Friday, May 6, 2016

In a recent issue of
The Ensign magazine, the publication of the
United States Power Squadron, Tim covers maritime law issues
governing felony and misdemeanor provisions of BWI and BWAI
(Boating Under the Influence and Boating While Ability Impaired,
respectively). These legal issues often arise in boating accidents
and are regularly addressed in public service announcements
aired during the Memorial Day and Fourth of July holiday

Read the article Laws Are Tough When it Comes to Boating
Under the Influence from the Ensign Magazine...

As boaters look forward to a summer of fun and relaxation on the
water, they’ll sometimes hear public service announcements
about the risks of operating a vessel under the influence of
alcohol. Most boat owners would rather think about plans for a
weekend cruise than about the statutory blood alcohol levels that
could lead to criminal prosecution. But when it comes to alcohol
on the water, laws today are stricter than they were for an earlier
generation of boaters. Current laws for BWI, or boating while
intoxicated, can result in felony charges, prison sentences, and
stiff fines. Additionally, a conviction can mean higher insurance
premiums, mandatory boating safety classes, and damage to
one’s driving record.

Part of the pleasure of boating might be seen in things like a cold
beer on a hot day or a cocktail while taking in a sunset with
friends in a peaceful cove. However, many folks will wait until the
engine is shut down and mooring pennant securely fastened on
the foredeck before uncorking that bottle of wine to enjoy with
cheese and crackers. For some, it’s a matter of not touching a
drop while operating a 20 ton vessel with 600 horsepower at
their fingertips.

Boaters could also be wary about alcohol on the water because it
impacts people differently. While everyone would probably agree
that alcohol can be detrimental to one’s judgment, coordination,
and reflexes, the effect of alcohol might not be identical from one
boat operator to the next. Sure, we see those familiar charts
showing blood alcohol levels based on a given number of drinks.
For such purposes, a drink is generally regarded as roughly half
an ounce of alcohol. To be more precise, the National Highway
Traffic Safety Administration uses the figure of 0.54 ounce,
where a shot of distilled spirits, 5 ounce glass of wine, or 12
ounce glass of beer are treated as equivalents of one another.

With these blood alcohol charts, or “blood alcohol calculators”
as they’re sometimes called, someone might say, “I weigh 180
lbs. I had two drinks. Therefore, this figure right here where
those two lines of numbers intersect is my blood alcohol level.”
However, it isn’t always that simple. Even with a known number
of drinks, different individuals could experience different blood
alcohol levels based on gender, amount of food in their stomach,
and other factors, such as the time period in which they
consumed the drinks.1 People could exceed lawful blood alcohol
levels for operating a boat long before their breath smells like it
could ignite a match.

This issue of blood alcohol level is important because it’s the
basis by which boating laws draw the line on criminal
prosecution. These laws may use different terms to denote blood
alcohol level, such as blood alcohol content or BAC. Whether the
term used is content, concentration, or BAC, the bottom line is
that if someone’s blood alcohol level exceeds these statutory
limits, the door is open to arrest. Alcohol related violations on the
water are governed by state law as well as federal law. This
means Coast Guard personnel can stop and board vessels, as
can marine units of local police departments.

Under federal law, someone who operates a vessel while under
the influence of alcohol or dangerous drug is liable for a civil
penalty of not more than $5,000. Boating while under the
influence of alcohol or dangerous drug is a class A misdemeanor
under federal law.2 On the state level, different states have their
own laws, each with their own definitions, provisions, and
sentencing guidelines.

It would take considerable space to cover the applicable laws of
each state. Therefore, I’ll use New York to illustrate the operation
of state law governing boating and alcohol. If someone in New
York State whose blood alcohol content is 0.08 percent or higher
operates a vessel, it’s considered boating while intoxicated, or
BWI. This appears in section 49 of New York Navigation Law. A
first conviction is a misdemeanor, carrying a sentence of up to
one year and fines between $500 and $1,000. A second
conviction in ten years is a class E felony, with a sentence of up
to four years and fines between $1,000 and $5,000. A third
offense in ten years is a class D felony and carries a sentence of
up to seven years and fines between $2,000 and $10,000.3

New York State also defines the lesser offense of boating while
ability impaired, or BWAI. In the case of BWAI, a BAC of 0.07
percent or higher, but less than 0.08 percent, is prima facie
evidence that someone is not intoxicated, but impaired. If a
person’s BAC is 0.05 percent or higher, but less than 0.07
percent, it is again prima facie evidence he is not intoxicated, but
only relevant evidence that he is impaired. The term prima facie
basically means the prosecutor’s case, on its face, is evident
from the facts at hand. The penalty for a first time BWAI is a fine
of up to $500. A second conviction in five years carries a
sentence of up to 30 days and fine of up to $750. A third
conviction in ten years is a misdemeanor and carries a sentence
of up to six months and fine of up to $1,500.4

To put blood alcohol levels in a more tangible context, I’m
excerpting parts of a table prepared by the Centers for Disease
Control and Prevention that summarize the typical effects of
alcohol at various concentrations in the bloodstream. At 0.05%
BAC, people experience impaired judgment, lowered alertness, a
release of inhibition, and usually a good feeling. At 0.08% BAC,
they experience poor muscle coordination (in terms of balance,
speech, vision, and reaction) and an impairment of judgment, self-
control, reasoning, and memory. At 0.10% BAC, the result is
slurred speech, poor coordination, and slowed thinking. At 0.15%
BAC, results include a major loss of balance, possibility of
vomiting, and far less muscle control than normal.5

Perhaps one of the fundamental reasons for today’s strict BWI
laws is the role alcohol plays in boating accidents involving
fatalities and injuries. In 2013, alcohol was a contributing factor
in 305 boating accidents in the United States.6 Additionally, in
terms of all the controllable and uncontrollable factors that can
contribute to an accident, from weather to equipment failure to
the actions of another boater, drinking alcoholic beverages at the
helm is seen as something people can choose not to do. The
Coast Guard has compiled exhaustive statistics about the
correlation of alcohol and boating accidents. But the meticulous
detail of this data aside, one thing remains strikingly simple,
which is that today’s BWI laws can carry serious consequences
in terms of felony charges, prison sentences, and fines.

References: (1.) National Highway Traffic Safety Administration,
The ABCs of BAC - A Guide to Understanding Blood Alcohol
Concentration and Alcohol Impairment; (2.) 46 U.S.C. 2302(c); (3.)
New York Navigation Law - Section 49; (4.) New York Navigation
Law - Section 49; (5.) Centers for Disease Control and Prevention,
Effects of Blood Alcohol Concentration; (6.) U.S. Coast Guard,
Office of Auxiliary and Boating Safety 2013 Recreational Boating
Statistics COMDTPUB P16754.27

The concept of duress is a well-established element of our legal
system. In general, duress can include threats of violence,
economic coercion, or other forms of pressure. In business
dealings, people sometimes use the cliché that they felt as if a
“gun was pointed at their head.” Duress is a legal defense. That
means it is presented to justify why someone acted a certain
way in a given situation. The defense is based on the reasoning
that undue pressure can make people do things they wouldn’t
ordinarily do.

A criminal defendant might raise the defense of duress, arguing
that his false testimony was the result of being threatened with
bodily harm if he told authorities what really happened. In a non-
criminal context, a real estate agent might argue that a contract
should be deemed void because she signed it under duress,
believing that signing it was the only way to keep her job at a
brokerage firm.

The concept of duress was recently raised in a marine salvage
action. A boat was anchored in Buzzard’s Bay, Massachusetts.
The depth sounder malfunctioned and the boat drifted and ran
aground. Shortly thereafter, the vessel owner entered into a
salvage agreement with a local towing company. The vessel
owner later attempted to rescind the contract on the grounds
that he signed it under duress.

Although duress is a concept that crosses the boundaries of
many areas of law, salvage on the water is a unique element of
maritime law. Salvage is deemed to take place when someone
acts voluntarily to save a vessel in peril and such action is
successful. Dating back to the age of sail, salvage is based on
the premise that one who risks life and limb to assist another
vessel and its cargo should be monetarily rewarded.

In the case at hand, the matter was originally slated to be heard
by a panel of three arbitrators. The decision of the arbitrators
would be binding. After the arbitration got underway, the vessel
owner filed a preliminary injunction against the arbitration. In
general, injunctions are legal remedies that call for action (or
refrain from action) of some kind, such as an injunction to stop
the closing of a school. The vessel owner wanted the salvage
agreement to be declared unenforceable on the grounds he
entered it under duress.

The lower court hearing the matter ruled against the vessel
owner, denying the injunction. The arbitrators ruled in favor of the
towing company and ordered the owner to pay a salvage award
of roughly $60,000. On appeal, the higher court upheld the lower
court’s decision. The higher court pointed out that the vessel
owner hadn’t challenged the validity of the arbitration clause in
the complaint and that it was for the arbitrators to resolve the
duress claim.

Pivotal in the matter was the distinction between salvage and
towage. The parties were in dispute as to which of the two took
place here. A fundamental difference between towage and
salvage is that the former is generally billed at a set rate. For
instance, three hours of towing services billed at $200 an hour
would amount to towage bill of $600. In contrast, a claim for 20%
of the value of a $100,000 sportfisherman grounded hard on a
submerged barge would amount to a salvage award of $20,000.

The contract here contained a clause in which the parties agreed
to binding arbitration. Arbitration is a form of alternate dispute
resolution commonly used in maritime law. While a comparison
between arbitration versus traditional litigation could fill volumes,
one of the attributes of maritime arbitration is that it is supposed
to result in quicker and more economical resolutions of disputes
than courtroom trials.

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