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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.


Tim Akpinar Contact Information:                

   







© 2006 by Tim Akpinar - All Rights
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The contents of this website may not be
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(718) 224-9824
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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.  
Conclusionary
questions are ones
that require the
witness form an
opinion they aren't
suited to make.
"Was the captain
reacting to withdrawl
from his anti-
depressants?"
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 vessel?"
Compound questions
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 vessel?"
These are just a few
exceptions. You can
see the entire list of
objections, including
the Hearsay Rule
under the Federal
Rules of Evidence.