MARITIME LAW NEWS

Second Death in Lake Louise Boating Accident

Langly Brown, Jr., who was taken to the Orlando Regional Medical Center after a boating accident on Lake Louise on June 23rd, has died.

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Scott Michael Driver charged with Homicide of Edward Clark in Boating Accident

In an unusual turn of events, Scott Michael Driver, 30 of the 8600 block of Madison Avenue in Jacksonville has been charged with homicide in the death of Edward Clark over Easter weekend.

A 11:30 p.m. on Saturday, April 15, 2006 Driver took his friends Edward and Lucilla "Mary" Clark aboard his 10 foot aluminum boat for a trip to the Jacksonville Landing. They launched from Madison Avenue into the Ribault River, and then proceeded out the Trout River into the St. Johns. But they encountered rough weather in the St. John's River where the boat capsized near Lions Club park on Richard Denby Gatlin Road in Arlington. Driver and Lucilla Clark were able to grab life vests and swim to shore in "an hour or two" but they lost sight of Edward Clark, 46, in the darkness. When last seen he was trying to save the family dog. His body was found a week later. The dog also died in the accident.

The weather on August 16, 2006 was average wind speed 12.0 knots, maximum wind speed (2 minute duration) was 20 knots, from the west-southwest (230 degrees true), the peak wind speed was 24 knots from the southwest by west (240 degrees true). On August 15 it had been average wind speed of 10.4 knots, maximum wind speed (2 min duration) 17 knots from the Southwest (250 degrees true). The peak wind speed had been 21 knots from the Southwest (240 degrees). If Driver had hugged the western shoreline of the St. Johns he would have been protected from most of the heavy weather. See http://www.ncdc.noaa.gov/oa/ncdc.html

A map of the accident can be found at http://www.mapquest.com/mqproxy/44a29b47-00063-051cc-658ea398&rnd=2732

According to Mary Clark, who was interviewed by First Coast News, "the motor died. Next thing I know the boat just... (Makes flipping motion) with all of us in it. I was the first one to go under. And my husband pulled me up by my hair and that's all I remember."

At the time of the accident she said: "The boat started getting water in the rear end of it -- where the motor was -- then the waves were so hard, that the boat was [bouncing up and down] -- the water was coming in the front of it. Next thing I know, we just went over."

Lucilla was the only one wearing a life jacket. "I fell out, I was like, 'Oh, God, please let me make it out of here.' That water was cold -- it felt like ice cubes in that water," she remembered. "I kept going under three or four times, but I kept bouncing back up. Then I'd go back down, and I was like, 'Oh God, please let me go home!'" she said.
Driver pulled her ashore and ran for help. Lucilla never saw her husband. "He was a good swimmer, I don't understand it. He's swum a lot of deep waters in his entire life. I don't understand it," Lucilla Clark said.

In order to be charged with a vessel homicide the State of Florida must prove the operator of a boat "operates any vessel...in willful or wanton disregard for the safety of persons or property at a speed or in a manner as to endanger, or likely to endanger, life or limb, or damage the property of, or injure any person."

In this case, the State is alleging that the boat was overloaded and that it had insufficient safety equipment on board. It is also said that the boat was old and flimsy and full of patches and plugs. While not charging that alcohol caused the accident, the State says that Driver and others were consuming alcohol "throughout the day." While these are bad things, and certainly constitute negligence, can they truly be said to be "willful or wanton disregard for the safety of persons" or "in a manner as to endanger, or likely to endanger...or injure any person"?

Mary Clark is happy that Driver has been charged. "Makes me feel better. At least he won't be out there to do it again. I just hope he don't get out for what he done. He deserves to get what he gets."
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Apparent heart attack claims life of Evelyn Eckloff, 66

Evelyn Eckloff and her husband were boating in Porterfield Lake in Humboldt Township, Michigan over the weekend when their 12 foot aluminum boat overturned. The two of them were able to swim about 100 yards to the shore but Mrs. Eckloff died shortly thereafter of an apparent heart attack.

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Joanna Snow, 37, of Paducah and one other killed in Kentucky Boating accident

Two people were killed and three others were injured when a fishing boat allided with a rock wall at 0320 (3:20 a.m.) on Lake Barkley in southwestern Kentucky on Thursday, June 22, 2006.

The wall was a half mile from the Lake Barkley State Park marina in Trigg County. The boat was carrying five people when it hit the wall.

Darkness, again, was the primary cause of the accident.

Wayne Allen Cross of Bristol dead in Late Night Hit and Run

Tennessee authorities report that Wayne Allen Cross of Bristol, Tennessee died after his boat was hit at about 1 am on Sunday, June 25th, 2006. Tennessee wildlife officer Clint Smith said another man was seriously injured.

It just goes to show that darkness is the biggest killer on the waters. What you can't see can kill you.
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Langley Brown III, 39, dead and Langly Brown, 62, his father, injured in Boating accident

Proving again that Florida's freshwater lakes are more dangerous to boaters than Florida's extensive coastline, two bass boats, each with two people on board, collided last Friday, June 23 on Lake Louise near Windermere in Orange County, Florida, killing one person and injuring another. Lake Louise is 15 miles southwest of downtown Orlando, nestled between Golden Bear Club at Keene's Point on its south, and bordered on its north and east sides by the Isleworth Golf and Country Club. It is part of the Butler Chain of lakes, some of Florida's classic largemouth bass and blugill waters. The lake is 3/4 mile long and a 1/4 th of a mile across with two small islands in the middle. To the north of the lake is Lake Butler and to the south is Lake Tibet.

The deceased was Langly Brown III, 39, from Clermont, Florida. He was pronounced dead at the scene. His father, Langly Brown, Jr. was taken to the Orlando Regional Medical Center.

"It actually looks like one of the boats was rounding a corner and they were close to the perimeter of the land area," Orange County sheriff's spokeswoman Barbara Miller said. "It's a blind bend, and it is wide open," boater Robert Patterson said. "If the one boater is not responding to the boating rules and staying in his side of the lane and the other guy is too tight, they will collide." Another boater said he has seen several close calls in the same area.

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Hadi Zulfiqar, Boy, 2 years old, died from injuries in Propeller accident

Hadi Zulfiqar was injured last Sunday, on Father's Day, when he slipped from the transom of his father's boat and was hit by the boat's propeller. It severed one of his legs. http://floridamaritimelawyer.clarislaw.com/boating-accidents/2-year-old-killed-when-propeller-severs-leg-in-daytona-boating-accident.php For the past week he has been hospitalized. Yesterday, he died from his injuries.

http://images.ibsys.com/2006/0619/9389306_200X150.jpg

Our prayers and condolences go to his family. It is a terrible loss.
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Willie Thornton, 20, of West Palm Beach dies in Airboat Accident

Here is a general rule to remember whether one is boating or airboating---it is usually safer to stay with the boat after an accident than to leave and try to make it to safety yourself.

On June 16 Thornton went airboating in the Everglades. When his boat broke down, instead of waiting for help, he decided to try to walk out. The sawgrass was over 12-foot-high, the weather was hot, and the twenty year old died, probably from exposure. He was missing for more than a day when a family member found his body.

I can't tell you how many cases I've handled where someone, after a boating accident, has decided that they are strong enough to swim to shore, swim to a passing boat, or otherwise leave their disabled vessel. In most cases, their bodies are never found.

One case was featured in Reader's Digest. A long line fishing boat was struck at night by a waterspout off the coast of Florida. Four fishermen, who were asleep at the time, found themselves on a sinking boat. They had no time to load up the life raft with fresh water. The boat sank. When the sun rose, they had no way to hydrate themselves.

The Captain, feeling responsible for the other three, saw a passing sailboat. They couldn't get the attention of the crew of the sailboat so the Captain decided to try and swim to it. He was never heard from again.

The other three became so parched, that one of them drank seawater. He died shortly thereafter. The high salt content of seawater causes the blood to turn to sludge. Death is painful, but it eventually comes. http://ga.water.usgs.gov/edu/drinkseawater.htmlThen there were two.

Finally, one of the remaining two gave up, intentionally slipped off the raft into the water, sank, and was never found again. What happened to the last man? An hour later he was rescued.

The lesson: Stay with the boat, don't drink seawater, and never give up hope!

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Joanna Stapff, 24, and world wakeboard champion Danny Hampson, 17 recovering from boating accident

Joanna Stapff is a 24 year old resident of Bermuda who was an art and communications student at the University of Miami until she was thrown from a boat wakeboarder last month. Apparently she was in the boat when it veered into mangroves and struck a tree. According to her father, Kurt Stapff, "She was in a boat and it apparently hit a tree and she was thrown overboard. She was lucky not to break her back. She did break several ribs and her lung collapsed."

She had seven broken ribs, a lacerated liver and a punctured lung.The other passenger was world wakeboard champion Danny Hampson, 17, who suffered a broken neck. After the accident she was on a respirator to help her breathe for about ten days and in intensive care for almost a month.

She has left hospital now and is recovering at home.

Five people were aboard the boat, but Stapff and Hampson were the only ones injured. The boat's operator, a 17 year old from Tavernier, Florida, was charged with operating a vessel while under the influence of alcohol.

The 18-foot ActionCraft left Whale Harbor with the driver and four passengers, including Ms Stapff and Mr. Hampson, just before sunset on Mother's Day, May 14. The accident report stated the boat was approaching a creek through a narrow cut when the driver swerved left to avoid an object in the water, then quickly corrected sharply to the right, causing a passenger to fall into him. This apparently caused him to lose control. The boat travelled about 20 yards along the edge of the mangroves until an overhanging branch snagged the poling platform, causing the boat to hit the mangroves. Ms Stapff was ejected from the boat, while Mr. Hampson fell backwards and hit the back of his head on the deck.

This is the type of case which many non-maritime lawyers think that they can handle without the assistance of a maritime lawyer, but both sides need maritime counsel. This case is full of issues concerning limitation of liability, secondary impact and joint and several liabilty which a non-maritime lawyer should not try to handle alone. To do so is a disservice to the client, and creates the risk of a malpractice situation. (See for example Mink v. Genmar Industries where a quad injured in a boating accident lost his case because maritime counsel was not associated in until it was too late).
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3 men stranded in Everglades after airboat flips

Three men were stranded in the Florida Everglades one mile south of Alligator Alley at mile marker 44 last night after their airboat flipped. One of the men was struck in the rear by the propeller in the accident.

They were rescued by members of the Broward County Sherriff's office.

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2 year old killed when propeller severs leg in Daytona boating accident

Another argument for propeller guards arose over the weekend. A 2 year old boy, Hadi Zulfiqar, was sitting with his 3-year-old brother on the back of an 18-foot motorboat when he fell off the back of the boat and onto the propeller. The accident occurred on the Halifax River in Daytona Beach, Florida.

Boat and engine manufacturers have argued for years that propeller guards will adversely affect the handling characteristics of motorboat propellers, but commercial vessels have developed and used shrouds like Kort nozzles for over 25 years to improve the maneuverability of some marine propellers.

The manufacturers have been assisted by the Coast Guard in resisting the effort to require boats to have propeller guards on them. For years manufacturers have argued that since the Coast Guard considered and rejected the use of propeller guards, they cannot be held to the standard of making them available on their boats.

However, for just as many years boat manufacturers have offered kill switches on their engines as an option, even though they are not required by the Coast Guard. Some manufacturers have reported that even though they have never sold a kill switch, they continue to offer them for sale so that they can assert as a defense in an accident that the boater "didn't buy our kill switch" which would have prevented the accident.
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William Baldwin and Wayne Sanchez injured in Hernando Beach Boating Accident

What can happen if you run aground at high speed? Two men who were taken by air ambulance to Tampa General Hospital last Friday found out. They had arm, leg and facial injuries when their boat ran aground and overturned.

William Michael Baldwin (the driver), 51, of 3335 Minnow Creek Drive, Hernando Beach and , Wayne Manuel Sanchez, 55 (a passenger), of 3336 Mangrove Drive, Hernando Beach were heading out into the Gulf of Mexico when they hit a spoil area and lost control of their 22-foot boat.
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Polk County Florida has Florida's Highest Rate of Boating Deaths

One would think that perhaps Miami or Key West would have Florida's highest rate of boating fatalities, but they would be wrong. A totally landlocked county, which has over 700 lakes (and Cypress Gardens) in it, has Florida's highest per capita rate of boating deaths----Polk County---located Southwest of Orlando and due East of Tampa holds that honor.
The reason that their rate of fatalities is so high is because fresh water lakes are preceived to be safer than the ocean and therefor people take fewer precautions. "Men fish alone and fall overboard. Women tumble off the bow of a moving boat. Two or three passengers are thrown from a small johnboat that capsizes," says Lt. Hugh Taylor, head of the Polk County Sheriff's Special Operations Section, which includes the marine unit.

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Jemmer Steher from Australia injured in Jet Ski accident off Madeira Beach, David Carr of Reddington Beach, arrested for BUI

The rider of a jet ski, Jemma Steher of Australia, was knocked off her PWC and into the water when a boat operated by David Carr ran into her. Another boater pulled Steher out of the water. She is in stable condition at Bayfront Medical Center.

David Carr of Reddington Beach was arrested and charged with one count of boating under the influence of alcohol and one count of reckless operation of a vessel after his boat ran into a jet ski in Tampa Bay.

Details still murky in deaths of Richard Hostutler and James Smith off Egmont Key

The details of an accident which caused two deaths last weekend are still murky. Richard Hostutler of Plant City and James Smith of Valrico apparently were out off Egmont Key, west of the Sunshine Skyway Bridge on a 21-foot Mako when bad weather suddenly broke out causing Hostutler's wife to fall overboard. He went into the water after her.

Smith took over driving the boat but then he too went in to assist in the rescue. Passers-by in another boat saw the woman remaining in the boat, presumably Mrs. Smith, yelling for help. Other boats pulled the three bodies out of the water, presumably Mr and Mrs Hostutler and Mr. Smith It is not known when the men died. The men's bodies were brought to shore aboard two boats, while another ferried in the wives. "We've recovered the bodies of the two males, and informed the women that their husbands were dead," Feinberg of the FWC is reported to have said.
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What is Rescue 21? Does it intrude upon your privacy?

Rescue 21 is the new name for the U.S. Coast Guard radio system formerly known as National Distress and Response System Modernization Program (NDRSMP). It is supposed to be a network of large radio beacons which would permit the Coast Guard, through triangulation, to pinpoint the location of a radio distress signal. That is, of course, a good thing but that is not all it does.
We assign Congress the responsibility of seeing whether a project like this is economically justified and some must be wondering at this point whether it is. The system was estimated to cost $250 million ($1 per person) in 1999. Today, the cost is projected at $710 million ($2.84 per person). Is that too much? I don't know. I do know that even as a law abiding citizen, I worry about surrendering too much privacy to the government.

So far, a single radio tower is operational in Atlantic City, New Jersey. It is unclear whether the tower at the Eastern Shore of Virginia is operating yet. The next one to come on line will be in St. Petersburg, Florida.

The first rescue attributed to the system was made in November 2005. Full operating capacity is estimated to occur in 2011.

The question which I have is whether this creates a whole new level of complexity for boat operators and whether I want the Coast Guard to be able to track every movement of every boat on the water. According to the Coast Guard to identify the boater's position boaters "must register for a Mobile Maritime Service Identity (MMSI) Number and connect their DSC (digital selective calling) radio to their GPS receiver." Does that mean the Coast Guard will be tracking all boat traffic the way air traffic controllers track all aircraft traffic? Can they poll your MMSI at any time and find out where your DSC radio is? Do they need a warrant to do it, or is it a public radio signal which any govenmental agency can access at anytime. Is this a mandatory system? If you don't have it on, does that mean that the Coast Guard will assume you are doing something illegal?

According to the Coast Guard "Rescue 21 will be used to protect our maritime borders. Law Enforcement and Coast Guard assets will use the VHF - FM communications suite to intercept targets of interest and pass vital information. Rescue 21 will be a conduit for providing protected communications on Coast Guard assets."

My concern is that while this is being billed as a search and rescue tool, it is really more of a national security tool. If so, how much tracking is warranted for national security? How much privacy should people have while they are in their boats?
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de Tournillon Pleads guilty to 2 counts of Manslaughter

In a surprise announcement Mark de Tournillon Sr decided to plead guilty to 2 counts of manslaughter in exchange for a recommendation of a sentence of 15 years.

De Tournillon, 46, told investigators he was going "only" 65 mph when he crashed into the Lewises' boat the night of August 20, 2005 on Smith Mountain Lake, about 100 miles west of Richmond, Virginia. He was the owner of Shoreline Marina and a 35-foot Donzi 38ZR.

The night of the accident he apparently got into an argument with the bartender at a restaurant over the right way to make a "dirty martini on the rocks." De Tournillon had at least one martini and one glass of wine, along with some painkillers that night.

Blood tests taken several hours after the accident showed de Tournillon's blood-alcohol content to be 0.12 percent -- well above the 0.08 level at which someone is presumed too drunk to operate a vehicle.

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8 Airboaters Lost in Everglades located by 3 helicopters from BSO, Miami Fire Rescue and FWC

On Friday, June 9, 2006 a man and a woman left to go airboating in the Florida Everglades. When they failed to return, a group of 6 of their friends went searching for them on Saturday in a second airboat. When they too got lost, or ran out of gas, they called 911 at about 1 a.m. on Sunday, June 11.

The second airboat was able to give GPS coordinates but because of the storm clutter from Tropical Storm Alberto, the rescue helicopter from the Broward Sheriff's Office was unable to locate them until 0530 Sunday morning.

At 1000 a.m. a helicopter from the Florida Fish and Wildlife Conservation Commission spotted the first airboat. A Miami-Dade Fire Rescue helicopter participated in hauling the people out of the Everglades and taking them to BSO's fire station on Alligator Alley, from which they were released.

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Vincent Rutowski, 7, killed in airboat crash near Sanford

The Sanford Florida area had its second serious boating accident in a week when an airboat operated by Central Florida Airboat Tours hit a snag on Puzzle Lake and ejected Rutowski into the water last Friday. This accident was fatal. Apparently there were seven passengers on the boat at the time, Vincent's parents, his grandparents, and two siblings, along with the operator, Bruce Fryer.

Fryer usually launches his boat out of the Jolly Gator Fish Camp at 4650 East State Road 46 at the Geneva Bridge and the south end of Lake Harney. The Fist Camp is just about four miles from the location where another fatal boat crash occurred on June 4th. That accident was most likely caused by two boats not seeing one another at a sharp curve in the river. William Williams was the operator of one of the boats.
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de Tournillon Criminal Trial--was alcohol the sole cause?
I've said it before, and I'll say it again---the government overattributes boating accidents to alcohol, and consistently overestimates boat speeds in boating accidents.

Mark de Tournillon Sr. is charged in the boating deaths of a Virginia couple during the summer of 2005. De Tournillon is charged with two counts of involuntary manslaughter. His boat crashed into the rear of a cabin cruiser August 20, 2005, killing Judith and Lawrence Lewis in a lake about 150 miles West of Richmond.

The government says that his blood alcohal was 0.15. He says that he crashed into the boat because the stern light was out. The government says that he was going too fast.

This sounds remarkably like the case of Brock v. Superior Construction Co. in which I appeared as maritime counsel. The lower court found that even though Brock was legally intoxicated, the absence of lights on a barge, and not his intoxication, was the sole cause of the accident. The 11th Circuit agreed and affirmed the lower court's ruling.

You can find that opinion here:

http://www.ca11.uscourts.gov/opinions/ops/200510110.pdf

Speed is a key piece of evidence in these types of cases. A naval architect with composite hull structure experience can often determine the speed on impact from the damage to the hulls of the two vessels. In the Brock case the speed on impact was confirmed by two different methods to be 22 mph---a safe speed under the conditions.

Lighting is also a factor---background lights can make a vessel virtually invisible to a boater.
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Richard Hostutler and James Smith drown in Tampa Bay Rescue Attempt

Richard Hostutler, 51, and James Smith, 47 took their wives out on a 20-foot inboard/outboard boat near Egmont Key on Saturday. At about 6:30 p.m., with Tropical Storm Alberto in the Gulf, the weather turned rough and Mrs. Hostutler apparently fell into the water. Mr. Hostutler went in after her, without taking a life jacket.

While Mr. and Mrs. Smith stayed with the boat initially, Mr. Smith jumped in the water a short time later. Both men were lost. Mrs. Hostutler was eventually rescued. She and Mrs. Smith with taken to Brandon Regional Hospital.

The accident is being blamed on strong tides and winds, with alcohol being a contributing factor.

Let me say this, if my wife or children were in distress, I would do anything to save her or them, but hopefully I'd also use my head so that all of us survived. I don't fault Hostutler or Smith for attempting the rescue. However, in this case, taking a moment to bring a flotation device could have helped save both of them.

The rule in life-saving is REACH, THROW, ROW (or motor), and GO. What does is mean?
REACH: The first thing you do is try to reach to the victim with a boat hook. If she is out of reach...

THROW: Toss her a life vest, seat cushion, bumper, or anything she can grab onto to help her float....

ROW (or motor): Try to maneuver the boat close to the victim, without exposing her to the props....

GO: Only go into the water as a final rescue method, and then, bring a flotation devise with you.

Was alcohol a contributing factor? I don't know. It is overused by Fish and Wildlife, and the Coast Guard, as a potential cause of accidents. It is almost a knee-jerk response---an accident happened, alcohol must be involved. Often they are wrong, but not always.

The most common way that alcohol causes accidents is by causing people to fall. They fall down while boarding or debarking, they fall down in the boat, they fall overboard when the boat hits a wave or wake, they lose their grip and go face first into dashboards.

The second way that alcohol causes boating accidents is it causes an early onset of hypothermia, and reduces endurance, limiting the amount of time one can tread water. If Mr. Hostutler and Mr. Smith thought that they could rescue Mrs. Hostutler and then tread water until help arrived, they were likely basing the estimate of their abilities on what they could do in a pool---not in the Gulf of Mexico near Egmont Key (which is where the Tampa Bay pilot station is, west of the Sunshine Skyway Bridge).
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Rock, Paper and Scissors to Settle Lawsuit Issue

The New York Times recently reported that a Federal Judge in Orlando had ordered two attorneys to settle where a deposition was to be held by engaging in a game of "Rock, Paper, and Scissors." Here is a copy of the order:

ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of
alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall
convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they
shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave.,
Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who
shall act as an attendant and witness. At that time and location, counsel shall engage in one (1)
game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the
location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the
period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may
be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in
Courtroom 3, George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue, Orlando, Florida 32801.

DONE and ORDERED in Chambers, Orlando, Florida on June 6, 2006.

 Gregory A. Presnell
United States District Judge

You can find the order yourself at Case 6:05-cv-01430-GAP-JGG Document 106 Filed 06/06/2006.
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NCL's Norwegian Crown run aground off Bermuda--Hull damage unknown

Norwegian Cruise Line's vessel the Norwegian Crown ran aground off the coast of Bermuda yesterday on the short trip between St. George and Hamilton. It took three tugs and a high tide before it could be extricated from the reef.

It was 0830 when the vessel ran aground. The next high tide was scheduled for 1840. It wasn't until 1900 last night, 10 1/2 hours later, that it was freed. Crowds of spectators gathered on the beach at Spanish Point to watch the effort to free the ship. A look at photos of its waterline shows that it was hard aground, with the bow tilted upward and the stern depressed downward.

The ship had 1150 passengers and 500 crew aboard and was apparently under pilotage at the time of the grounding.

At this point, it will take an underwater survey with a dive team to see if the vessel can continue its voyage. If it has suffered substantial hull damage, it may be necessary for the ship to proceed straight to a shipyard and drydock for hull repairs. Coral reefs can be very hard on steel hulls, and only audiogaging will tell if the steel has been worn to the point where it needs to be replaced.
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Coast Guard pays $170,000 each for 24 boats from Donzi manufacturer

The Coast Guard is paying an average of $170,000 per boat for 24 boats being manufactured by the people who make Donzi performance craft.

AMH is the parent company of both Donzi Marine and Pro-Line, and is the lead partner of Metal Shark Aluminum Boats in Jeanrette. AMH's government division modifies Donzi and Pro-Line boats for military use.

American Marine Holdings was awarded a $17 million contract for five years and up to 100 boats, with an initial order for 24 for the United States Coast Guard.
It's unbelievable that the Coast Guard pays an average of $170,000 per boat for a Donzi. ($17 million/100 boats = $170,000 per boat).

The boats will be manufactured from American Marine Holdings' Metal Shark facility in Jeanerette, La.
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William Williams driver of one boat Involved in Osteen crash on St. John's

The boat crash in the St. John's River on June 4, 2006 was most likely caused by the two boats not seeing one another at a sharp curve in the river. William Williams was the operator of one of the boats. He was taken to the hospital with a broken leg. In all, six people were ejected into the water and three were taken to the hospital. A dog on one of the boats was killed. An engine on one of the boats was still running after the collision and the propeller severly cut the leg of a female passenger.

Jonathon Warrington was a witness to the accident. He was standing on the shore talking on his cell phone when he saw the crash. "I looked and saw this boat come this way and I saw that boat coming that way...I ran down there and, before I got to the end of the dock, they collided.....I saw a girl go under and I just tried keeping my eye on where she went in..."

A photo of one of the boats can be seen at:

http://www.wftv.com/news/9318806/detail.html
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No Insurance Coverage when Boat being used to smuggle aliens

According to "The Log",  a Southern California boating newspapers,  a number of Iraqis illegally crossed into the United States last November using a 37 ft. pleasure boat to evade Immigration.  The boat was registered to an owner in El Cajon,  a suburb of San Diego.  It is suspected that on November 20, 2005 the owner put in the water in San Diego and drove to Baja's Rosarito Beach.  From there,  it is believed that the passengers swam out to the boat.  However,  during the voyage north a polypropelene line wrapped around one of their shafts and the boat was forced to call for help.

A  radio call was made to a towing company,  most likely either Sea Tow or Tow Boat US,   that a pleasure boat needed a tow from Mexican waters to San Diego. After the towboat arrived the people aboard found out that the towboat Captain was required to bring tows picked up in Mexican waters to the U.S. Customs dock.  When they found out,  the boaters offered the captain cash to avoid Customs but he refused and radioed the Coast Guard.

Customs officers met the boat at the dock and the towboat left.  A short time later the boat was sinking at the dock.

Apparently It is not unusual for Iraqi nationals to try to enter the United States at San Diego. Most often, they come by land seeking asylum. They favor San Diego because it has a large Iraqi population.  "We do have Iraqis that show up at ports of entry,"spokesman Vince Bond said. "Generally, they are Chaldean Christians who are told by family members or someone else to get to the United States from Mexico. They typically walk to the border and ask for asylum for religious or political reasons."  The Iraqi nationals are processed and granted what is called a credible-fear hearing, he said. At that time, a judge determines whether the individual's circumstances meet federally established criteria for asylum.

Does the owner's insurance cover the sinking?  Probably not.  If a boat is being used for an illegal purpose,  the coverage is voided.  The theory is that illegal trips subject the boat to dangers and stresses which the boat would never experience if it was being used as a pleasure boat for recreational purposes.

On example is this----if the Coast Guard seizes the boat,  they have no obligation to bring it to shore or tow it safely.  When the Coast Guard seizes a boat they are exercising a "Customs Function"  and customs functions are excluded from the waiver of statutory immunity under the Federal Tort Claims Act.  In short, they have sovereign immunity and they can do whatever they want with the boat,  including sinking it.

The Coast Guard has been known to intentionally tow boats which have been seized with marijuana residue in tanks and holds,  at a high speed by their bow sprint which,  on wooden boats,  causes them to fall apart and sink.

If they do that,  there is no cause of action against the Coast Guard.
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Two Boats Collide Near Sanford,  3 injured

We are awaiting details about a boat collision which occurred near Sanford, Florida about 2:30 in the afternoon on June 5th, 2006.  Three people were taken to the hospital.  The accident must have been severe because a dog on one of the boats was killed in the crash. 

The area of the St. John's River where the crash occurred,  off Lemon Bluff Road in Osteen,  is a narrow part of the river,  near Mullet Lake.  That may have contributed to the accident.  A map of the site can be found here:

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Jet skis/PWCs:  10% of watercraft create 40% of accidents

Jet skis make up about 10% of the watercraft registered in the State of Florida but make up about 40% of the accidents according to Florida Wildlife Commission Officer Terry Noll.  Some of the more common accidents are spinal injuries which occure when people will jump over a wake in shallow water and come down wrong,  striking the bottom.  Other injuries include broken fingers, hands, or legs which occur when someone sticks a limb out,  trying to stop two PWC's from striking one another.

Jet skis can do 60 mph without modification and they can be "tweaked" to do  70 to 80 mph.

Here are some of the laws already regulating jet ski operation in the State of Florida:

-Operators must be at least 14 years of age.
Anyone 21 and under must take and pass a boating safety course to operate a jet ski (or any powerboat with over 10 HP on it).

-Playing "chicken" (e.g. two jet skis run at one another and then turn to spray water on each other)  constitutes reckless operations.  Under Florida Statue 327.39 it is a first-degree misdemeanor punishable by a $1,000 fine and a year in jail.
Jet skis make up about 10% of the watercraft registered in the State of Florida but make up about 40% of the accidents according to Florida Wildlife Commission Officer Terry Noll.  Some of the more common accidents are spinal injuries which occure when people will jump over a wake in shallow water and come down wrong,  striking the bottom.  Other injuries include broken fingers, hands, or legs which occur when someone sticks a limb out,  trying to stop two PWC's from striking one another.

Jet skis can do 60 mph without modification and they can be "tweaked" to do  70 to 80 mph.

Here are some of the laws already regulating jet ski operation in the State of Florida:

-Operators must be at least 14 years of age.

-PWC's are required to have a horn or whistle, a fire extinguisher and a safety lanyard attached from the operator to the vessel's kill switch.

-One personal flotation device (PFD) is required for each person on board.

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Judge Virginia M. Hernandez-Covington starts service in Jacksonville

Judge Virginia M. Hernandez-Covington,  who had been assigned as a United States District Judge in Fort Myers,  has started to serve in her new post as a district judge for the Jacksonville Division.

According to the website for Stetson University College of Law,  Judge Covington's biography is as follows:

Florida Governor Jeb Bush appointed Judge Covington to the Second District Court of Appeal, and she began her service in September 2001.

Prior to joining the Court, Judge Covington was the Chief of the Asset Forfeiture Section of the United States Attorney's Office for more than 12 years, receiving numerous commendations from the Department of Justice and law enforcement in that time. Judge Covington has lectured extensively on asset forfeiture, money laundering and complex prosecutions to prosecutors and law enforcement personnel nationwide. She also has taught throughout Latin America on trial advocacy practices and procedures.

Additionally, Judge Covington served as a trial attorney for the Federal Trade Commission and an Assistant State Attorney for Hillsborough County before joining the U.S. Attorney's Office.

Judge Covington earned a bachelor of science in 1976 and master of busniness administration a year later from the University of Tampa. Judge Covington earned her Juris Doctor degree from Georgetown University Law Center in 1980.

Judge Covington has received numerous awards and recognition, including being named 2003 Tampa Hispanic Woman of the Year. She serves on the National Alumni Board for Georgetown University Law Center as well as having served as Chair of the Board of Counselors of the University of Tampa and President of Tampa Hispanic Heritage. She is a founding member and president-elect of the Herbert G. Goldburg Criminal Law Inn of Court.

Her biography from The Florida Bar publication "The Record"  provides some additional information:

Judge Virginia
M. Hernandez
Covington was
<strong>born in Tampa,
Florida, on July 12,
1955,  the daughter of a Cuban mother.
She is married
and has three
children.</strong>
Judge Covington
graduated cum
laude with a Bachelor
of Science degree from the University
of Tampa in 1976, where she
received the Outstanding Female
Graduate Award, Class of 1976-77. In
1977, Judge Covington received the
degree of <strong>Master of Business Administration,</strong>
also from the University of
Tampa. Judge Covington then attended
<strong>Georgetown University Law
Center</strong>, where she was elected to The
Tax Lawyer law review and received
her Juris Doctor degree in 1980. After
graduation, Judge Covington was
a trial attorney for the Federal Trade
Commission and thereafter became
an Assistant State Attorney for
Hillsborough County, Florida. Judge
Covington joined the United States
Attorney's Office in 1983.
From January 1989 until September
24, 2001, she was <strong>Chief of the
Asset Forfeiture Section of the
United States Attorney's Office for
the Middle District of Florida</strong>. Judge
Covington received an award for outstanding
contribution to the asset
forfeiture program by the Executive
Office for Asset Forfeiture in 1993.
She also received Director's Awards
in 1990 and in 1996, as well as numerous
commendations from law
enforcement agencies. Judge
Covington has lectured extensively
on asset forfeiture, money laundering,
and complex prosecutions to
prosecutors and law enforcement
personnel throughout the United
States. She also has lectured to prosecutors,
law enforcement personnel,
and judges in Chile, Argentina,
Mexico, Venezuela, Colombia, Costa
Rica, and Honduras on trial advocacy
practices and procedures. In addition,
she served as a liaison between
the Department of Justice and the
Bolivian Government, assisting the
Bolivians with their asset forfeiture
program.
She is the 1999 winner of the
Raymond E. Fernandez Award given
by the Hillsborough County Sheriff 's
Hispanic Advisory Council to the individual
who has made outstanding
contributions to the criminal justice
system. In October 2001, Judge
Covington was honored to serve as
the keynote speaker at the Orange
County Bar Association's Hispanic
Heritage Celebration Luncheon.
Judge Covington has long been active
in community affairs. She served
as Chair of the Board of Counselors
of the University of Tampa; President
of Tampa Hispanic Heritage;
Regional President of the National
Hispanic Prosecutors Association;
and Chair of the Government Law
Section of the Hillsborough County
Bar Association. She also has been a
member of the Hispanic Needs and
Services Council; the Hispanic Professional
Women's Association; and
the Hispanic National Bar Association,
as well as numerous other community
and professional organizations.
Additionally, Judge Covington
is a founding member and has been
elected to the Executive Board of the
Herbert G. Goldburg Criminal Law
American Inn of Court.
<strong>Governor Jeb Bush appointed
Judge Covington to the Second District
Court of Appeal, and she began
her service on September 25, 2001.</strong>

According to a Gay Rights Info website,  Judge Covington is perceived to be "extremely anti-gay" because of a ruling in a case which determined that " a female-to-male transsexual is still legally female."  Because the Plaintiff was still legally a female,  she could not legally marry another woman.  Pretty thin evidence.  
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Lido Beach-Suspect on Jet Ski leads Sarasota Police on a Chase

Police arrested Tyrell L. Leverett,  18,  after he tried to flee from the Sarasota Police Marine Patrol on a jet ski.

The Officers saw Leverett operating his jet ski recklessly near Big Pass but when they tried to stop him, Leverett sped away toward Lido Beach.  When he got to the beach he took off his life jacket and started running.

He was caught,  arrested,  and charged with fleeing and to eluding and reckless operation of a watercraft.
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Things to look for when purchasing a boat--for safety

Here are some safety rules to look for when buying a small boat:

1.  Is the boat is designed to be "eye-catching?"  How much special features,  carpeting and fancy cushioning does it have?

In my experience,  when a boat is designed to be eye-catching,  it is a sign that styling is the first priority,  and that safety is sacrificed in the process.

2.  Does the interior of the boat have adequate handholds?

Handhold diminish the appeal of the interior of a boat,  but are necessary to reduce the likelihood of an accident.  If the  designer has done away with them,  then the boat is unsafe.

3.  Do the seats have good cervical (upper back and neck) support. 

If you are going to be running in a boat at 35, 45, 55 or more miles per hour,  you want a seat which will protect your spine.  If the seat hits your back in the mid to lower back,  you are more prone to get back injuries in a collision,  or just through the pounding of the waves.

4.  Are the windshields strategically placed to decapitate the driver and passenger in case of a high impact collision?

It may seem obvious,  but where is your body going to go if the boat hits a piling at high speed?   Don't think it can happen?  Look at the photos on my web site at www.floridamaritimelawyers.com.  If the windshield is set at neck level,  beware of secondary impacts in the event of a collision.

5.  Is the bow seating is shallow? 

If so,  passengers (often children) sitting up there a subject to ejection even if they have some hand holds.
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Former University of Georgia pitcher Jody Friedman Dies in Boating Accident

Over the weekend,  former University of Georgia pitcher Jody Friedman died when he dove into shallow water from a boat off Bradenton Beach.  The 28 year old Friedman was a resident of Bradenton,  but in 2001 he was a member of the Bulldogs' 2001 College World Series team.

It often amazes me how frequent these types of accidents are.  People often think that two or three feet of water in enough to break their falls.  The rule is,  if there is a ladder,  use it.  Slide gently into the water.  Bend your knees.  The sand beneath that thin sheet of water is pretty hard.

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Glen Palmer Dam on Fox River claims One kayacker and Two Rescuers

It was a deadly Memorial Day weekend in Yorkville, Illinois,  outside of Chicago.  Kayaker Craig Fliege went over the Glen Palmer Dam first.  When passersby Mark and Bruce Sperling,  who are brothers, saw him fail to emerge,  they went into the water to try and save him,  but all three were sucked and held beneath the suface by the powerful hydraulic forces of the falling water.

The dam is deceptively dangerous,  falling only about three feet.  However,  the falling water creates a boil just beyond the dam which can suck in and hold swimmers beneath the surface.  The dam has been the site of at least 16 drownings in the last 30 years.

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Fuel gages may be causing boat fires and explosions

ost gasoline powered boat explosions are caused by fuel leaks.  A common source of the problem is the tank gaging system used in many small boats.  The guages used to be housed in tubes made from aluminum which extended into the fuel tank.  However,  the manufacturer has changed the tubes from aluminum to stainless steel.  While no announcement heralded the change,  speculation in the boating community is that the aluminum tubes weren't strong enough to withstand the pounding, surging,  and motion of fuel inside the tank,  without suffering from fatigue.

In short,  if you have a fuel leak,  remove the gage and send it to a metalurgist for testing.  Frank Grate,  a metallurgist in Miami,  is familiar with testing these types of gages.
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Gritter Griffin and Jueckstock involved in boat explosion

Two fishermen fishing in a Florida redfish tournament are lucky not to have died.  Gritter Griffin of Alabama and Paul Jueckstock of Port Orange were on their way to the weigh-in at Charlotte County's when there was an explosion and fire aboard their boat .

"We heard an explosion," said Griffen. "There was fire the length of the boat."  Griffin was catapulted from the boat, but neither he nor Jueckstock knew what was going on at the point. It didn't take long before they realized they were in trouble.  There was a second explosion which sent Jueckstock airborne.

"I think I dived into the water," Jueckstock said. "I thought I might have broke my neck -- the water was only two feet deep."

Most gasoline powered boat explosions are caused by fuel leaks.  A common source of the problem is the tank gaging system used in many small boats.  The guages used to be housed in tubes made from aluminum which extended into the fuel tank.  However,  the manufacturer has changed the tubes from aluminum to stainless steel.  While no announcement heralded the change,  speculation in the boating community is that the aluminum tubes weren't strong enough to withstand the pounding, surging,  and motion of fuel inside the tank,  without suffering from fatigue.

In short,  if you have a fuel leak,  remove the gage and send it to a metalurgist for testing.  Frank Grate,  a metallurgist in Miami,  is familiar with testing these types of gages.
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Richard Forest injured in Vilano Beach jet ski accident

A near death accident in Vilano Beach sent one man to the hospital over the Memorial Day weekend.

23-year-old Richard Forest was riding his jet ski when he flipped over, landing in the water on his head. Forest was taken to Flagler Hospital, he is now in critical condition.

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Florida Boating Registrations Exceeds 1 million mark
For the first time,  boating registrations in Florida has passed the 1 million mark.

While the number of accidents is up,  the accident rate in Florida has been declining year after year.  In 2005,  there were 36 accidents per 100,000 registered boats.  That is down from 48 in 2004,  53 in 2003,  55 in 2002 and 2001,  73 in 2000,  and 71 in 1999.
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Florida Boating Accidents-Top 15 most common injuries

From the Florida Fish and Wildlife Commission,  here are the 15 most common injuries experienced by boaters in 2005:

15.      Teeth and jaw  (particularly when faces hit windsheilds)
14.      Amputation    (when will naval architects develop an efficent propeller guard?)
12.      Shock   (usually accompanied by hypothermia)
11.      Dislocation  (better than a break,  right?)
10.      Hypothermia  (often accompanied by death)
9.        Neck injury  (whiplash and soft tissue)
8.        Burn     (boating fires)
7.        Internal injury   (anytime there is a collision,  there are likely to be these)
6.        Sprain/strain   (not to specific)
5.        Back injury     (men,  particularly tall men,  low back)
4.        Head injury    (headaches and depression usually don't show up for 30 days,  this category of injury is underreported)
3.        Contusion    (everybody bruises)
2.        Broken bone(s)  (for those who don't dislocate)

And the most common boating injury in Florida in 2005 was:
1.        Lacerations  (less severe than amputations)
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Boy, 13 Arrested in Stock Island Collision Snorkeler aged 6

It was a bad Memorial Day Weekend in Key West.  A 13-year-old boater driving an 18-foot skiff with at least one passenger on board ran over and killed a 6 year old who was snorkeling in shallow water alongside his father's 22 foot boat.  The accident happened off Sunset Marina, on the north side of Stock Island.

"It was obvious from what witnesses said that he knew he had run over a boat," Acton said. "It's possible he may not have known that he'd run over the boy, but he should have stopped and checked."

Its clear that the parents of the boy who caused the accident may have serious problems.  If they have a home on Stock Island it is likely that they have assets and are relatively well to do.  Entrusting a power boat to a 13 year old may be considered to be negligence in and of itself.

In Florida, anyone under 21 must pass an approved boater saftey course or have an adult onboard to operate a vessel with at least 10 horsepower.  Passing the course may not be enough to show that a young boater can be entrusted to safely operate a boat.  In 2005 Florida issued 6501 Boating Education Safety I.D. cards to boaters under the age of 16.  74% of those who earned the cards were boys.

Monroe County in the Florida Keys led the State of Florida with 120 boating accidents last year and 98 in 2004.
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Michelin Boat found 10 miles offshore

The wreck of the 24ft fishing boat, the Liberté, was located by a minesweeper yesterday 10 miles off the Ile de Sein.  There was no immediate sign of a cause for the loss of the vessel.  If true,  those facts are inconsistent with most boating accidents.  The fact that it was 10 miles offshore makes it unlikely that the boat hit a rock,  although another floating object is a possibility.  It would be highly unlikely for a 24 ft. boat to capsize,  no matter how the weight was distributed.  If it was struck by a passing ship,  it would bear signs of the impact.

Michelin did his national service in the French Navy serving on a nuclear submarine.  He leaves behind six small children.
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Edouard Michelin---Hypothermia probably the Cause of Death

While initial reports say that Edourard Michelin's death was likely caused by drowning,  an autopsy is likely to find that that the actual cause of death was hypothermia,  and that drowning was secondary.  At least from initial reports,  it seems that there was no trauma to the body.

Water in the lungs is a poor indicator of the cause of death of someone killed in a boating accident.  Most boating accident victims actually die from cardiac arrest caused by a lowered body temperature.  In 70 degree water,  6-7 minutes is all it takes to develop serious hypothermia.  Water is 26 times more effective than air in taking away body heat.   Depending upon the degree of hypoxemia, the victim usually  developd cardiac arrest and lack of blood to the central nervous system.  The airways relax,  permitting the lungs to fill with water.  This is what is known as a "wet drowing."  This can be shown because between  10% and 20% of individuals maintain a tight larynx until the heart stops.  These boating accident victims do not inhale any water and hence are know to have suffered from a ("dry drowning".
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Edouard Michelin, 42,  Dies in Mysterious Fishing Accident

I've said it many times on this web site and I'll say it again---fog and darkness are the two biggest killers on the ocean.

Edouard Michelin,  who was the co-managing partner of the Michelin Tire Group,  which included not only the tire company but the much praised Michelin Guide series of travel guides,  restaurant guides,  and hotel guides,  was killed in a boating accident Friday.  He departed on Friday morning for a half day fishing trip on a 24 ft boat called the "Liberty"  The were fishing with rod and reel (the French call it line-fishing) for sea-bass.  It was foggy.  It appears that he was due to return at 2:00 p.m. on Friday.

Sea-bass is not a sport fish but is sought after as a delicacy.

The area he was fishing was about 7 miles off the coast,  midway between the Ile de Sein and the Ile Centre,  on the Brittany Coast of western France---on the Southern approach to the English Channel.   "It is a risky zone where only knowledgable professionals can fish. There are rocks, currents, it is true a boiler" said Jean-Marie Figue, spokesman of the maritime prefecture of the Atlantic.

Neither the boat nor the guide has been found,  but I suggest this (I've been doing this professionally  as a lawyer for 23 years,  and for 34 years,  if you count my time working aboard ships):

1.  Ejection--the boat hit a rock,  or floating debris etc. while running at high speed in fog.  These types of accidents tend to happen to experienced operators who "know these waters like the backs of their hands."  They are usually the result of overconfidence.  The operator and passenger (Michelin) were ejected.  Probability  60%.

2.  Collision---boat  was hit by a passing commercial ship which couldn't see it because of its low profile.  A fiberglass or wood boat in heavy swells is virtually invisible to ships,  either on radar,  or even to a diligent look out.  Probability  20%

3.  Internal defect----the boat sprung a plank which caused it to sink quickly,  without time to get off a radio call for help.  Probability 10%.

4.  All other causes--foul play,  swamping, stability problems.  Probability 10%.

According to the Sunday Times (London)  "The accident took place near Ile de Sein, off the coast of Brittany. The tyre magnate had been aboard a fishing boat that sank without explanation. It had been a foggy day but the sea was calm."

According to ShortNews.com "Michelin's fishing partner, Guillaume Normant, has still not been found. The boat sank after the accident and no more details are known. It had left the Brittany port of Audierne on Thursday night."
According to The Independent "M. Michelin had persuaded the president of the local fishermen, Guillaume Normant, to take him line-fishing for sea bass in his 24ft boat, the Liberté. Weather conditions were said to be reasonable but not perfect with low visibility and a heavy swell from recent high winds. Robert Bouguéon, the president of fishermen in a neighbouring port, Guilvinec, said that M. Normant had ben reluctant to take M. Michelin out but had allowed himself to be persuaded.  

"It was his good heart that killed him. He couldn't say no," M. Bouguéon said.

The cause of the accident remained a mystery last night. Although the area, off the island of Sein, is one of the most treacherous parts of a hazardous coast, M. Normant knew it well."

C'est tragique.  My condolences to the people of France and the Michelin family.

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Tropical Shipping argues that Harter Act doesn't apply to it

Tropical Shipping,  a Riviera Beach,  Florida container ship operator,  has filed a brief with the United States District Court in Florida asserting that it doesn't have to comply with the Harter Act on shipments from foreign countries to the United States.  The Harter Act is the Act which protects shippers of cargo from those nasty clauses in bills of lading absolving ocean carriers from liablity if they damage cargo en route.

Tropical's position is outlandish.  In the case of Knott v. Botany Mills, 179 U.S. 69, 75-76 (U.S. 1900) the Supreme Court set forth the rule of law that the Harter Act, 46 U.S.C. Sections 190-196 applies to bills of lading issued in foreign ports for cargo being carried to the United States.  The Court's rationale was as follows:

In their usual and natural meaning, the words "from any port in the United States" include all voyages, whether domestic or foreign, which begin in this country; the words "to any port in the United States" include all voyages, whether domestic or foreign, which end in this country; and the words "between ports of the United States and foreign ports" include all foreign voyages which either begin or end here.......And  no reason has been suggested why a foreign vessel should come within the benefit of the third section relaxing the warranty of seaworthiness, and not come within the prohibition of the first section affirming the unlawfulness of stipulations against liability for negligence.

            The rule established by the Supreme Court in Knott has gone unchallenged for 106 years until Tropical raised it again in 2006.   See Netherlands American Steam Nav. Co. v. Wagner, 12 F.2d 640 (2d Cir. 1926), cert. den. 273 U.S. 735. ("....the Harter Act......governs ocean transportation of goods into this country as well as out of it....);  The Tampico, 151 F. 689, 690 (D. Cal. 1907);   The Frey, 92 F. 667 (D.N.Y. 1899)(...foreign vessels.....are bound by its [the Harter Act's] limitations and are subject to the declared policy of this country in that regard...);  The Ferncliff, 22 F. Supp. 728, 738 (D. Md. 1938).

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Maintenance and Cure and Punitive Damages

The 11th Circuit Court of Appeals currently has pending before it a certified question from the United States District Court in the Middle District of Florida concerning whether punitive damages are available when a shipowner wilfully denies maintenance and cure.

It appears likely that the Court will hear the case, although a final decision is not expected for a number of weeks.  The case is Weeks Marine and Atlantic Soundings v. Townsend.

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American Maritime Cases--An Anachronism

American Maritime Cases is a source which has been relied upon by maritime attorneys for decades.  However,  a noticeable bias has developed in the past few years which is causing many attorneys,  myself included,  to forego citing to it in our briefs and legal opinions. 

The reason is that AMC has become a publication of the "defense bar."  The editorial board is dominated by attorneys representing Protection and Indemnity Associations, insurance companies,  shipowners,  and other defense interests.

In order to get a case published in AMC you need to submit it to a member of the editorial board who must find it to be noteworthy and then recommend it for publication.  The problem is that defense attorneys seldom find cases in which the Plaintiffs win to be noteworthy,  and hence they refuse to publish them. 

Other,  more subtle techniques of avoiding the publication of cases where Plaintiffs win is by erecting procedural barriers to publication.  I once had three cases which I considered noteworthy,  all of which were favorable to Plaintiffs.  I submitted them to the local member of editorial board,  who happened to be a defense attorney who represented the Protection and Indemnity Clubs.  He lost the cases (or so he said).  I sent him another copy.  He lost them again.  I sent a third copy---lost again.  Obviously they were never going to be published,  so I gave up.

I represent an importer of men's suits and jackets.  There are a number of cases out of the Southern District of Florida,  the State Courts of Florida, and the Southern District of New York finding that each suit,  which is packaged in a plastic bag,  is a package.  One case found that they were not packages.  I've tried for years to get the other cases published,  but AMC simply wont do it.  They don't want adverse case law to become well known  so they don't publish it.
With the availability of LEXIS and Westlaw,  AMC is an anachronism.   I stopped purchasing the volumes last year.  If you are looking for a complete set from 1916 to 2005,  let me know.

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Non-Maritime Attorneys Sometimes Miss Maritime Statute of Limitations

Every year it happens.  Someone calls me and asks if I will accept referral of a maritime personal injury case that happened 3 years and 9 months earlier.  It is a sad occurrence when I have to advise them that even though Florida has a four year statute of limitations,   the statute of limitations on maritime personal injury cases is three years.

I had to do it just recently.  A young attorney called and said that she had been told that the three year statute of limitations didn't apply except to accidents on the high seas.  She was now coming up on four years after the accident and wanted to know if I would take the case. 

While the statute is found in the Death on the High Seas Act,  it applies to all maritime accidents on the navigable waters of the United States,  which includes most rivers and harbors.  Land-locked lakes may be excluded.

When I told her that the SOL had passed,  I could tell that she was getting upset.  Sadly,  she caught me in a rush and I was less than gentle in giving her the bad news.  I have regretted it since.

The statute of limitations is only the first of many pitfalls you are up against if you are a non-maritime attorney trying to handle a boating accident case.  If you dodge that bullet,  don't worry,  there are many more to come.

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Accidents with Ship in control of a Harbor Pilot

If a foreign ship causes an injury in a U.S. port while it is under the direction of a pilot,  in most cases the shipowner can defeat liablity by asserting the compulsory pilot defense.  The defense says that if the law required you to carry a pilot (and it always does on foreign ships) then the shipowner is not liable if there is an accident.

How can you defeat the defense?  Most times you need to arrest the ship. To do that,  you need a maritime attorney.
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Asset Protection for Harbor Pilots

For hundreds of years it has been the practice in admiralty and maritime case that parties injured in a maritime collision,  or due to wake damage, don't sue harbor pilots but only sue the owner of the ship which causes the accident.  However,  since more and more maritime injury cases are being handled by non-maritime attorneys,  that practice is changing.

The reason why maritime attorneys didn't sue the pilots is because harbor pilots are uninsured.  They are unable to obtain liability insurance for accidents they may cause or contribute to because such insurance is not commercially available.  It never has been.  Consequently,  a plaintiff who sues a harbor pilot is going after the pilot's assets,  not just some insurance company.

To protect their assets,  most pilots are individually incorporated and hold their assets jointly with their wives.  However,  some are even looking for better forms of asset protection.  Asset protection trusts,  inter vivos transfers to their children and other,  more aggressive asset protection methods,  all of which are perfectly legal,  are becoming more common.

If you are a pilot and need help in protecting your assets,  contact me.  I can help.

If you are injured by a ship under pilotage,  either in a collision or through wake damage,  make sure your attorney knows maritime law. 

If you hired a non-maritime attorney to handle a maritime case,  and he failed to arrest the ship to secure your recovery,  call me as well.  Not arresting the ship while it is in the United States,  and before the 3 year statute of limitations runs,  could be malpractice.
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No such thing as "life salvage"

If you rescue someone on the high tomorrow,  are you entitled to a reward?  It depends on what you rescue.

When property is lost at sea and rescued by another, the rescuer is entitled to claim a salvage award on the salved property. There is no "life salvage." All mariners have a duty to save the lives of others in peril without expectation of reward. Consequently salvage law applies only to the saving of property.

In short,  if you save people at sea,  you might also want to try to save their boat as well.  While you'll get your reward in heaven for rescuing the people,  your reward for rescuing the boat will be more immediate.
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Cruise ticket venue provisions--why Miami or Seattle?

Shipowners owe a duty of reasonable care to passengers. Consequently, passengers who are injured aboard ships may bring suit the same as if they had been injured in a store ashore.

However,  suits must generally be brought within one year and most passenger tickets have provisions requiring suit to be brought in either Miami, Florida or Seattle, Washington.  Why those two ports?  Because thats where the major cruise lines are located.  So if you live in Jackson Hole, Wyoming,  and decide to take a cruise,  if you get hurt you are going to need to go to Miami to get any relief.
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Maintenance and Cure,  even in cases of seaman's wrongful conduct?

Seaman are compensated for injuries sustained aboard ship by three separate concepts: the principle of maintenance and cure, the doctrine of unseaworthiness, and the Jones Act. The principle of maintenance and cure requires a shipowner to pay for medical care, and provide basic living expenses for any seaman injured on a ship, regardless of whether the shipowner is at fault. It is similar in some ways to workers' compensation.

The question then arisis,  can a seaman be denied maintenance and cure if the injury is dur to wilful misconduct?  At least one U.S. marine contruction company says so---Weeks Marine.

Weeks is wrong,  of course.  They usually are.  But that doesn't stop them from sometimes leaving seamen high and dry and without medical care when a seaman is injured while working for them.
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New wave under COGSA?  Sue under the Harter Act.

Claims for damage to cargo shipped in international commerce are governed by the United States Carriage of Goods by Sea Act which is the U.S. enactment of the the Hague Rules. Some of its key features is that a shipowner is liable for cargo damaged from "hook to hook", meaning from loading to discharge, unless it is exonerated under one of 13 exceptions to liability such as "Act of God", inherent nature of the goods, errors in navigation and management of the ship (not the cargo) etc. A shipowner is generally entitled to limit its liability to $500 per package. The statute of limitations is one year.

Many shipowners are manipulating the terms on their bills of lading to take advantage of the $500 limitation and limit their liablility to $500 per container.  However,  an ancient statute is now being used to combat that trend.  It provides that if shipowners do not properly describe the cargo on the bill of lading,  they can be fined $2000 per bill of lading, with half going to the federal government and half going to the cargo owner.

At least on Pennsylvania based clothing manufacturer is seeking millions in damages from Tropical and Crowley for listing containers with 5000 or more men's suits as "1 package."

The case is currently filed in the Middle District of Florida.
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Should Jet Ski Owners be Permitted Limitation?
In these days of modern communications, continued need for the Limitation Act is questionable. The theory behind the Act was that a shipowner who properly equipped and crewed a ship shouldn't be liable for something which happens when the ship is out of his control. Modern ships are seldom out of the control of their shoreside owners, but the Act remains a viable protection to them.

But,  what about jet ski owners?

The Limitation Act doesn't just apply to large ships. It can be used to insulate a motorboat owner from liability when he loans his boat to another who then has an accident. Even jet ski owners have been able to successfully utilize the Limitation Act to insulate them from liability.  Should this be permitted?

No,  of course not.  Consequently,  most admiralty and maritime courts find that jet ski accidents are within the privity and knowledge of the owner because he decided who to entrust the jet ski to.  It may be rough justice,  but it works.

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It worked for the Titantic in 1912,  but is Limitation still necessary?

One of the unique aspects of maritime law is the ability of a shipowner to limit its liability to the value of a ship after a major accident. An example of the use of the Limitation Act is the sinking of the R.M.S. Titanic in 1912. Even though the Titanic had never been to the United States, upon her sinking the owners rushed into the federal courts in New York to file a limitation of liability proceeding. The Limitation Act provides that if an accident happens due to a circumstance which is beyond the "privity and knowledge" of the ship's owners, the owners can limit their liability to the value of the ship after it sinks.

After the Titanic sunk, the only portion of the ship remaining were the life boats which had a collective value of about $3000. The owners of the Titanic were successful in showing that the sinking occurred without their privity and knowledge and therefor the families of the deceased passengers, as well as the surviving passengers who lost their personal belongings, were entitled to split the $3000 value of the remaining lifeboats.

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Reverse-Erie Doctrine and Joint and Several Liability

Florida has outlawed joint and several liability,  but that doesn't mean that it no longer exists in admiralty cases.

A Florida court hearing an admiralty or maritime case is required to apply the admiralty and maritime law, even if it conflicts with Florida law under a doctrine known as the "reverse-Erie doctrine." Remember the "Erie doctrine"?  It says that federal courts hearing state actions must apply state law. The "reverse-Erie doctrine" is the opposite.  It says that state courts hearing admiralty cases must apply federal admiralty law.

It can make a big difference. For example, maritime law recognizes the concept of joint and several liability among tort-feasors, while Florida does not. Under joint and several liability, where two or more people create a single injury or loss, all are equally liable, even if they only contributed a small amount. In Florida,  Fabre requires that the damages be apportioned.  However,  a Florida court hearing an admiralty case would be required to apply the doctrine of joint and several liability even though Florida has outlawed the concept.

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Concurrent State and Federal Jurisdiction in Admiralty

It is amazing to me how many otherwise intelligent lawyers are hung up on the concept that admiralty cases need to be brought in federal court.  Article III, Section 2 of the United States Constitution granted original jurisdiction to U.S. federal courts over admiralty and maritime matters. However, most admiralty cases in the United States can be brought in either federal or state court.

The federal and state courts have concurrent jurisdiction pursuant to the terms of a federal statute known as the "Savings to Suitors" clause. Under the Savings to Suitors clause, certain remedies are exclusively limited to being filed in the federal courts:  suits seeking to arrest ships to enforce maritime mortgages and liens, petitions to limit a shipowner's liability to the value of a ship after a major accident, and actions seeking to partition ownership of a ship.  But those are only the rare cases which the average lawyer is not going to try to handle themselves anyway (leave these to maritime experts--like me).

However, the vast majority of maritime actions, such as suits for damage to cargo, injuries to seamen, collisions between vessels, wake damage, and maritime polution cases may be brought in either state court or federal court.