In its recent decision of MacDonald v. Kahikolu, 2009 U.S. App. LEXIS 20162 (9th Cir. 2009), the Ninth Circuit Court of Appeals affirmed that the admiralty Pennsylvania Rule does not apply to maritime personal injury claims, but also described a split in the federal circuits regarding the application of this doctrine in such cases.

MacDonald was a maritime Jones Act claim for an ear injury sustained by an employee of a recreational boat company while the employee was free-diving. The employee argued for the application of the Pennsylvania Rule to his claims. The Rule stems from a U.S. Supreme Court case (The Pennsylvania, 86 U.S. 148, 1998 AMC 1506 (1874)), which held that where a vessel owner violates any statutory duty or rule designed to prevent collisions, the vessel-defendant has the burden of proving that the rule violation did not cause and could not have caused the collision. In MacDonald, the employee argued that the employer's failure to follow certain Coast Guard regulations relating to diving should implicate the Pennsylvania Rule and shift the burden of proof to the employer.

Both the trial and appeals court in MacDonald found against the employee, holding that he could not demonstrate that his employer's violation of the Coast Guard rule caused his injury. The Ninth Circuit court specifically declined to use the Pennsylvania Rule to shift the burden of proof, observing that "it is not clear that the Pennsylvania Rule applies to cases that do not involve a collision or other 'navigational' accident, or to claims made under the Jones Act." Citing prior Ninth Circuit authority, the MacDonald court held that the Rule should not apply to maritime personal injury cases.

Although it clearly rejected the use of the Pennsylvania Rule, the MacDonald court also noted that other federal courts in the Second, Third and Fifth Circuits have taken a broader view of the Rule, holding that it was not confined to collision cases. Nonetheless, the MacDonald court openly disagreed with these other courts and limited the Pennsylvania Rule to collision and navigation claims.

It seems clear that the holding in MacDonald was, in part, written to contradict the Alaska Supreme Court's decision of Marine Solution Services, Inc. v. Horton, 70 P.3d 393, 406-07 (Alaska 2003), which had interpreted prior Ninth Circuit case law to allow the Pennsylvania Rule to be used in Jones Act cases. The Ninth Circuit has now firmly rejected that approach.

Since the appeal period has not yet expired, it remains an open question whether the plaintiff in MacDonald will ask the U.S. Supreme Court to decide this issue, in light of the split between federal circuits. In the author's opinion, even if that appeal was accepted by the Supreme Court, it would be very unlikely to broaden the scope of the Rule, and would more likely read it narrowly as the Ninth Circuit has done.

A copy of the MacDonald opinion can be found here.

Lafcadio Darling specializes in maritime and commercial litigation, representing a wide variety of business and consumer clients. In addition to being licensed in Washington and California, Lafcadio also holds an LL.M. from University College London and is a licensed solicitor in England & Wales