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 a court.
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. A good maritime trial attorney should know how to ferret the truth
out of a well coached witness...the one who lie while respectfully ending every sentence
with, "Your Honor" and "Yes, Ma'am."
Monetary compensation for the victim in
a boating accident can consist of
economic losses and non-economic
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.
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