Common interest doctrine privilege claim in ferry accident case

A federal judge in New Jersey is being asked to decide whether the community-of-interest doctrine extends the attorney-client privilege to protect communications between a ferry company and the ship’s captain in litigation over the crash of a Wall Street commuter ferry.

Ferry owner SeaStreak LLC is trying to shield its joint defense agreement with the ferry captain, Jason Reimer, and bar the questioning of Reimer about his discussions with SeaStreak’s counsel in the days leading up to his deposition.

A motion to compel that disclosure, filed by passengers who claim they were injured in the crash, argues that neither the agreement with Reimer nor SeaStreak’s communications with him are privileged because SeaStreak and Reimer share no common interest in light of the facts that Reimer no longer works for the company and has not been sued along with it.

Further, during the investigation conducted by the National Transportation Safety Board, the company blamed Reimer for the crash and said it had removed him from operations as a result of the crash, the claimants argue.

The NTSB report, released April 8, found Reimer largely at fault, but was also critical of the company.

In the Jan. 9, 2013 accident, the SeaStreak Wall Street, a high-speed ferry carrying 331 people from Atlantic Highlands, N.J. to lower Manhattan, struck a pier, gashing a hole in the bow.

Passengers were flung about by the impact, with some sent tumbling down stairs and into walls, injuring 79 of them, as well as one crew member, according to the NTSB report.

In the aftermath, the company went to court seeking to avoid or limit its liability under a federal statute dating back to 1851 that shields shipowners from liability for losses incurred without their “privity or knowledge.”

If the shipowner is held liable, the law can limit their exposure to the value of the ship and any cargo. SeaStreak claims the ferry was worth no more than $7.6 million and has posted a bond in that amount.

Forty-six clams seeking more than $75 million in damages were filed in the case, In the Matter of the Complaint of SeaStreak LLC, which is pending in the U.S. District Court for the District of New Jersey, in Newark.

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