assistant captain to be in the

operative pilothouse while the ship is underway, constituted negligence that was causally

connected to the crash.

Under admiralty law, the owner of a ship in navigable waters owes a duty to its

passengers to exercise “reasonable care under the circumstances.” Kermarec v. Compagnie

Generale Transatlantique, 358 U.S. 625, 632 (1959). The City argues that reasonable care does

not require two pilots in the pilothouse at all times and therefore Ryan’s admitted failure to

enforce a policy requiring two pilots was not negligent. Counsel for the claimants conceded at

oral argument that reasonable care might not always require two pilots in the pilothouse, but the

claimants nevertheless argue that the City was negligent here because it took no steps to mitigate

the risk of sudden pilot incapacitation. Thus we must engage in the familiar common-law task of

determining the standard of reasonable care under the circumstances of this case. As we explain

below, we believe that strict enforcement of nothing less than a two-pilot rule, which essentially

requires two licensed captains to be in the pilothouse at all times, would exceed the standard of

reasonable care. But we find that the standard of care embodied in a Coast Guard regulation

applicable to similarly sized ships carrying a similar number of passengers, which essentially

calls for at least one person other than the pilot to be on watch in or near the pilothouse,

accurately reflects the minimum safety precautions that the City must take under the

circumstances of this case. Because Ryan failed to enforce not only a strict two-pilot rule but any

-9- policy that would meet even this minimum applicable standard of care, we find that the

negligence was within the privity or knowledge of the City.

In determining what the standard of reasonable care requires, we are mindful of the

formula first stated by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d

169, 173 (2d Cir. 1947): whether the burden of adequate precautions (B) is less than the gravity

of the injury (L) discounted by the probability that the injury will occur (P), i.e., whether B

The gravity of the potential injury if a ferry carrying more than a thousand commuters

were to crash at full speed is well illustrated by the harm actually done in this case—the loss of

eleven lives, injuries to many more, and substantial property damage.

The burden to the City of taking adequate precautions is relatively small. The district

court determined that enforcing a two-pilot rule requiring Gansas to be in the pilothouse with

Smith at all times would have avoided the accident because Gansas could have taken control of

the ship once he noticed that Smith was incapacitated. The Staten Island Ferry already employed

two licensed captains for the Barberi, as it was required to do by Coast Guard regulations,3 so the

cost of the additional precaution in this case would not have involved hiring another licensed

officer. Instead, the cost is reflected in whatever activity the second captain would have to forgo

while the ship is underway in order to be in the pilothouse—in this case, for example, Gansas

was preparing for a Coast Guard inspection during the trip so that preparation would have to be

3 The Coast Guard certificate of inspection for the Barberi specified that the ferry must, at a minimum, carry at least two officers with first-class-pilot certifications. While the certificate of inspection indicates the minimum complement of officers and crew considered necessary for safe operation, see 46 C.F.R. § 15.103, it does not specify where the crewmembers should be stationed or what their duties should be while the ship is underway. It is worth noting that the Staten Island Ferry had ample crew; Senior Mate Robert Rush was even able to ride out the second half of the trip on the settee without any assigned duties.

-10- done at another time or by another employee—and by any displeasure felt by the City’s

employees at the inconvenience of having to be present in the pilothouse at all times. On

balance, the burden to the City of having a second person in or near the pilothouse at all times is

relatively small.

The probability that the injury would occur in this case—that the pilot would become

suddenly incapacitated at a crucial moment and remain incapacitated long enough for the ship to

crash into something—is very small. But the risk, while small, is undoubtedly foreseeable. The

City freely admits that it was aware of the possibility that a pilot could become suddenly

incapacitated, just as any reasonable person would be aware of that possibility. Nevertheless, the

City submits that sudden incapacitation is a foreseeable risk that we accept all the time in myriad

contexts without demanding stringent precautions. For example, every day millions of people

drive cars without first ensuring that there is someone who will take the wheel if they are

suddenly incapacitated. And the City points out that in other forms of mass transportation, such

as buses and trains, we generally accept the risk that a driver could be suddenly incapacitated

without ensuring that a second driver is waiting, ready at the controls to take over. Surely the

risk of death is at least as great with a bus traveling at 70 miles per hour on a crowded highway

as with a ferry traveling 18 miles per hour in a harbor. Yet we do not require two drivers on a

bus.

It is true that in many contexts we do not consider the risk of sudden incapacitation to be

an unreasonable one. See, e.g., W. Page Keeton et al., Prosser and Keeton on Torts § 31 at 170

(5th ed. 1984) (“No person so much as rides a horse without some chance of a runaway, or drives

a car without the risk of a broken steering gear or a heart attack. But these are not unreasonable

-11- risks.”). But whether the risk of sudden incapacitation is considered unreasonable depends very

much on context. “For this reason, it is usually very difficult, and often simply not possible, to

reduce negligence to any definite rules; it is ‘relative to the need and the occasion,’ and conduct

which would be proper under some circumstances becomes negligence under others.” Keeton,

supra, § 31 at 173 (quoting Babington v. Yellow Taxi Corp., 250 N.Y. 14, 18 (1928) (Cardozo,

C.J.)).

In short, our analysis under the Hand formula leads us to compare a relatively small

burden of adequate precautions with a very small risk of great harm. These factors are, of course,

difficult to quantify and weigh against one another. Judge Hand’s test is really more of an

analytic framework than an actual formula into which we could plug rough numerical estimates

of burdens and injuries, and our abstract comparison of the factors is inconclusive. Fortunately,

we need not reason from a blank slate in applying the Hand formula; we can look to guideposts

like industry custom and government regulations in determining the standard of care for a large

ferry like the Barberi.

Custom or standard practice in the industry is a useful measure in assessing the standard

of care. See, e.g., In re Air Crash Disaster at John F. Kennedy Int’l Airport, 635 F.2d 67, 77 (2d

Cir. 1980). Courts will not lightly presume an entire industry negligent. Spancrete Northeast,

Inc. v. Occupational Safety & Health Review Comm’n, 905 F.2d 589, 594 (2d Cir. 1990). As

Judge Hand explained, however, “in most cases reasonable prudence is in fact common

prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the

adoption of new and available devices. . . . [T]here are precautions so imperative that even their

universal disregard will not excuse their omission.” The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.

-12- 1932). In The T.J. Hooper, the Court found that even though it was not general practice in the

industry for tugs to carry radios capable of receiving weather reports, a tug that lost a barge to

rough weather at sea without a functioning radio was negligent and unseaworthy. Id.

In this case, industry custom does not provide a ready answer. The City argues that

standard practice in the industry is to operate ferries with only one pilot in the pilothouse when

conditions permit and points to several examples of ferry operators both in and outside of New

York (as well as other types of vessels operating in New York Harbor) who require only one

licensed officer in the pilothouse at all times. The claimants, on the other hand, point to the

Washington State Ferry System, the largest ferry operator in the United States, as an example of a

ferry system that requires the presence of two qualified people in the pilothouse (a licensed deck

officer and a quartermaster) at all times that the ferry is underway. We do not find either side’s

argument on industry custom to be dispositive. None of the ferries identified by the City is truly

comparable in size or passenger capacity to the Barberi. And while the precautions taken by the

one ferry operator with ships comparable to the Staten Island Ferry may be prudent, these

practices have not become universal enough to suggest an industry custom.

Governmental safety regulations can also shed light on the appropriate standard of care.

In fact, when a defendant has violated a safety regulation causing an injury, courts will find the

defendant per se negligent, the theory being that the legislature or agency has already determined

what precautions need to be taken. See Restatement (Third) of Torts: General Principles § 12

(1999); Keeton et al., supra, § 36; see also Michelsen v. Penney, 135 F.2d 409, 419 (2d Cir.

1943). Courts often will defer to the judgments of legislatures and agencies when they have

spoken because they are institutionally better situated to set safety standards. These same

-13- principles underlie many forms of judicial deference to agency action. Cf. United States v. Mead

Corp., 533 U.S. 218, 228-29, 234-35 (2001); Auer v. Robbins, 519 U.S. 452, 461 (1997);

Chevron U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co.,

323 U.S. 134, 139-40 (1944). As the Supreme Court has recently noted, federal agencies are

often better positioned to set standards of care than are common-law courts. See Riegel v.

Medtronic Inc., 128 S. Ct. 999, 1008, 1011 (2008) (noting that juries applying the common law

lack the expertise of agencies and finding common-law-negligence claims challenging the safety

of a medical device approved by the FDA preempted to the extent the claims were not based on a

negligence per se theory stemming from violation of federal law).

Keeping these principles in mind we look to the agency charged with establishing

maritime safety regulations—the U.S. Coast Guard. 14 U.S.C. § 2. The Coast Guard has

promulgated a pilothouse watch regulation providing that “[i]n addition to the licensed deck

officer or pilot, there shall be at least one member of the crew on watch in or near the pilothouse

at all times when the vessel is being navigated.” 46 C.F.R. § 78.30-5. This safety regulation

applies to Subchapter H “passenger vessels,” that is, vessels of at least 100 gross tons that carry

more than twelve passengers for hire. 46 C.F.R. § 70.05-1(a). As the Southern District of New

York noted in an early case dealing with the predecessor of 46 C.F.R. § 78.30-5, one of the

purposes of the pilothouse watch regulations is “to cover any emergency caused by the sudden

disability of the pilot.” The Scandinavia, 11 F.2d 542, 545 (S.D.N.Y. 1918). While this may not

be the only (or even the primary) purpose of the pilothouse watch regulation, the presence of an

additional person attuned to the situation of the ship serves to reduce the risk of harm from

sudden incapacitation.

-14- This is not a case of negligence per se because the pilothouse watch regulation does not

technically apply to the Staten Island Ferry: as a free ferry, it does not carry passengers for hire

within the meaning of the regulation. The claimants’ own expert witness recognized as much,

stating in his affidavit: “Admittedly this particular regulation may not have been technically

enforceable with regard to the operation of the BARBERI because the passengers rode the ferry

for free at the time and were therefore not technically ‘passengers for hire.’” Therefore, if the

Staten Island Ferry’s practices did not comply with the pilothouse watch regulation, this failure

would not constitute negligence per se. See, e.g., Salinero v. Pon, 177 Cal. Rptr. 204, 212 (Cal.

Ct. App. 1981) (no negligence per se where statutory violation not established).

But the content of the regulation can still be indicative of the degree of care that would be

reasonable under the circumstances. See, e.g., Keeton et al, supra, § 36 at 231. While it may not

technically apply to the ferry, the pilothouse watch regulation does apply to ships of the Barberi’s

size engaged in similar operations. The distinction between paying and non-paying passengers

on a municipal ferry has no rational connection to the safety precautions that are appropriate.

Thus it is fair to say that the pilothouse watch regulation reflects the standard of care that the

Coast Guard—the agency charged with regulating maritime safety, see 14 U.S.C. § 2—believes

is appropriate for ferries of the Barberi’s size carrying the same number of passengers. While

we, as a court exercising common-law judgment, may have difficulty drawing the line between

small vessels that can safely be operated by a single person and large passenger vessels whose

size and complexity require more than one person attuned to the navigational situation for safe

operation, the Coast Guard has the resources and expertise to make such a determination.

-15- The pilothouse watch regulation does not reflect the standard of care that the claimants

urge us to adopt—it does not require two pilots to be in the pilothouse at all times while the ship

is underway—but it does require that a second crewmember be “on watch in or near the

pilothouse.” 46 C.F.R. § 78.30-5. We hold that the standard of care embodied in the pilothouse

watch regulation requires that, in addition to the pilot, at least one other person in or near the

pilothouse be paying attention to the navigational situation of the ship, thereby being ready to

render or summon assistance in the event of an emergency such as the incapacitation of the pilot.

Certainly compliance with the pilothouse watch regulation would not have imposed an undue

burden on such a large and well-manned ship as the Barberi, and it would have reduced the

chances of a devastating casualty in the event of an emergency like the sudden disability of the

pilot. As the Coast Guard has determined that it is appropriate for ships of the Barberi’s size and

passenger capacity to adopt such safety precautions, we hold that reasonable care would require

the Staten Island Ferry to adopt them as well.

IV

It is clear from the district court’s factual findings that the Staten Island Ferry did not

comply with the standard of care embodied in the pilothouse watch regulation. After Smith

released his lookout, Deckhand Selch, to assist in the docking procedure, he was the only person

in or near the pilothouse aware of the ferry’s navigational situation. True, Senior Mate Rush was

present in the pilothouse seated on the settee, but the record does not support a finding that he

was on watch. The district court found that Rush had no assigned duties in the pilothouse and

was not involved in navigating the ship. From where he was seated, Rush had no view of the

-16- ferry’s navigational situation and he noticed nothing amiss until after the crash. It is evident that

no crewmember besides Smith was paying attention to the navigational situation because no one

noticed that the ship was far off course until moments before the ferry crashed at full speed into

the pier. Had a second person in or near the pilothouse been paying attention to navigational

situation as the ferry passed the Kill Van Kull Buoy and failed to slow down, there may have

been time to summon Gansas, revive Smith, or take other action to prevent or minimize damage

before the allision.

This negligence was within the privity or knowledge of the City. Patrick Ryan, the City’s

director of ferry operations, stated in his plea allocution that the City’s written standard operating

procedures for the Staten Island Ferry contained a “two-pilot rule” that generally required the

captain and assistant captain to be together in the operative pilothouse while the ferry was

underway.4 Ryan stated that the rule “served to insure passenger safety by providing for at least

two people in the operating pilothouse aware of the navigational situation.” And Ryan admitted

4 The precise status and content of the City’s standard operating procedure are unclear and that lack of clarity as to content and processes precludes the kind of judicial deference that might otherwise obtain when an agency proceeds deliberatively, following established regulatory procedures. Rather than a concise manual, the standard operating procedures appear to have been a diffuse series of directives on practices and procedures assembled informally in a handout that was never properly distributed. Because the written version of the standard operating procedures that the City contends were in effect at the time of the accident (contained in an undated, eight-page document) was insufficiently authenticated, the district court found “only that there was an operative [standard operating procedure] that contained the two-pilot rule.” There is some ambiguity as to whether the two-pilot rule in the standard operating procedures required the captain and assistant captain to be together in the operative pilothouse at all times. Ryan stated in his allocution that two pilots were “generally” required—language that might admit of some exceptions—and the City points to language in the unauthenticated standard operating procedure suggesting that the captain had discretion to utilize the crew as he saw fit. But we see nothing in the record to suggest that the standard operating procedures sought to provide for anything less than two people aware of the navigational situation in or near the pilothouse—the minimum precautions reflected in the pilothouse watch regulation.

-17- that this rule was not properly disseminated or enforced and he was aware that it was not being

observed on all ships in good weather. While a two-pilot rule may have exceeded the standard of

reasonable care, the City had no other policy in place to ensure that the standard of care

embodied in the pilothouse watch regulation was being observed. The captain of the Barberi

was under the impression that he had the discretion to leave the assistant captain alone in the

pilothouse if, in his judgment, conditions permitted. The Coast Guard regulations put the City on

notice of the practices that the Coast Guard believed were necessary for the safe operation of a

ship of the Barberi’s size and passenger capacity. And yet the City failed to properly train its

captains or enforce a policy that would ensure that at least two people in or near the pilothouse

were aware of the navigational situation at all times.

Because Ryan’s negligent failure to enforce an adequate policy was within the privity and

knowledge of the City, the City is not entitled to limit its liability under 46 U.S.C. § 30505. The

judgment of the district court is AFFIRMED and the case is REMANDED for further

proceedings not inconsistent with this opinion.

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