Posted on September 13, 2024
In the days after the cargo ship Dali toppled Baltimore’s Francis Scott Key Bridge, the financial toll on the city was incalculable and overwhelming.
All water traffic to and from the city’s bustling port was halted, disrupting the shipments that typically come and go via trucks and trains. Baltimore’s emergency officials were occupied with complicated rescue and recovery efforts that stretched on for weeks. And the city created a financial assistance program for workers who relied on the port for income as work dried up.
Still, when it comes to recovering compensation for those losses, attorneys who specialize in maritime law say they expect Baltimore to have a difficult time. And city legislation hastily approved and sent to Mayor Brandon Scott late last month will give Baltimore little additional leverage, they say.
The bill states that Baltimore “shall be entitled to recover for economic loss” from the March 26 disaster, when the 984-foot Dali lost power and then crashed into a Key Bridge support pier, plunging the span into the water below and killing six construction workers fixing potholes on the roadway.
In the months since, the Patapsco River has been cleared of debris and port activity has nearly — but not completely — returned to pre-collapse levels. Traffic in the city continues to be a challenge, however, as many of the more than 30,000 vehicles that used to cross the bridge daily must now travel through city streets.
The legislation would allow the city to recover damages including lost income, economic benefits, tax revenue as well as costs for the response, damage to natural resources and projects delayed or lost as a result of the collapse.
However, the U.S. Constitution grants the federal government jurisdiction over maritime law and Charles Simmons, who teaches maritime law at the University of Baltimore and University of Maryland law schools, said it is “difficult to conceive” that the bill could “survive a Constitutional challenge.”
The city’s efforts to recover damages from the bridge collapse began less than a month after the calamity. As is the case after many maritime disasters, the Dali’s owner and manager filed a request before a federal judge days later to clear them from liability or limit damages. Grace Ocean Private Ltd., the owner, and Synergy Marine Pte Ltd., which manages the ship, asked for damages to be limited to the value of the ship plus the revenue it stood to make from its cargo.
Last month, the City Council took an additional step, passing legislation giving the city authority to seek damages related to the Dali’s collision with the bridge. The bill, which the council passed by a vote of 11-0 with one abstention, expands upon a provision in Baltimore’s charter giving the city power to “provide for the preservation of the navigation of the Patapsco River and its tributaries.”
Councilman Eric Costello abstained saying he was concerned about the “wide-reaching legal authority” the legislation could potentially give Baltimore’s solicitor.
Daniel Schwartz, an attorney with DiCello Levitt, one of two firms representing the city, told the council during a committee hearing last month the legislation will potentially help to protect Baltimore’s damage claims as it pursues litigation. The cost of the bridge collapse “reverberates throughout the city’s economy,” he said.
“Every single dollar the city has had to spend and that it will be costing the city in the future should be recovered from those responsible,” he told the council.
Neither Schwartz nor Baltimore Solicitor Ebony Thompson would comment further on the litigation, saying any additional details could reveal the city’s strategy in the case.
Article III of the Constitution outlines the federal government’s authority over maritime law and that, paired with judicial precedent, has led some legal experts to question whether the legislation would carry much standing.
Michael F. Sturley, a University of Texas at Austin School of Law professor who specializes in admiralty and maritime law, said over email that he is “skeptical” Baltimore’s ordinance would make “any practical difference.”
“Under the Constitution’s Supremacy Clause, federal maritime law preempts state laws (and city ordinances) that conflict with maritime law,” he wrote.
Simmons, who practices at Whiteford, Taylor & Preston, pointed to a 1927 Supreme Court Case, Robbins Dry Dock & Repair Co. v. Flint, which established that to recover damages from economic loss resulting from a maritime event, a plaintiff must have suffered physical property damage. That would make it possible for the state of Maryland — which owns the Key Bridge — to recover economic losses, but less so for Baltimore City. (The state has not yet filed suit in the case, but has indicated it will.)
At the crux of the Robbins Dry Dock decision is the requirement that a plaintiff must have a tangible, physical connection to a maritime event. Otherwise, there could be a slippery slope of litigation. “There would be no limit to a defendant’s liability,” wrote New Orleans maritime attorney Christopher K. Ulfers in 2022.
Attorneys for Baltimore will have to argue that the Robbins Dry Dock decision should not apply because the Dali’s owners were negligent when they allowed the ship to sail. Preliminary filings in the case have already set the stage for that argument.
“None of this should have happened,” the city said in a claim filed in U.S. District Court said. “Even before leaving port, alarms showing an inconsistent power supply on the Dali had sounded. The Dali left port anyway, despite its clearly unseaworthy condition.”
Simmons also pointed to another concern in the city’s recent legislation — that it seeks to apply to the past.
“Beyond the City’s efforts to change, without authority, entrenched maritime law, the Bill seeks to apply retroactively,” Simmons said. “While some legislation can be enacted retroactively, again, it is difficult to conceive that a bill seeking to create a retroactive right to pursue economic damages could survive a Constitutional challenge.”
