Boating Accident Law

From The Ensign, Magazine of the United States Power Squadron
Reprinted with the permission of The Ensign

Tim Akpinar

Aside from being terrible personal experiences, boating accidents can be stressful and difficult legal experiences.
One of the reasons for this is the application of some arcane elements of maritime law, some of which date back to
the age of sailing ships. A good example is something known as limitation of liability. Here’s how it can operate:

Enjoying an evening cruise, the owner of a new trawler and their friends hear an outboard engine in the distance. With
binoculars, the owner sees an outboard skiff in the darkness. Curiosity turns to concern when he realizes the
operator of the skiff has not seen the trawler. And concern turns to terror a few moments later when everyone
realizes the skiff is going to collide with the trawler. As the screaming guests drop their paper plates and run to the
transom, the skiff crashes through the main salon of the trawler and lodges there like an unexploded torpedo.

Miraculously, everyone is alive, but the trawler is effectively demolished and a few of her passengers need serious
medical attention. It comes as no surprise that the family from the trawler and their guests sue the operator of the
skiff for serious injuries and destruction of the trawler. But in an aggressive legal maneuver, the attorneys for the skiff’
s insurance company file for limitation of liability. In doing so, they essentially tell the family on the trawler and their
guests, “Good luck suing us…because we’re going to try to get the court to limit your monetary recovery to the post-
accident value of our insured’s skiff.” The post-accident value of the skiff is about $800 for a three year old
horsepower engine salvaged from the wreckage. The family from the trawler and their guests are shocked and
outraged at the prospect of an $800 award to compensate them for over a million dollars worth of injuries, medical
expenses and property loss. They wonder how such a tactic could be permissible in this day and age.

The answer lies in the concept mentioned above, limitation of liability, memorialized as law in the Limitation of
Shipowner’s Liability Act of 1851. In basic terms, the act says that in the event of an accident or loss to a ship, the
owners of the ship could limit their liability to its residual value plus freight pending, provided that they did not have
knowledge or privity of the negligence or dangerous condition causing the loss. At the time the law was enacted,
Congress wanted the United States to become a strong maritime power with a large merchant fleet. The act was
meant to encourage ship owners and their investors to engage in cargo and passenger transport. Without such an
act, a ship owner might think, “I could borrow money and build this magnificent clipper ship. It will carry diamonds,
currency, spices and other valuable cargo across the ocean. But if my ship strikes a reef and sinks, the cargo owners
can sue me for ten times the value of my ship. I could be ruined overnight.”

The purpose of the law was to foster mercantile growth, not to allow the wrongdoer in a boating accident to limit
monetary accountability to the victim. But it’s difficult to come to grips with how the same law came to be applied in
boating and jet-ski accidents.

However, in several Supreme Court and Circuit Court decisions, it was held that boating accidents could be subject to
maritime law if they met a number of conditions. If a boating accident occurred on navigable waters and it had the
potential to disrupt maritime commerce, a federal court could hear the case and apply maritime law. And since
limitation of liability is part of U.S. maritime law, there you have it. This is not to say that defense attorneys will try to
invoke limitation of liability in every boating accident. However, it’s a tactic that an aggressive insurance carrier can try
to use.

Other interesting elements of maritime law that can apply to boating accidents include the use of presumptions. In our
legal system, a presumption is generally a premise that we can assume will be applied in a particular situation. For
instance, one of the cornerstones of the American criminal law system is the presumption that a defendant is
presumed innocent until proven guilty.

A commonly used presumption in boating accidents is the Pennsylvania Rule. Under the rule, if a boat violates a safety
standard governed by statute, its operator has the burden of demonstrating that violation of that statute could not have
caused the accident. For instance, if a vessel gets into an accident while failing to use running lights, which are
required by Coast Guard regulations, the operator must show that the failure to use running lights could not have been
the cause of the accident. If a vessel operator violates the rules of the road, or operates a vessel while intoxicated, he
or she must show that it was not the violation of that statute or regulation that resulted in the accident.

In evaluating the individual circumstances of each case, courts have to consider the relationship between the
statutory violation and manner in which the accident arose. If a vessel was operated without the proper number of
PFDs, that’s clearly a violation of Coast Guard safety regulations. If that vessel is struck in the rear by an overtaking
vessel, it’s fair to say that it wasn’t the insufficient number of life preservers that caused the accident…it was the
violation of the rules of the road by the overtaking vessel. It should have given way. The violation of the rules of the
road by the overtaking (or give-way) vessel is clearly a statutory violation. And it’s clearly the cause of this accident.
While the court would not look favorably upon the failure to carry sufficient PFDs by the stand-on vessel, it would not
conclude that the shortage of PFDs caused the accident.

The evidentiary burden imposed by presumptions can sometimes shift quickly between vessels in close quarters,
where a vessel that was the stand-on vessel can become give-way the give way vessel in a matter of moments,
depending upon the headings and evasive actions of the vessels. For instance, in some parts of the Mississippi River,
tugboats and larger ships must negotiate passages and bends with each other…in uncomfortably tight encounters
that can bring into play multiple provisions of the inland rules, and the burden of the Pennsylvania rule can shift from
one vessel to another in a matter of moments.

Another important presumption of maritime law, the Oregon Rule says that when a moving vessel collides with a
stationary object or vessel, there is a presumption that the moving vessel is at fault. Maritime law actually uses a
different words for the act of a vessel hitting another vessel (collision) and a vessel hitting a stationary object, such as
a pier (allision).

The presumption of fault can be rebutted and move away from the moving vessel if the vessel operator can show the
stationary object presented a hazard to navigation. Think about instances where barges, dredges, or pile driving boats
might be tied up alongside bridges. If such barges are painted in dark colors, not adequately illuminated at night, and
they block the passageway between the pylons of a bridge, that can clearly be argued as a hazard to navigation,
especially if the passage is a high-traffic corridor.

Another important aspect of maritime law is the apportionment of liability, or fault, between the parties. This concept
is called comparative negligence and makes the parties liable to each other for their respective share of fault. Most
states follow the comparative negligence rule, as opposed to the contributory negligence rule. Contributory negligence
means that a claimant may not bring a claim if he or she was at fault. With boating accidents, as well as other
accidents, it is not always possible to declare one side being 100% blameless. The respective fault might be 75% -25%,
meaning that one party was three quarters to blame and the other was one quarter to blame…or some other figure.

It can sometimes be difficult to apportion liability in boating accidents because the evidence might not present itself as
readily as in an automobile accident. There are no skid marks, no traffic cameras, or other readily available evidence
the way there might be on land. However, courts need to consider all material and relevant evidence in determining
liability in a boating accident. This includes evidence of violations of the rules of the road, alcohol impairment, operator
error, mechanical failure, reckless operation, lack of experience… and other factors.

Since considerable time may have elapsed between an accident and a trial, a court can find itself in the unenviable
position of trying to determine what really happened on a fateful night twenty four months ago. In the time span
between the accident and the trial, attorneys for the parties would have been engaged in discovery…the process of
gathering information and evidence for trial. Evidence that the court may consider can consist of accident reports,
witness statements, physical examinations, written reports such as a surveyor’s investigation, and forensic or expert
testimony. The discovery process employs fact-finding tools such as depositions, interrogatories, examinations under
oath and witness affidavits.

Naturally, there are more legal issues that arise in a boating accident than can be covered in a brief article. These
include jurisdictional issues, determination of damages, establishing remedies, issues of civil procedure, and more.
However, I had hoped to cover some of the important concepts of maritime law to give readers a better understanding
of the legal issues that can arise in a boating accident.  

Tim Akpinar is a maritime attorney who represents recreational boaters and professional mariners throughout the U.
S. in collision, salvage, injury, and property loss cases. A former marine engineer, Akpinar teaches law at SUNY
Maritime College in Throggs Neck, N.Y. ▪ The Society of Naval Architects & Marine Engineers ▪ Maritime Law
Association of the United States ▪ - - 718 224 9824  

Boating Accident Law

by Tim Akpinar

Reprinted with the permission of The Ensign, magazine of the United States
Power Squadron