Thursday, December 28, 2017

In the current issue of Long Island Boating World, Tim covers the
subject of jury instructions in maritime litigation. The matter involved
the litigation of a
boating accident injury by the operator of a
personal watercraft (commonly referred to as jet ski or PWC) that
was involved in a collision with a pleasure boat. The crash occurred
on a lake, but would have been treated no differently had it occurred
in open navigable water. Jury instructions in the instant matter
involved application of the navigation rules, also referred to by many
as rule of the road, collision regs, or col regs. The business of how
a judge instructs members of a jury is a key aspect of litigation in
admiralty & maritime jurisdiction, whether involving Jones Act injury
cases, cruise ship accidents, or pleasure boats. The bottom line is
that jurors are faced with the matter of determining the respective
faults of parties involved according to certain prescribed rules. At
trial, a judge will outline for jurors what Coast Guard rules and
regulations they should consider when determining which vessel
operator is at fault. It is only after this phase of trial is complete that
the court can address the issue of economic and non-economic
losses for the injuries of claimants and plaintiffs. In this particular
jetski accident, jury instructions hinged upon whether the conduct of
the two boat operators would be governed by the rule for overtaking
vessel, which would have been instrumental in determining rights
and duties.

Jury Instructions in a Boating Accident Lawsuit

By now, many boaters in the Northeast are finishing up with shrink
wrapping, double-checking engines, and settling in for the winter.
Thoughts may shift from memories of raft-ups and weeknight races
to boat shows and good books for the winter. But the learning curve
never stands still for boaters. There’s always something new to
read about, from navigation electronics to safety equipment.
Because of all their knowledge in this area, boaters can be very
astute jurors in cases arising on the water. In contrast, if someone
who doesn’t spend time around boats is called for jury duty in a
boating-related lawsuit, he or she might not be as familiar with
such things.

While topics such as aids to navigation and running lights are of
interest to one planning a weekend cruise up the Hudson, a person
who doesn’t own a boat might not give much thought to them. Take
for instance someone merely minding his own business as a store
manager, summoned to court as a juror and placed in the position
of having to decide who was right or wrong in a boating accident.
This poor fellow must quickly develop some basic understanding of
navigation rules and other aspects of boating.

The business of presenting instructions to jurors could seem
straightforward enough in most instances. On TV shows, they make
it look easy. But in situations where the subject matter involves
specialized knowledge, such as boating, things could be a little
trickier. In giving instructions, how much information should be
presented to jurors? What information is relevant? What information
is extraneous, where it might only confuse non-mariners?

If this phase of a trial is conducted well, a juror could walk away
thinking, “I learned something interesting today and was part of an
important decision.” If it’s done poorly, a juror could think, “They’re
talking about stand-on vessels, give-way vessels, rule no. 15 for
crossing situations, green running lights visible 22.5 degrees abaft
the starboard beam, etc. Why can’t they lay this stuff out more

Jury instructions became a point of contention in an accident
involving a personal watercraft (PWC) and a boat on a lake in
Kentucky. The PWC operator was in the middle of the lake in
choppy water. She decided to come closer to shore. After running
parallel to the shoreline for several minutes, she looked over her
left shoulder and was struck by the boat, resulting in a fracture of
her lower right leg. She denied that the boat was trying to overtake
her at the time.

The jury was given the following instructions: (1) It was the duty of
the boat operator to exercise ordinary care for his own safety and for
the safety of other persons using the waterway. This general duty
included the following specific duties: (a) keeping a lookout ahead
for other vessels in front of him or so near his intended line of travel
as to be in danger of collision, (b) having his boat under reasonable
control, (c) driving at a speed no greater than was reasonable and
prudent, having regard for the waterway traffic and for the condition
and use of the waterway (d) exercising ordinary care generally in
order to avoid endangering the life or property of any person on the
waterway, (e) yielding right-of-way to vessels ahead and to his right;
and (f) when overtaking another vessel, yielding right-of-way to that

On appeal, the PWC operator argued that the lower court erred by
failing to give her proposed instructions, as federal law imposes
additional duties upon a vessel “to assume she is overtaking and
act accordingly if there is any doubt” and to remember that “any
subsequent alteration of the bearing between the two vessels”
does not transform the “overtaking vessel” into a “crossing vessel”
or relieve the overtaking vessel of the duty to keep clear of the
overtaken vessel “until she is finally past and clear.” In essence, the
argument here was that jury instructions should have been based
on respective headings and treatment of the boat as an overtaking
vessel. The appeals court did not agree. It maintained the lower
court’s position that jury instructions were instead to be based on a
duty of ordinary care owed by the boat operator.

While this case illustrates a court’s examination of jury instructions
in a boating accident, it also demonstrates something else. In
these types of cases, jury instructions aren’t always cast in stone. It’
s up to attorneys to present compelling arguments in court as to
why certain information should or should not be presented to jurors.

Kelley v. Poore, Case No. 2008-CA-002409 Court of Appeals of

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