Negligent Governmental Inspection of Ferry That Crashed Would Not Be a Basis of Liability in New York By on January 10, 2013

In 2005, the Ethan Allen, a public vessel operating as a tour boat on Lake George, capsized and sank.  Twenty passengers were killed and others were injured.  As a public vessel, the Ethan Allen had been subject to yearly State inspections, at which an inspector appointed by the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation (OPRHP) would issue a certificate indicating, among other things, the vessel's maximum passenger capacity. At the time the vessel sank, it had been carrying 47 passengers and 1 crew member, within the 48–passenger maximum set forth in the certificate of inspection.

Claims were brought against The State of New York alleging that it had been negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria, and in failing to require a new stability assessment after the vessel had been significantly modified. The State answered raising several defenses, including governmental immunity.

The claims were dismissed in the recent decision by New York’s Court of Appeals in Metz v. State of New York, 20 N.Y.3d 175 (November 29, 2012).  The court held that the claimants had failed to first establish the existence of a special duty owed to them by the State.  The court relied on “well-settled” precedent that the State is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public.

Thus the claims were dismissed even though there appeared to be merit to the allegations of negligence.  For example, ORPHP for years consistently certified the ship’s passenger capacity at 48 persons despite the fact that the Ethan Allen was modified in 1989—replacing its canvas canopy with a canopy made of wood, which made the vessel top-heavy and more prone to capsizing.  Several State inspectors testified at their depositions that they did not independently verify the vessel's passenger capacity by conducting a stability test, but rather relied on the number certified from the previous year. One inspector agreed that the number was “rubber stamped” based on the capacity from the prior certificate of inspection and another referred to the passenger capacity certified by the Coast Guard as “gospel.”

Initial suspicion for the cause of yesterday morning’s crash of the Seastreak Wall Street ferry that injured more than 70 people is focused upon mechanical failure.  The ferry's crew reportedly told investigators that the ferry’s controls “locked” or “froze” as the captain guided the boat into the slip.  According to reports, the ferry had maintenance issues and recently received a major overhaul.  Over the summer, the ferry's four original engines were replaced with two new ones and the original waterjet propulsion was replaced by more traditional propellers.  The National Transportation Safety Board has dispatched a team of 11 investigators from Washington, D.C. to investigate the ferry crash.

Given the mechanical overhaul and possibility that some governmental agency inspected and certified the safety of the work and vessel, the focus of the investigation may include whether the inspection of the ferry was negligently performed.  However, in light of the decision in Metz v. State, such a claim would likely fail in New York.  Whether such a claim might be valid in New Jersey, where Seastreak is based, is unknown to this writer.

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