All Bark and No Bite: A Modern Evidentiary Argument for the Retirement of the Age-Old Pennsylvania Rule
Wang, Bin, William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. THE PENNSYLVANIA RULE EXPLAINED A. Birth of the Rule B. Characterization as an "Extra-strength" Morgan Presumption C. The Impact of Reliable Transfer II. A HISTORY OF AVOIDANCE A. Traditional Techniques B. Modern Circumventions 1. Not Finding a Statutory Violation 2. The "Causal Connection" Requirement 3. The Rule and the Brussels Collision Convention of 1910 4. Mutual Application and Non-application III. THE CASE AGAINST THE PENNSYLVANIA RULE CONCLUSION
In 1873, the Supreme Court created a new "drastic and unusual presumption" (1) and made it applicable in cases of marine collision. The presumption, now popularly known as the Pennsylvania Rule, (2) allows a proponent of the Rule to place the burden of proof upon an opposing party, when the proponent shows that the opponent was in violation of a statute or regulation designed to prevent marine collisions. This shift of the burden of proof not only encompasses the shift in the burden of production traditional to most presumptions, but also includes a shift of, as well as an increase in, the burden of persuasion. Thus, the alleged statutory violator in a marine collision, the opponent of the Pennsylvania Rule, must show that her violation could not have been a cause of the collision. (3)
In an era when shipwrecks often meant few survivors, the Pennsylvania Rule served an important pragmatic function. The Rule's vitality was justified in that it (1) made for convenient adjudication; (2) allocated the burden of production equitably upon the party who was, in fact, guilty of a statutory infraction; and (3) upheld the proper policy motivations of deterring rule violations and preserving maritime safety. (4) The Rule's effectiveness as a deterrent was particularly understandable when combined with the Divided Damages Rule, which apportioned fault on a none, half, or all basis. (5) In this regard, the Pennsylvania Rule was also often criticized as being harsh and unfair, (6) as the perpetrator of a minor statutory infraction was, nevertheless, at risk of being forced to bear at least half, if not all, of the loss should that party fail to rebut the Pennsylvania Rule's unique presumption.
All of this was changed when the Supreme Court, in 1975, overruled the Divided Damages Rule in favor of a regime of comparative fault. (7) Today, it is said that the Pennsylvania Rule's presumption may happily coexist within such a regime. (8) Nevertheless, this Note contends that despite the Pennsylvania Rule's capability of coexisting within a regime of comparative fault, the Rule should not coexist within such a regime, especially in light of modern technology and recent case law. Part I.A of this Note examines a brief history of the Pennsylvania Rule and the exact 1873 Supreme Court formulation of the Rule. Part I.B digs a little deeper into understanding the Rule and explains why the Rule may be best characterized as an "extra-strength" Morgan presumption. (9) Part I.C takes the Part I.B understanding of the Pennsylvania Rule and examines its interaction with both the Divided Damages Rule and the post-1975 regime of comparative fault. In total, Part I of this Note explains the basis for much of the debate surrounding the Pennsylvania Rule and how the Rule was expected to function in the post-1975 era of comparative fault.
Part II of this Note takes a case study approach to analyzing how modern courts have dealt with the Pennsylvania Rule in light of comparative fault. In particular, Part II notes that judicial avoidance of the Rule's "drastic and unusual presumption" (10) still occurs in many district and circuit courts. In Part II.A, two traditional methods of avoiding the Rule's presumption are outlined. Part II.B.1 shows how some modern courts have tried to avoid the Rule by simply refusing to find a statutory infraction. …