In a recreational boating accident, many legal issues will arise. Liability, or fault, will be a
major issue. Which boat operator is to blame for the accident? Another issue is
insurance coverage. Is there marine insurance, and if there is, does it cover the injury or
injuries of the accident victims. Surprisingly, marine insurance is not mandatory. See
Basics of Marine Insurance, from the August 2005 Boaters Digest.
But what about smaller vessels where the equipment is not sophisticated, or where
reliable logs are not kept? Gathering evidence may require detailed investigation and
reconstruction of events. Which sailboat was on the starboard tack…and which way
was the wind blowing? Did a genoa jib hide a sailboat’s port running light from an
approaching vessel? Was that sportfisherman ahead of or abaft your starboard beam?
Sure, these elements can be speculated by studying the location of damages on the
vessels…and examining the way shrouds snapped, or fiberglass splintered. But it’s not
like a car accident where one car was going north, another east…and they collide at a
red light, with a traffic camera catching the moment of impact in a high resolution image.
Just as a good investigation will include physical evidence, it must include testimonial
evidence. This will require interviewing the operators, passengers, or eyewitnesses on
shore. This can be done through a deposition, where the witnesses answer questions
verbally under oath…or interrogatories, where a witness provides written answers to a
list of questions. A good maritime attorney must know what questions to ask and how to
ask them. A good maritime attorney should also know what to do with the answers.
Witnesses can forget details, or they might not have been in a good vantage point to
view a collision. It should be remembered that witnesses may want to protect family
members, or protect the owner of the boat they were aboard.
Another form of testimonial evidence can come from an expert witness. This can be a
former captain or naval architect who takes the stand to assert that it is likelier than not
that a collision or a capsizing occurred in a certain manner, based upon physical
evidence, passenger testimony, stability characteristics of the vessels, sea conditions,
etc. Such an expert witness will generally have credentials that demonstrate to the
court that he or she is in a position to offer such a conclusion. A good maritime lawyer
should understand enough about commercial and recreational vessels to question such
conclusions if necessary. A good maritime trial attorney should recognize when the
adversary's expert testimony is technically defensible…and when it is not.
Another important issue in a recreational boating accident is whether or not an accident
will be subject to admiralty jurisdiction, thus opening the door to maritime law. If a
pleasure boat accident occurred on navigable waters and the accident had the potential
to disrupt maritime commerce, and the vessels were engaged in traditional maritime
activity, admiralty jurisdiction applies. Traditional maritime activity doesn’t necessarily
mean dredging a harbor or commanding a containership. It can include recreational
boating. If maritime law applies, then the door is opened to maritime law concepts.
These include certain presumptions of law, limitation of liability, comparative liability,
marine liens, marine salvage, among other elements unique to maritime law. To learn
more about some of these, go to Maritime Law and Sailing, from Windcheck magazine,
or go to Defeating Limitation of Liability in Maritime Law, from Trial, the magazine of the
Association of Trial Lawyers of America.
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|Boating Accident Legal Issues
New York Boating Accident Attorney - Boating Accident Legal Information - Boating Accident Legal Resources
Going back to liability…there may not
be a completely blameless operator.
Evidence could indicate negligence
on the part of both vessels. Maritime
law recognizes this reality by
applying comparative liability. This
means the blame for a boating
accident could be shared by both
operators, in a manner determined by
The thing about boating accident
liability…you need evidence to prove
it. Sometimes the evidence will be
obvious, like a boat hitting a crowded
gas dock in attempting a downwind
landing. But sometimes the evidence
won’t be obvious. Boats don’t leave
skid marks. Ascertaining the final
headings of two boats prior to a
collision can be difficult. Larger
vessels have electronic navigation
equipment from which navigational
data could be retrieved. Commercial
vessels are moving towards use of
black boxes, which have long been
used aboard aircraft.
Monetary compensation for the victim in
a boating accident can consist of
economic losses and non-economic
losses. Pain and suffering is a form of
economic loss. Read about a jet ski
accident where the victim clearly
sustained pain and suffering, but was
not awarded same in a recent Circuit
Court of Appeals decision.
The swearing in of a witness. A good
maritime trial attorney should know how
to ferret the truth out of a well coached
witness...the one who can act like a boy
scout and lie while respectfully ending
every sentence with, "Your Honor" and
A maritime trial lawyer
representing a boating
accident injury victim, or
injured seamen, should be
alert to improper questions
an opposing attorney might
use during direct or cross
examination. A good
maritime trial lawyer should
aggressively defend the
injured boater or seamen
from an opposing lawyer's
improper questions. Here
are some examples.
A leading question is one
that tries to trick the injury
victim into answering
something the adversary
lawyer wants confirmed. For
instance, "Is it true or not
that you were operating your
vessel at excessive speed
in the no-wake zone?"
Another type of improper
question that a good marine
lawyer should challenge is
the misleading question.
For instance, "Are you still
totally lost with grasping the
concept of red right return?"
Questions that are
argumentative in nature
should also be challenged.
"Why did you cut off the other
should also be objected to.
An example would be a
string of questions rolled
into one that is confusing.
"Why did you increase
speed and when would you
say was the point at which
you first spotted the other
are ones that require the
witness form an opinion
they aren't suited to make.
"Was the captain reacting to
withdrawl from his
These are just a few
exceptions. You can see the
entire list of objections,
including the Hearsay Rule
under the Federal Rules of