Up to thirty years ago, negligently operating a pleasure vessel…even operating a vessel under the influence of alcohol…was often not subject to State laws and often not even subject to Federal law depending on the location of the accident or negligent act. For example, driving a vessel under the influence of alcohol was not a crime in California. As the number of people utilizing vessels increased and the type of vessels available to the public enlarged to fast moving maneuverable craft such as jet skis and wind surfers, the various governmental agencies eventually passed and enforced increasingly stringent laws pertaining to vessels and their operation.
The United States still has far less restrictions on the use and operation of pleasure vessels than almost any other nation. In most of Europe, for example, any operator of any boat or ship must be licensed and trained to operate the vessel whether for profit or pleasure. In the United States, unless one is charging for the use of the vessel, one needs no particular license to operate the vessel.
As one European friend told the writer, “It’s amazing. In Sweden we have to take months of courses and pass a test. Here, you buy the boat, pay the registration, turn the key and can go wherever you want with whoever you want.”
Note that if one receives compensation for use of the vessel, even if it is contribution towards operating expenses, then both the vessel and the captain must be licensed by the United States Coast Guard. These licenses require passing a series of tests and background checks.
For most pleasure boat users, the lack of license and the relative freedom of operation on the seas may create a feeling that liability may be less than operating a vehicle on land. It is true that the laws on land for torts are different than those at sea and there are different forums for resolving disputes, but it is an error to assume that the applicable rules of the road do not impose significant liability for failure to operate the vehicle safely.
This article shall outline the essential law to know for accidents involving vessels in United States waters. This article will not deal with the applicable laws pertaining to commercial vessels.
Basic Definitions and the Status of Vessels:
Boats include pleasure crafts of various kinds and types, as well as motorboats such as speedboats, runabouts, cabin cruisers, and outboards, steam yachts, sailing yachts or sailboats (with or without auxiliary engines), rowboats, jet skies and canoes.
In the eyes of law, navigation for recreation and pleasure and navigation for commercial purposes are of equal importance. Small crafts and large steamers have the same rights to navigate navigable or public waters. Each one owes the other the duty of observing due care so as to avoid injuring the other, and injury resulting from the violation of this duty, whether intentional or through negligence, carries with it the legal responsibility of covering damages.
Under the rules of navigation, there is no legal distinction between vessels operated for pleasure and those operated for profit, between large boats and small ones, or between those with a numerous crew and those operated by one person, and the very smallness of a boat or the fact that it is a pleasure craft does not entitle the owner or operator thereof to cast all the burdens of avoiding collision on a larger vessel.
However, the relative size and maneuverability of boats may be taken into consideration in determining fault in a collision. Moreover, large, fast, and powerful vessels have a duty not to travel upon navigable waters at a speed that will produce displacement waves or suction and cause injury to other properly handled craft. The operators of the larger vessel are required to avoid such risk by ceasing normal operation of their vessel until the smaller boat has passed outside the danger zone.
What Laws Apply?
Pleasure crafts, depending on their size, type, and place of navigation are governed by federal statutes, which apply to public as well as private vessels of the United States. Special statutes regulating motor boats are enacted to promote safety in recreational boating. There are various state statutes that govern pleasure craft on the navigable waters of the state. State laws and local laws, however, shall not contradict federal rules on the same subject. Federal law preempts state law.
Search and Seizure Restrictions Not Applicable to Boats:
Federal statute authorize customs officers to board “any vessel” at any place in the United States or within customs waters to examine the vessel’s manifest and other papers. The officers can search any vessel, stop such vessels and use all necessary force to compel compliance. Likewise, officers of the Treasury Department are statutorily empowered to hail, stop, and board “any vessel” in the enforcement of the navigation laws and to arrest any person violating such laws. Most States, including California, provide that Fourth Amendment Rights to require a warrant before search and seizure do not apply to most vehicles most of the time, including boats. Federal law specifically allows the Coast Guard to stop and search any vessel for safety inspection or otherwise and they often come aboard armed.
The enforcement of the federal navigation and boating laws on and under the high seas and waters subject to federal jurisdiction are the responsibility of the Coast Guard. The Coast guard is empowered to make inquiries, examinations, inspections, searches, seizures, and arrests. State statutes and local ordinances empower various agencies and officials to enforce state boating laws and local boating laws.
The Coast Guard Auxiliary is a nonmilitary organization composed of motorboat and yacht owners and other qualified persons. Some of the services provided by the Auxiliary are safety checks, harbor patrols, safe boating courses, search and rescue, and marine environmental protection. The purpose of the Auxiliary is to assist the Coast Guard as authorized by the Commandant, in performing any Coast Guard function, power, duty, role, mission, or operation authorized by law. The Coast Guard may utilize for any purpose incident to carrying out its functions and duties, any motorboat, yacht, aircraft, or radio station placed at its disposition for any of such purposes by any member of the Auxiliary.
There are a number of federal statutes that govern pleasure crafts on the basis of their size, type, and place of navigation. These statutes apply generally to all public and private vessels of the United States. The Inland Navigation Rules (33 USCS § 2001) provide navigation rules for harbors, rivers, and inland waters. The Rules apply to all vessels upon the inland waters of the United States and to vessels of the United States on the Canadian waters of the Great Lakes to the extent that there is no conflict with Canadian law.
Moreover, there are special statues that deal with regulation of ‘motorboats’, their numbering, either by the states or the Coast Guard, in order to promote safety in recreational boating and to encourage uniformity of regulation among the states and the federal government. Pursuant to 46 USCS § 4302, the Secretary of the department in which the Coast Guard is operating has the power to prescribe regulations establishing minimum safety standards for recreational vessels. Penalties are prescribed for violations of the Inland Navigational Rules.
States and local authorities can make rules and regulations for the safety and convenience of vessels in local ports and channels. However, these rules and regulations must not contradict federal rules on the same subject matter. These rules and regulations are binding on foreign and domestic vessels.
There are various state statutes and safety regulations enacted by states that govern pleasure crafts on the navigable waters of the state. These statutes govern matters such as equipment requirements, operation, licensing, and numbering. Penalties to the owner or operator of the boat for violation of statutory provisions are also included in the statutes.
In addition, counties and municipalities of many states have enacted laws or ordinances governing the operation of vessels generally or pleasure craft in particular upon waters within such political subdivisions. Such local laws must not be inconsistent with state statutes. The local laws are unconstitutional and unenforceable if they exceed the power granted to the municipality.
Pursuant to 46 USCS § 13102, the State Recreational Boating Safety Program includes education, assistance, and enforcement activities conducted for maritime casualty prevention, reduction, and reporting for recreational boating. The federal Secretary of Transportation carries out a national recreational boating safety program. The purpose of the program is to encourage greater participation and uniformity in state boating safety efforts and to permit states to assume a greater share of boating safety education, assistance, and enforcement activities. The Secretary establishes guidelines and standards for the program. The Secretary shall consider factors affecting recreational boating safety such as overcrowding and congestion of waterways because of the increasing number of recreational vessels operating on those waterways and their geographic distribution, the availability and geographic distribution of recreational boating facilities in and among applying States, and State marine casualty and fatality statistics for recreational vessels. The Secretary shall consult with the Secretary of the Interior to minimize duplication of efforts to effect the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460l-4-460l-11), the Federal Aid in Sport Fish Restoration Act of 1950 (16 U.S.C. 777-777k), and with the guidelines developed under those Acts. The Secretary shall maintain environmental standards consistent with the Coastal Zone Management Act of 1972 (16 U.S.C. 1451-1464) and other laws and policies of the United States intended to safeguard the ecological and aesthetic quality of the waters and wetlands of the United States. A State whose recreational boating safety program has been approved by the Secretary is eligible for funds to assist that state in developing, carrying out, and financing its program.
Liability for Damage Cause by Vessel Operation:
Natural bodies of water are classified as either navigable or non-navigable. State v. Korrer, 127 Minn. 60 (Minn. 1914). Navigable waters embrace all bodies of water public in their nature. According to common law, all waters are divided into either public waters or private waters. In the former, the proprietorship is in the sovereign and in the latter the proprietorship is in the individual proprietor. The title of the sovereign is in trust for the benefit of the public.
The right of the public to navigate the water is supreme and it includes the right of boating. Witke v. State Conservation Com., 244 Iowa 261 (Iowa 1953). Boating for pleasure is considered navigation as well as boating for profit. Also, navigability for pleasure is as sacred in the eye of the law as navigability for other purposes. State v. Korrer, 127 Minn. 60 (Minn. 1914). The term “navigable” applies to all the streams that are in fact navigable. State ex rel. Meek v. Hays, 246 Kan. 99 (Kan. 1990). Note that in such case, the title of a riparian (land) owner is limited to the bank of the stream.
The specific criteria to be used in determining whether particular bodies of water are deemed navigable for purposes of vesting the state with title to the water beds are that bodies of water are navigable and title to the beds under the water are vested in the state if:
- the bodies of water were used, or were susceptible of being used, as a matter of fact, as highways for commerce;
- such use for commerce was possible under the natural conditions of the body of water;
- commerce was or could have been conducted in the customary modes of trade or travel on water; and all of these conditions were satisfied at the time of statehood. State ex rel. Meek v. Hays, 246 Kan. 99 (Kan. 1990).
Liability for Operation of Vessel
One who operates a boat in waters frequented by other boats is obligated to maintain such a lookout as a reasonable prudent person would exercise to discover and avoid injury to others lawfully using the waters. Willams v. McSwain, 248 N.C. 13 (N.C. 1958). The operator is charged with having the knowledge sich a lookout would disclose. However, the duty of those in charge of a boat to maintain a lookout is limited to objects on or above the surface of navigable waters.
All persons have a right to use the navigable waters of a state so long as they do not interfere with other citizens’ use. However, the right to use navigable waters is subject to regulation by a state under its police power.
The party who has been wronged by a vessel has his right of action against the vessel in rem, or against the vessel and its owner in personam. Nelson v. Allis, 181 Misc. 310 (N.Y. City Ct. 1943). With respect to the application of these principles, no distinction is made between large and small vessels, so that in determining the liability of an owner or operator of a motorboat for personal injury or property damage, motorboats are governed by the same rules and standards as larger or different craft.
When there is no separate legislation regulating the operation of leisure craft upon public streams, the fundamental common law tort principles are applicable. Nugen v. Hildebrand, 145 W. Va. 420, 425-426 (W. Va. 1960). At common law, the owner of a vessel is liable for injuries caused for any tort, whereas under maritime law, the vessel as well as the owner is responsible. The overwhelming majority of courts hold that common law claims fall within the scope of laws and regulations expressly preempted by the Federal Boat Safety Act of 1971.
Persons in charge of ships or vessels must be careful to avoid injury to others. The standard of ordinary care is statutorily applied to boats and the operation of boats. Clipp v. Weaver, 451 N.E.2d 1092 (Ind. 1983. The captain should observe reasonable care and prudence, not only against present dangers, but against impending perils. The Adventuress, 214 F. 834, 838 (D. Mass. 1914. He/she must take reasonable measures of precaution.
The owner of an excursion motorboat (thus for hire) has been held to be governed by the duty of highest degree of care that a common carrier has a to exercise and is liable for even the slightest negligence. Loc-Wood Boat & Motors, Inc. v. Rockwell, 245 F.2d 306 (8th Cir. Mo. 1957). However, a boat owner as a gratuitous bailor (not for hire) owes merely a duty of ordinary care toward a third person who was injured aboard the boat while it was being used by the bailee. Hogan v. Hellman, 7 F.2d 949 (D. Cal. 1925). Note that any form of consideration paid to the owner of the boat can alter the level of duty required. See our article on contracts.
A vessel owner’s liability may be predicated on his negligence in entrusting his vessel to an incompetent operator. Boland v. Suncoast Rent-A-Scooter, Inc., 439 So. 2d 916 (Fla. Dist. Ct. App. 2d Dist. 1983). The Limited Liability Act limits the liability of an owner of a vessel to the value of the vessel and its freight for any damage done without the privity or knowledge of such owner. Sisson v. Ruby, 497 U.S. 358 (U.S. 1990)
Motor boats or other watercraft operated on inland waters or the waters connected with the Great Lakes should not be operated on any of said waters in a reckless manner or at an excessive rate of speed so as to endanger the life or property of any person in or on said waters. Torrez v. Willett, 366 Mich. 465 (Mich. 1962). Further, a person should operate a motor boat at a rate of speed less than that which will permit him to bring it to a stop within the assured clear distance ahead.
An operator of a boat owes a duty of reasonable care to a passenger. Clipp v. Weaver, 451 N.E.2d 1092 (Ind. 1983). One who operates a boat in waters frequented by bathers or other boats is obligated to maintain such a lookout as a reasonably prudent person would exercise to discover and avoid injury to others lawfully using the water. Williams v. McSwain, 248 N.C. 13 (N.C. 1958). The duty rests on the driver in the operation of his motorboat to exercise reasonable care for the safety of his guests and to avoid exposing them unreasonably to danger. If the driver fails to observe that duty for the safety of a passenger he is guilty of negligence. Estate of White v. Beauchamp, 348 Mich. 159 (Mich. 1957).
Principles of proximate cause are applied in cases involving the liability of a motorboat owner or operator for injuries or damages. Foreseeability is not a test of proximate cause. Dellwo v. Pearson, 259 Minn. 452 (Minn. 1961). In Dellwo v. Pearson, 259 Minn. 452 (Minn. 1961), the court held that negligence is tested by foresight but proximate cause is determined by hindsight. Thus, if your vessel collides with another and causes that vessel to smash into a dock causing a person on the dock to fall and injure himself, you are liable for that injury if your negligence caused the initial collision.
The admissibility of evidence in a personal injury, death, or property damage action against a motorboat owner or operator is governed by the general rules of evidence followed in other negligence actions. Whether negligence was the cause of a collision between vessels is a question of fact.
The party seeking to invoke maritime jurisdiction in the federal courts must show a substantial relationship between the activity giving rise to the incident and traditional maritime activity. Sisson v. Ruby, 497 U.S. 358 (U.S. 1990). When it extended admiralty jurisdiction to injuries on land caused by ships on navigable waters, Congress directed that the admiralty and maritime jurisdiction of the United States extends to and include all cases of damage or injury caused by a vessel on navigable water. Jurisdiction is lacking when the wrong does not bear a significant relationship to traditional maritime activity. Sisson v. Ruby, 497 U.S. 358 (U.S. 1990)
For admiralty jurisdiction to exist in federal court, the alleged wrong must:
- occur on or over navigable waters, and
- bear a significant relationship to traditional maritime activity.
These two requirements are known respectively as the situs and the nexus requirements. Smith v. Knowles, 642 F. Supp. 1137 (D. Md. 1986).
The test for deciding whether an activity is substantially related to traditional maritime activity has four factors:
- the functions and roles of the parties;
- the types of vehicles and instrumentalities involved;
- the causation and the type of injury; and
- traditional concepts of the role of admiralty law.
Sisson v. Ruby, 497 U.S. 358 (U.S. 1990)
Not every accident in navigable waters that might disrupt maritime commerce will support federal admiralty jurisdiction. However, when a potential hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime activity, such as navigation of boats, admiralty jurisdiction is appropriate. See Sisson case, above.
The alternative to the Federal jurisdiction would be jurisdiction in the State court under more traditional rules of tort negligence. The process is usually slower but still can provide relief.
Most boat owners now carry liability insurance much as automobile drivers do, but unless a financing company is involved, this is not required by law as is automobile insurance. Vessel insurance is almost ala ways worthwhile since the liability facing the negligence operator can be far more substantial than that facing the average person culpable in an auto accident. Consider: two boats colliding with four or five persons in each can result in death or injury to ten people, often with children involved. Anyone who has visited a lake or bay during a holiday must realize that far too many boat owners ignore the basic rules of the road and, indeed, are often in a celebratory mood and prone to drink to excess.
Fishermen are also prone to accidents since they tend to go where the fish are supposed to be, regardless of weather conditions or nearness to dangerous shorelines. It is an oddity of human thinking that we often take greater chances when seeking to enjoy ourselves than when seeking to earn our living. One professional fisherman know to the writer commented that on the average weekend he sees amateurs taking chances at sea that he would never take on his far more sea worthy vessel.
But whether there is insurance or not, liability will lie for negligence at sea and both federal and state courts provide ready relief.