Boating Accident Civil Liability, Rules and Procedure
By Edward Petkevis, Esq. LL.M, Admiralty


 

Introduction


  The type of actionable boating accidents that can occur are limited only by the scope of
human negligence. Discussion of most boating accidents normally envisions a collision between
two vessels, or as an allision, where a vessel strikes a fixed object such as a jetty or pier.
However, boating accident claims can arise from virtually unlimited causes, such as, by way of
illustration but without attempt at limitation: improperly operating a vessel at an unsafe speed
considering proximity to other vessels or the sea state, for improperly creating or encountering a wake, propeller injuries, carbon monoxide deaths, water skiing accidents, fish hook accidents,
vessel sinkings, drownings, food poisoning, or even for such routine claims as a slip and fall
accident on an unsafe deck. However, no matter how routine the case may seem, it will be
subject to laws and procedures unique to admiralty. An understanding of the applicable laws,
not only governing the cause of action, but in the case of a vessel collision, that concern the
proper navigation of a vessel, will be critical to the successful prosecution of the case.


State vs Federal Jurisdiction


  Boat [fn1] accidents that occur on the internal, navigable, waters of a state, or off its coast, can
be prosecuted in federal court, under its admiralty jurisdiction, [fn2] or, if there is an additional
independent basis of jurisdiction, such as diversity of citizenship between the parties, [fn3] pursuant to such alternative jurisdiction. Federal court is not the exclusive jurisdiction for the prosecution of a boating accident case. Even if there is otherwise federal admiralty jurisdiction, a boating accident case may be prosecuted in state court under the Saving to Suitors Clause of 28 U.S.C. §1333(1), so long as distinctive admiralty remedies are not sought (such as an in rem action against a vessel).

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FN1 In admiralty, the proper term is not boat, but “vessel.” Due to the variety of floating structures, including floating drydocks, submersible offshore drilling rigs, floating yet permanently moored casinos, and the myriad of other structures afloat, the issue of whether a particular contrivance constitutes a “vessel” for purposes of application of various maritime laws is often fact specific and highly litigated. For purposes of the present discussion, however, normally all marine craft afloat that one envisions when they think of a “boat” would qualify as a vessel. Admiralty jurisdiction is not limited to commercial vessels, but includes pleasure boats. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S. Ct. 2654, 73 L. Ed. 2d 300, 1982 A.M.C.2253 (1982).

FN2 28 U.S.C. § 1333

FN3 28 U.S.C. § 1332

Federal Jurisdictional Requirement of Navigability

  It is important to note that not all boating accidents give rise to the admiralty jurisdiction
of federal court. For there to be admiralty jurisdiction over a boating accident, the waters on
which the collision occurred must be navigable. While the navigability of the high seas is not in
doubt, not all waters are navigable. The basic test of navigability for purposes of admiralty
jurisdiction is set forth in The Daniel Ball. [fn4] Admiralty jurisdiction extends to navigable waters, which are those susceptible of being used, in their ordinary condition, as highways for
commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. [fn5] The test of navigability for purposes of admiralty jurisdiction has two requirements: the waters must be navigable in fact and have an “interstate nexus.” [fn6] 

Thus, there is no admiralty jurisdiction over a landlocked lake wholly within one state. [fn7] Conversely, bodies of water that border on two or more states may be navigable and within admiralty jurisdiction. [fn8] Piers, wharves and other maritime structures are not considered part of the water for purposes of jurisdiction, but rather are deemed extensions of the land.[fn9] However, if an accident occurs on such a structure, where the negligent act causing the harm occurred on navigable waters, although the situs of the actual harm was on the pier or land, the cause of action will be subject to admiralty jurisdiction pursuant to the Admiralty Extension Act.[fn10]

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FN4   77 U.S. 557, 563, 19 L. Ed. 999, 2000 AMC 2106 (1870).

FN5   Id.

FN6   Tundidor v. Miami-Dade Cnty., 831 F.3d 1328 (11th Cir. 2016).

FN7   Doran v. Lee, 287 F.Supp. 807 (W.D.Pa.1968); Oseredzuk v. Warner Company, 354 F.Supp. 453, 1972 AMC 2007 (E.D.Pa.1972), aff’d without opinion 485 F.2d 680, 1974 AMC 254 (3d Cir.1973).


FN8   Bond v. Doig, 433 F.Supp. 243 (D.N.J.1977).


FN9   Ellis v. Riverport Enterprises, Inc., 957 F. Supp. 105, 1997 A.M.C. 2264 (E.D. Ky.1997).


FN10 46 U.S.C.A. App. § 30101 (2007).

The FED. R. CIV. P. 9(h) Election


     If a case is brought in federal court pursuant to its general maritime jurisdiction, there is
generally no right to a jury trial. [fn11] For this reason, many practitioners prefer to utilize the Saving to Suitors clause to have the accident case heard in state court before a jury. However, under certain circumstances, if a federal forum is preferable, the right to a jury trial may still be
available, if there is a basis of federal jurisdiction independent of admiralty jurisdiction, such as
diversity jurisdiction. [fn12] Where there is a basis of jurisdiction independent of admiralty jurisdiction, a claimant may make a FED. R. CIV. P. 9(h) election that the matter proceed in admiralty. Should such an election be made, then notwithstanding the independent basis of federal jurisdiction, which would otherwise give the right to a jury trial, the 9(h) election can eliminate the right to a jury trial. [fn13] A suit in admiralty in federal court can be brought both in personam against the vessel owner, and also against the vessel itself, in rem. Conversely, a suit in state court may only be brought in personam, as in rem jurisdiction is within the sole province of the federal court, sitting in admiralty. [fn14] One of the most common reasons that a plaintiff may make a Rule 9(h)election is to have the benefit of the in rem action, even though that means the plaintiff may ultimately forego the right to a jury trial. Conversely, if a plaintiff prefers a bench trial over a jury trial, the plaintiff’s 9(h) election would serve to deprive the defendant of a right that it may otherwise have had to a jury trial. [fn15]

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FN11   O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed.596 (1943).

 

FN12 28 U.S.C. § 1332.

 

FN13 FED. R. CIV. P. 38(e).

 

FN14 Madruga v. Superior Court, 346 U.S. 556, 74 S.Ct. 298, 98 L.Ed. 290, 1954 AMC 405(1954).

 

FN15 Harrison v. Flota Mercante Gran Colombiana, S.A. 1979 AMC 824, 577 F.2d 968 (5Cir. 1978)

 

Removal of a State Action to Federal Court

 

     The choice of forum, state versus federal, may be subject to some contest by the defendant. If a defendant vessel owner is sued in state court, the defendant may seek to remove the case to federal court.[fn16] Removal may be sought for various reasons, such as access to the Federal Rules of Civil Procedure, or to deprive the plaintiff of the right to a jury trial. A case is subject to removal if it could have been brought originally in federal district court, unless forbidden by Act of Congress.[fn17] As boating accident cases that arise on navigable waters clearly could have been brought in federal court under its admiralty jurisdiction, it would appear that any boating accident case filed in state court would be subject to removal to federal court.

Nevertheless, the rule is that admiralty cases properly filed in state court under the Savings to
Suitors clause cannot be removed to federal court unless there is jurisdiction independent of
federal admiralty jurisdiction.[fn18] Some courts have reasoned that once resort is had to the Savings to Suitors clause, the federal district court is actually deprived of subject matter jurisdiction.[fn19] For this reason, it has been held that the 30 day time limitation of a motion to remand is not applicable for an admiralty matter filed in state court under the Savings to Suitors clause, and later removed to federal court, because absent an independent basis of jurisdiction, issues as to subject matter jurisdiction may be raised at any time prior to trial.[fn20] If there exists an independent basis of jurisdiction, such as diversity, then removal would be proper.[fn21]

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16   28 U.S.C.§ 1441.

 

17   Id.

 

18   Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368(1959).

 

19   Glazer v. Honeywell Int'l Inc., Civil Action No. 16-7714(D. N.J., 2017), citing Sandersv. Cambrian Consultants (CC) Am., Inc., 132 F. Supp. 3d 853, 858 (S.D. Tex. 2015).

 

20   Cowan v. Baydelta Mar., Inc. Case No: C 10-05346 SBA (N.D. Cal. 2011), relying upon In re Chimenti, 79 F.3d 534 (6th Cir., 1996).

 

21   Id.

Limitation of Liability


   Removal is not the only tool available to the defense to take a matter otherwise properly
brought in state court pursuant to the Savings to Suitors clause to federal court. If a defendant is sued in state court, or even if such a suit has not yet been filed, the tortfeasor can, as a plaintiff, initiate an action in federal court against the victim(s), as defendant(s). The Limitation of Shipowners' Liability Act [fn22] along with Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, Rule F, give a vessel owner the opportunity to file suit for
exoneration from all liability, or to attempt to limit its liability for a maritime casualty (whether
it be for property damage, personal injury or death) to the post casualty value of the vessel, plus
pending freight,[fn23] so long as the negligence that caused the casualty occurred without the owner's privity or knowledge.[fn24] In a limitation action, the court will issue an order, called a “monition” requiring all claimants to file their claims in the limitation action by a certain deadline, under penalty of default. Late filing claimants may be allowed in the discretion of the court.[fn25] The court will also enjoin any pending actions outside the limitation forum, but bring them together in a concursus (a single limitation action), and require any additional claims to be joined as well, so that liability may be determined and, if appropriate, limited.
   Limitation of liability may be asserted as an affirmative defense in an answer, outside a
federal limitation of liability action, and even in state court, at any time that pleading of
affirmative defenses is allowed.[fn26] However, to file a complaint in limitation, and thereby create the injunction, monition and concursus, the owner must file a complaint in limitation within six months of receipt of a written notice of claim.[fn27] If the shipowner fails to meet this deadline, the limitation action may be dismissed as untimely on motion of a claimant.[fn28] However, for a writing to establish a claim, it must include both a representation that the value of the claim potentially exceeds the value of the vessel, and must also include a claim of right, meaning that the claimant intends to seek damages from the vessel owner.[fn29] The writing need not be in any particular form, and can be as simple as a letter; service of process constitutes sufficient notice, so long as the potential of the claim to exceed the value of the vessel is expressed.[fn30] 

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17    Id.

18    Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368(1959).

19    Glazer v. Honeywell Int'l Inc., Civil Action No. 16-7714(D. N.J., 2017), citing Sandersv. Cambrian Consultants (CC) Am., Inc., 132 F. Supp. 3d 853, 858 (S.D. Tex. 2015).

20    Cowan v. Baydelta Mar., Inc. Case No: C 10-05346 SBA (N.D. Cal. 2011), relyingupon In re Chimenti, 79 F.3d 534 (6th Cir., 1996).

21    Id.

22    46 U.S.C. §§ 30501 et seq.

23    The term “freight” is often confused with “cargo.” In a limitation action, freight is the money earned by a vessel for carrying cargo.

24    46 U.S.C. § 30505.

25    The standard is less than good cause, but rather a “minimal cause standard.” In re Deray,2006 U.S. Dist. LEXIS 28146, 2006 WL 1307673 (D.N.J. May 10, 2006); In re Complaint of White, No. 16-cv-174, 2016 WL 4707984, 2016 U.S. Dist. LEXIS 121161 (D.N.J. Sep. 7, 2016).So long as the limitation proceeding is pending and undetermined, and the rights of the parties are not adversely effected, the court will freely grant permission to file late claims, upon an affidavit reciting the reasons for failure to file within the time limited. In re Bartin DenizNakliyati, 1989 U.S. Dist. LEXIS 13195, 1989 WL 128581 (E.D.N.Y. July 10, 1989).

26    Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520, 1931 AMC 511 (1931).


27    46 U.S.C. § 30511; Rule F(1).


28    Van Le v. Five Fathoms, Inc., 792 F. Supp. 372 (D.N.J. 1992).


29    Rodriguez Morira v. Lemay, 659 F.Supp. 89 (S.D.Fla.1987).


30    Complaint of Okeanos Ocean Research Foundation, Inc., 704 F.Supp. 412, 1989 AMC 1677 (S.D.N.Y.1989).

Exceptions to Limitation of Liability


    A shipowner may have validly and timely filed for limitation, may have posted the necessary security, and yet the claimant may still be able to prosecute its claim outside the limitation proceeding, based on certain exceptions.  The first of these exceptions is where the value of the vessel and its freight exceeds that of all claims, that is, the fund is adequate to cover all claims filed against the owner. [FN31]
   The second is the single claimant exception.[FN32] One of the purposes of the concursus is to draw all parties into the same proceeding so that if limitation of liability is allowed, everyone can share proportionately in the limitation fund. However, if there is just one claimant, then there is no reason for this concursus.  In a single claimant case, the district court, upon motion by the claimant, will dissolve the stay against other proceedings, on the condition that the claimant first stipulates to the district court’s exclusive jurisdiction to determine all issues relating to limitation of liability. [FN33]These stipulations must waive any claim of res judicata on the state court judgment as to issues related to limitation, and concede the shipowner’s right to litigate all limitation issues in federal court.[FN34]
    Because a limitation action can also seek exoneration, the question arises as to whether or

not the stipulations must include a waiver of res judicata as to all potential state court judgments, or only those that pertain to limitation of liability (as opposed to exoneration). There is a split among the circuits, and the issue has yet to be resolved by the United States Supreme Court. [FN35]

     The single claimant exception has been expanded to include multiple claimants, so long
as the multiple claimants agree to similar stipulations. [FN36] Those stipulations are generally that the value of the limitation fund is the value of the vessel and its freight, that the state court judgment (or companion federal court judgment if the underlying action proceeds in federal court versus state court) will not be given res judicata effect, and that the district court has exclusive jurisdiction to determine all issues concerning the right of the shipowner to limit liability. Also, in the case of multiple claimants, the claimants must stipulate to the priority of their claims.

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31   Lake Tankers Corp. v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957), rehearing denied 354 U.S. 945, 77 S.Ct. 1421, 1 L.Ed.2d 1543 (1957).

 

32   Lewis v Lewis & Clark Marine Inc., 531 U.S. 438, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001).


33   Ex parte Green, 286 U.S. 437, 52 S.Ct. 602, 76 L.Ed. 1212 (1932); Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931); Gorman v. Cerasia, 2 F.3d 519 (3d Cir. 1993).


34   Complaint of Consolidation Coal Co., 123 F.3d 126, 132 (3d Cir. 1997).

35   The issue is important for the following reason. In Complaint of Consolidation Coal Co., Newman, an injured sailor, entered into stipulations, including that not only limitation issues, but also issues of exoneration, would be subject to the final decision of the federal court. In state court, the jury found in favor of Newman, finding the vessel owner negligent, and the vessel unseaworthy, and awarded Newman $1,327,000. However, Consolidation Coal Co.,
pursuant to the stipulations, took the matter back to the federal limitation action, and received an order granting exoneration. This eradicated the $1.3 million state court jury verdict. On appeal, the Third Circuit stated that because the plaintiff voluntarily included exoneration in the stipulations, it would not reach the issue of whether exoneration was required to be included in the stipulations, and allowed the order of the district court granting exoneration to stand. In dicta, the Third Circuit indicated that it had “serious doubts” that exoneration needed to be
included. Based upon this language, the New Jersey district court has held, in the case of In re Vessel Club Med, 90 F. Supp. 2d 550, 556 (D.N.J. 2000), that only two stipulations are necessary: (1) that the claimant waive any res judicata relevant to the issue of limitation of liability from a state court, and (2) concede the shipowner's right to litigate all limitation issues, (as opposed to exoneration or liability issues), before the federal court.

36 Gorman v. Cerasia, 2 F.3d 519 (3d Cir. 1993).

 

Statute of Limitations


     The statute of limitations for recovery of damages for personal injury or death, or both,
arising out of a maritime tort is three years,[FN37] unlike the New Jersey state statute of two years. Accordingly, if there is a basis of admiralty jurisdiction, even in an action brought in state court, the applicable tort statute of limitations will be the federal statute of three years, not the state statute.[FN38] The doctrine of equitable tolling has application in admiralty.[FN39] Federal maritime, rather than state law, governs whether the limitations period in a maritime tort action has been tolled; the three year federal maritime tort statute is not tolled due to minority.[FN40] There are exceptions to the three year general maritime tort statute of limitations; for example, for claims brought against the United States under the Public Vessels Act [FN41] or the Suits in Admiralty Act, [FN42] the limitations period is two years. For carriage of passengers between US ports or a US port and a foreign port, such as on a cruise ship, the vessel may contractually limit the limitations period to one year. [FN43]
     The practitioner is cautioned to ensure that before relying upon the federal three year
statute for a boating accident, that there is in fact an independent basis of admiralty jurisdiction.
For example, a boating accident that occurred on internal “landlocked” waters of a state, and
thus not on “navigable waters” would not be subject to admiralty jurisdiction, and would be
governed by the state statute, not the three-year federal statute. Also, if the applicable state
statute would otherwise be in excess of the three-year federal statute, the three-year federal
statute applies over the longer state statute. [FN44] This follows the principle of Southern Pacific Co. v. Jensen, [FN45] that the general maritime law governs maritime occurrences and that state law must yield to the required uniformity of the maritime law.

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37  46 U.S.C. § 30106.


38  Butler v. American Trawler Co., 887 F.2d 20, 1993 AMC 2995 (1st Cir.1989).


39  Ferris v. Veco, Inc., 896 F.Supp. 966, 1996 AMC 596 (D.Alaska 1995).

40  Smith v. Brant Beach Yacht Club, Civ. No. 18-1856 (D. N.J., 2018), citing Bourgeois v. Weber Marine LLC, 80 F. Supp. 3d 721, 726 (M.D. La. 2015).


41  46 U.S.C. §§ 31101 et seq.


42  46 U.S.C. §§ 30901 et seq.


43  46 U.S.C. § 30508


44  Butler v. American Trawler Co., Inc., 707 F.Supp. 29, 1989 AMC 2909 (D.Me.1989),aff’d 887 F.2d 20, 1993 AMC 2995 (1st Cir.1989).


45  244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, 1996 AMC 2076 (1917)

Duty of Care

     Whether the jurisdiction is in state court, pursuant to the Savings to Suitors clause, or
federal court in admiralty, or in a limitation proceeding, the applicable duty of care is reasonable care under the circumstances.[FN46] There is no heightened duty of care with regard to the carriage of passengers onboard a vessel, whether the passengers are onboard for purely recreational purposes, such as a fishing trip on a friend’s boat, or for hire, such as on a whale watching vessel. [FN47]
     However, cases can be found which contain language such as: “it was the duty of the
master to protect his passengers from harm with the care, skill and prudence which an
exceedingly competent and cautious man would bring to the task in like circumstances.” [FN48] This certainly appears to require a higher standard of care. This seeming contradiction was concisely explained in the case of Rainey v. Paquet Cruises, Inc: [FN49] "We have stated on a number of occasions that an ocean carrier must exercise a very high degree of care for the safety of its passengers. Respected commentators long have contended, however, that technically the ‘high degree’ instruction is incorrect as a matter of principle. What is required, they say, 'is merely the conduct of the reasonable man of ordinary prudence under the

circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding only an increased amount of care.' In some instances, reasonable care under the circumstances may be a very high degree of care; in other instances, it may be something less.[Citations omitted].

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46  Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Although in admiralty law there exists the concept of unseaworthiness, which is a form of strict liability should the vessel or any of its equipment malfunction, that remedy is only available to seamen. Seaman are persons who work on board a vessel in navigation, whose connection to the vessel is substantial in terms of both its duration and its
nature, and whose work contributes to the vessel’s function. Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S. Ct. 2172, 132 L. Ed. 2d 314,1995 A.M.C. 1840 (1995). Throughout the field of maritime law there are different standards of care and types of damages available for various maritime workers, such as seamen or longshoreman. To avoid confusion, the scope of this article is limited to those persons who are not engaged in any type of maritime employment. 


47  One small exception has been carved out of this rule by case law and by statute, including the Cruise Vessel Security and Safety Act of 2010, 46 U.S.C.A. §§ 3507 to 3508. Some courts have imposed strict liability in cases of sexual assault of a passenger by a crew member, Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 2005 A.M.C. 214 (11th Cir. 2004).


48 Voltmann v. United Fruit Co., 147 F.2d 514 (2d Cir. 1945).

49 709 F.2d 169, 1983 A.M.C. 2100 (2d Cir. 1983).

 

Damages

 

     Persons injured as a result of a boating accident are entitled to make a claim for property
damage, personal injury and/or death against the tortfeasor. Pecuniary damages may be claimed for past and future: (1) pain and suffering, including loss of life’s pleasures; (2) medical and other expenses; and (3) lost wages and earning capacity.[FN50] Non pecuniary damages may be claimed by dependent family members,[FN51] which damages include: loss of support, loss of services, loss of nurture; loss of society, encompassing loss of love, affection, care, attention, companionship, comfort, and protection.[FN52] If a marital relationship is involved, loss of consortium may be claimed, which involves similar interests stemming from the marital
relationship. Loss of consortium or society does not, however, include the survivor's grief, mental anguish, and bereavement. [FN53]
     There were a series of Supreme Court cases that defined damages recoverable in
wrongful death actions in admiralty. Moragne v. States Marine Lines,[FN54] held that wrongful death damages could be recovered in admiralty, Sea-Land Services, Inc. v. Gaudet,[FN55] held that nonpecuniary damages could be recovered in a Moragne wrongful death case. The Supreme Court then decided Miles v. Apex Marine Corp.,[FN56] which held, notwithstanding Moragne and Gaudet, that the mother of a merchant seaman could not recover loss of society in a wrongful death action. That decision was based largely upon the fact that the claim in Miles arose under the Jones Act,[FN57] as opposed to the general maritime law. The Jones Act does not permit nonpecuniary damages.[FN58] Fortunately, for recreational boating accidents, Yamaha Motor Corp. v. Calhoun59 clears up the issue by now allowing the general maritime law to be supplemented by all available state wrongful death remedies. Accordingly, for wrongful death actions that occur within state territorial waters, including on the high seas, but within three nautical miles from shore, the available damages are those allowed under non-conflicting state wrongful death and survivor statutes[FN60] as well as those allowed under the general maritime law.[FN61]
     Cantore v. Blue Lagoon Water Sports, Inc.,[FN62] involved the wrongful death of a jet ski
operator. The court stated that the damages that were available under the general maritime law
included: loss of society, but only if the decedent's parents were financially dependent upon the
decedent; loss of services of the decedent; medical and funeral expenses; and pain and suffering before death.
     While federal remedies may be supplemented by non-conflicting state remedies, where
federal law permits a remedy, a conflicting state law that denies such a remedy will be
disregarded,[FN63] including a state law that imposes a cap on non-economic damages.[FN64]

    Punitive damages are also permitted in admiralty[FN65] for “reckless and willful
misconduct,”[FN66] especially where such damages are permitted by non-conflicting state law. [FN67]

     Damages for emotional distress may also be claimed. Claims for emotional distress
brought on by a direct physical injury are compensable as a matter of course. Claims without
physical injury are more problematic, and are normally not compensable without a showing that the victim was within the “zone of danger” involving an immediate risk of physical harm.[FN68] In addition to being in the zone of danger, some courts require that the plaintiff must have also demonstrated a physical manifestation of the emotional distress.[FN69] Also, the rule was that under general maritime law, the plaintiff could not recover for merely witnessing an accident, no matter how horrific, and notwithstanding a close relationship between the parties.[FN70] However, since the Yamaha Motor Corp. v. Calhoun decision, courts have begun to allow such claims where it would have been permitted under applicable state law.[FN71]  A wrongful death action under the general maritime law can be brought by the personal representative of the decedent;[FN72] the beneficiaries of the action may include the children, [FN73] surviving spouse,[FN74] parents,[FN75] and other dependent relatives.[FN76]

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50   Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 1982 AMC 2447, 2456 (3d Cir.1982), vacated on other grounds, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768, 1983 AMC 1881 (1983), on remand 711 F.2d 570 (3d Cir.1983).


51   Consolidated Coal Co. v. W.W. Patterson Co., 228 F.Supp.2d 764 (N.D.W.Va.2001).
52   American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284, 1980 AMC 618 (1980).

 

53   Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L. Ed. 2d 9, 1973 AMC 2572 (1978)


54   398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339, 1970 AMC 967 (1970).


55   414 U.S. 573, 94 S.Ct. 806, 39 L. Ed. 2d 9, 1973 AMC 2572 (1978).


56   498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275, 1991 AMC 1 (1990).


57   46 U.S.C. §§ 30104 et seq.


58   The text of the Jones Act is actually silent on the issue; for an explanation as to why recovery under the Jones Act is limited to pecuniary damages, see: Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913).


59   Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L.Ed. 2d 578,1996 AMC 305 (1996).

 

60   Id.


61  Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). The most recent statement on the type of damages recoverable for a wrongful death action arising under the general maritime law for a non-seaman, or non-longshoreman, and not otherwise covered by the Death on the High Seas Act, in New Jersey is the case of Morrow v. Marinemax, Inc., 731 F.Supp.2d 390 (D. N.J., 2010). In Morrow, the District Court held that a
husband's claim for the death of his wife could include a claim for loss of services and consortium. The court also noted, in accordance with Yamaha Motor Corp. v. Calhoun, that courts are permitted to expand the damages available under the general maritime law with state damages remedies.


62   799 F.Supp. 1151, 1993 AMC 1053 (S.D.Fla.1992).


63   Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174,1986 AMC 2113 (1986), on remand 800 F.2d 1390, 1987 AMC 299 (5th Cir.1986); Powers v. Bayliner Marine Corp., 855 F. Supp. 199, 195 A.MC. 449 (W.D. Mich. 1994).


64   Price v. Atlantic Ro-Ro Carriers, 45 F. Supp. 3d 494, 2014 A.M.C. 2788, 89 Fed. R. Serv. 3d 1329 (D. Md. 2014).

 

65   Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S. Ct. 2605, 171 L. Ed. 2d 570, 2008 AMC 1521 (2008), and Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 129 S. Ct. 2561,174 L. Ed. 2d 382, 2009 AMC 1521 (2009).


66  In re Marine Sulphur Queen, 460 F.2d 89, 1972 AMC 1122 (2d Cir.1972); Edwards v. Jones, 1999 A.M.C. 1078, 1999 WL 641776 (D. Md. 1999).


67  Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578, 1996 AMC 305 (1996). On remand, based upon choice of law principles, punitive damages were denied as such damages were not available under Puerto Rican law. 216 F.3d 338, 2000 AMC 1865 (3d Cir. 2000).


68   Norfolk and Western R. Co. v. Ayers, 538 U.S. 135 (2003).


69   Williams v. Carnival Cruise Lines, 907 F.Supp. 403, 1996 AMC 729 (S.D.Fla.1995).


70   Gandhi v. Carnival Corp., 2014 WL 1028940 (S.D. Fla. 2014). See also: Gaston v. Flowers Transp., 675 F. Supp. 1036, 1988 AMC 1070 (E.D. La. 1987), aff'd, 866 F.2d 816, 1989 AMC 1761 (5th Cir. 1989), where the court disallowed a claim for purely emotional distress when a man attempted to save his brother from being crushed between two vessels. The court held that the plaintiff’s emotional injuries were not as a result of fear for his own safety, but rather from the horror of seeing his brother crushed to death.

71   Pucci v. Carnival Corporation, 160 F. Supp. 3d 1329, 2016 A.M.C. 845 (S.D. Fla. 2016).


72   Tidewater Marine Towing, Inc. v. Dow Chemical Co., 689 F.2d 1251 (5th Cir.1982).


73   Including illegitimate children who may also be beneficiaries. In re Industrial Transp. Corp., 344 F.Supp. 1311, 1972 AMC 2380 (E.D.N.Y.1972).


74   Whether a common law spouse can assert a cause of action for wrongful death is a question decided by the application of state law. See Tidewater Marine Towing, Inc. v. Curran-Houston, Inc., 785 F.2d 1317, 1986 AMC 1959 (5th Cir.1986).


75   Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084, 1994 AMC 13 (2d Cir.1993).


76   Smith v. Allstate Yacht Rentals, Ltd., 293 A.2d 805 (Del.Super.1972).

The Death on the High Seas Act


     In wrongful death actions, where the accident occurs more than one marine league (three
nautical miles)[FN77] offshore, and results in the death of the victim, the results are dramatically different. In such cases, the damages available are only those allowed under the Death on the High Seas Act (DOHSA),[FN78] notwithstanding any other principal of admiralty law; the damages may not be supplemented by state law remedies. Damages under DOHSA, with the limited exception of wrongful deaths that occur when a commercial aircraft crashes on navigable waters,[FN79] are limited to pecuniary damages.[FN80] Pecuniary losses may include, loss of support; loss of the services of the deceased; loss of nurture, guidance, care, and instruction; loss of inheritance; and funeral expenses paid by the dependents. As grief, bereavement, and mental anguish of the dependents are not “pecunairy damages,” they are not compensable, nor are claims for loss of society and consortium recoverable in a DOHSA action.[FN81] Punitive damages are not recoverable.[FN82] Finally, although survival actions are permitted under the general maritime law, where DOHSA is applicable, such causes of action are expressly disallowed,[FN83]even those normally allowed under state law.[FN84] The proper party to bring suit is the “personal representative of the decedent,” which is defined to include the spouse, the administrator, or the executor of the estate. The beneficiaries of the action are the decedent's wife, husband, parent, child, or dependent relative.[FN85] Each is entitled to recover in proportion to the loss found to have been suffered by each individual member of the classes of beneficiaries. As with any admiralty tort action, the amount of the damages assessed may be reduced by the application of principles of pure comparative fault.[FN86]

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77   A nautical mile is 1.1508 miles; it corresponds to one minute of latitude.


78   46 U.S.C. § 30301, DOHSA is the exclusive remedy when death occurs on the high seas) Ford v. Wooten, 681 F. 2d 712 (11th Cir. 1982).

79   46 U.S.C. § 30307(b).


80   46 U.S.C. § 30303.


81   Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581, 1978 AMC 1059 (1978), on remand 578 F.2d 565 (5th Cir.1978).


82   Id.


83  Dooley v. Korean Air Lines Co., 524 U.S. 116, 118 S.Ct. 1890, 141 L.Ed.2d 102, 1998 AMC 1940 (1998).


84  Jacobs v. Northern King Shipping Co., 180 F.3d 713, 1999 AMC 2341 (5th Cir.1999).


85   46 U.S.C. § 30302.

 

86   46 U.S.C. § 30304. See also the case of: U.S. v. Reliable Transfer Co., Inc., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251, 1975 A.M.C. 541 (1975).

Suits Against the United States


     If the boating accident is a result of the negligence of a vessel owned or operated by the
United States of America, even a warship of the United States, the United States has statutorily
permitted causes of action. However, any such suit must be brought either under the Suits in
Admiralty Act (SAA), [FN87] or the Public Vessels Act (PVA),[FN88] as applicable. The Suits in Admiralty Act (SAA) provides as follows: "In a case in which, if a vessel were privately owned or operated, or if cargo were privately owned or possessed, or if a private person or property were involved, a civil action in admiralty could be maintained, a civil action in admiralty in personam may be brought against the United States ….[FN89] The statute of limitations for any such suit is two years,[FN90] which applies over the more general three year maritime tort statute of limitations.[FN91] Notwithstanding the provisions of the Savings to Suitors clause, the cause of action must be brought in federal district court.[FN92]

     The Public Vessels Act arose out of an original exception to the Suits in Admiralty Act

which originally barred claims against warships of the United States. The PVA also contains a two-year statute of limitations and gives exclusive jurisdiction to the federal district courts.
Under both the SAA and the PVA, the United States is liable for negligent conduct to the same extent as a private defendant. The primary difference between actions involving the SAA or the PVA and any other maritime casualty involves the discretionary function doctrine.[FN93] For example, there is potentially no liability where the United States chooses not to mark or remove
a wreck, carry out a safety inspection, or maintain a navigational aid.[FN94] A defense based on the discretionary function doctrine requires a finding that the matter involved an element of
judgment or choice, and that the decision was grounded in social, economic, or political public
policy.[FN95] Where the government does choose to take action, it must act reasonably with respect to any such action, and can be held liable for its negligence.[FN 96]

_____________________________

 

87   46 U.S.C. §§ 30901 et seq.; 46 U.S.C.A. App. §§ 741 et seq;


88   46 U.S.C. § 31101; 46 U.S.C.A. App. §§ 781 et seq.


89   46 U.S.C. § 30903.


90   46 U.S.C. § 30905.


91   46 U.S.C. § 30106.


92   46 U.S.C. § 30906.

93   McMellon v. U.S., 387 F. 3d 329, 2003 AMC 2113 (4th Cir. 2003).


94   Cranford v. U.S., 466 F. 3d 955, 2006 AMC 2537 (5th Cir. 2006).


95   U.S. v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991).


96   Patentas v. United States, 687 F.2d 707, 1987 AMC 1076, (3d Cir.1982).

Attorneys fees


     Absent a statute or contractual right, there is no legal right to recover attorney’s fees in
any personal injury case, and each party must bear its own costs. [FN97] State law fee shifting statutes Will not be given effect in admiralty.[FN98]

_____________________________

97   Golden Pisces, Inc. v. Fred Wahl Construction, Inc., 495 F.3d 1078 (9th Cir. 2007).


98   Cianbro Corp. v. George H. Dean, Inc., 733 F. Supp. 2d 191 (D. Me. 2010).

Presumptions and Burden Shifting in Admiralty


     The Rule of the Oregon[FN99] gives rise to a presumption of fault similar to the common law doctrine of res ipsa loquitor for allision cases, i.e., where a vessel under power strikes a stationary object such as a bridge or pier,[FN100] or a collision case where a vessel strikes a vessel at anchor.[FN101] It creates a rebuttable presumption of negligence on the part of a party who is in exclusive control of the instrumentality causing the harm, where ordinarily such harm does not occur in the absence of negligence.[FN102] The Louisiana Rule[FN103] provides a similar presumption when a drifting vessel strikes a structure or a vessel at anchor.

     In the prosecution of any boating accident for a collision, a violation of the rules of
navigation, or of a safety regulation, can give rise to the powerful tools of negligence per se or
the Rule of the Pennsylvania.[FN104] Although they are often spoken of together, the first is a rule of negligence, while the latter is a rule of causation.
     The violation of a statute which is intended to protect the class of persons to which a
plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence per se, which is defined as negligence in itself, as opposed to mere evidence of negligence.[FN105] This includes the violation of Coast Guard regulations.[FN106]
     In The Pennsylvania,[FN107] the Supreme Court set down the rule that, in a collision action, if
it can be established that a vessel was in violation of a safety statute intended to prevent
collisions, the burden shifts to the offending vessel to show “not only that her fault might not
have been one of the causes, or that it probably was not, but that it could not have been” the
cause of the collision. The Rule of the Pennsylvania is not a rule of liability, but rather a rule that
shifts the burden of proof as to causation.[FN108] Courts have resisted using the Pennsylvania rule to prove negligence per se.[FN109] The Pennsylvania rule has been expanded to include stationary structures in addition to vessels.[FN110] It has also been subject to recent expansion beyond collision cases and the navigational rules; although the Pennsylvania rule originally applied only to collisions between ships, it has been reformulated to apply to any statutory violator who is a party to a maritime accident.[FN111]

_____________________________

99   158 U.S. 186, 15 S. Ct. 804, 39 L. Ed. 943, 2008 A.M.C. 1425 (1895).


100   Complaint of Nautilus Motor Tanker Co., Ltd., 85 F.3d 105 (3d Cir. 1996), (a moving vessel and her owner are subject to a presumption of negligence when the vessel strikes a well-charted, stationary object or obstruction).


101   Self Towing, Inc. v. Brown Marine Services, Inc., 837 F.2d 1501 (11th Cir.1988).


102   In re Mid-South Towing Co., 418 F.3d 526 (5th Cir., 2005).


103   The Louisiana, 70 U.S. (3 Wall.) 164, 18 L.Ed. 85 (1866).


104   86 U.S. 125, 22 L.Ed. 148 (1874)

 

105   Marshall v. Isthmian Lines, Inc., 334 F.2d 131, 1964 A.M.C. 1686 (5th Cir. 1964).

106   Davis v. Odeco, Inc., 18 F.3d 1237, 1995 A.M.C. 608, 40 Fed. R. Evid. Serv. 821 (5th Cir. 1994).


107   86 U.S. 125, 22 L.Ed. 148 (1874).


108   Green v. Crow, 243 F.2d 401 (5th Cir.1957).


109   McCoy v. Foss Maritime Co., 442 F. Supp. 1103 (W.D. Wash. 2006); Willis v. Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004); Florida Marine Transporters v. Sanford, 255 Fed. Appx. 885 (5th Cir. 2007); Poulis-Minott v. Smith, 388 F.3d 354 (1st Cir. 2004).


110   People v. The Italian Motorship Ilice, 534 F.2d 836 (9th Cir.1976) (applying rule to a vessel/bridge allision).


111   Complaint of Nautilus Motor Tanker Co., Ltd., 85 F.3d 105 (3d Cir.1996).

 

The Rules of the Road: The COLREGS and The Inland Rules


     The most important rules and regulations relevant to the analysis of a boating collision
are the rules concerning vessel navigation, commonly known as the Rules of the Road.[FN112] As a violation of any of these rules prior to a collision triggers the extraordinary rule of the
Pennsylvania, the importance of reference to these rules cannot be overstated.[FN113]
     Generally, for accidents that occur on the high seas, the COLREGS apply. Although most
nations use the COLREGS as the rules for navigation not only on the high seas, but also on their
inland waters, the United States has chosen to adopt its own internal set of navigational rules,
i.e., the Inland Rules. Generally, the Inland Rules are applicable on any navigable internal
waters of the United States, such as on bays, lakes and rivers, while the COLREGS apply from
the coastline seaward.[FN114] However, even though they are separate sets of rules, due to the need for a uniform set of navigational rules, the differences between the Inland Rules and COLREGS are in many respects minimal.[FN115]

     Rule 3 states that the navigational rules apply to vessels. What constitutes a vessel is
given a very broad definition.[FN116] The rules apply to large vessels, small pleasure craft, in fact “every description of water craft,” military vessels and even to seaplanes on the water. Rule 3 not only defines what constitutes a vessel, but also defines different types of vessels, such as:
power driven vessel; sailing vessel; when a vessel is underway; engaged in fishing; a seaplane;
when a vessel is not under command; or when a vessel is restricted in her ability to maneuver. It also defines other important terms such as what constitutes restricted visibility, and even how to measure the length and breadth of a vessel. These are all important definitions as they impact the relative duties of each vessel with respect to similar or dissimilar vessels and under specific circumstances as outlined throughout the rules.
     Rule 2 establishes the interactions of the rules. It states that nothing in the rules will
exonerate any vessel from the consequences of any neglect to comply with the rules or of the
neglect of any precaution which may be required by the “ordinary practice of seamen,” or by the
special circumstances of the case. Rule 2 also allows departure from the rules for special
circumstances, where departure from the rules is necessary to avoid immediate danger.
Accordingly, Rule 2 does not allow a vessel to hide behind the rules as an excuse for causing a
collision, and where compliance with the rules would result in a collision, departure from the
rules is required.
     For example, Rule 16 refers to the “give way” vessel, and Rule 17 refers to the “stand

on” vessel. Under a previous iteration of the rules, the vessels were referred to as the
“privileged” vessel, versus the “burdened” vessel. The terms were modified to make it clear that
each vessel, in the event of a risk of collision, has its relative burden. Generally, the “give way”
vessel has the burden of moving out of the way[FN117] of the “stand on” vessel, while the “stand on”
vessel has the burden of maintaining present course and speed.[FN118] However, in the event of a risk of collision, Rule 17 states: “[w]hen, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.” This is an example of how, what otherwise would have, under previous definitions, been considered the “privileged” vessel, becomes “burdened.”
     There are various rules that define what rules apply under certain conditions, such as all
conditions of visibility,[FN119] restricted visibility,[FN120] whether vessels are in sight of one another,[FN121] and weather conditions.[FN122]
     Rule 5 is a very important rule, and concerns the duty to maintain a “proper lookout.” The rule is identical whether under the COLREGS or under the Inland Rules. It states that “every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full

appraisal of the situation and of the risk of collision.” The absence of a proper lookout is one of
the most common causes or contributing causes of a vessel collision. It is important to note that
lookout includes not only sight but also hearing, as proper navigation often requires using a
sound emitting device to signal your intentions.[FN123] What this rule does not define is how precisely to maintain a lookout. Rather, the rule instructs the vessel that the lookout should be “proper” and “appropriate,” depending upon prevailing circumstances and conditions. Accordingly, reference to Rule 2, and the ordinary practice of seamen is relevant. 

     Finally, the phrase “full appraisal of the situation and of the risk of collision” highlights that the purpose of the rule is to avoid a collision, and that what constitutes an appropriate lookout is dependent upon the full appraisal of the situation. That means that what may be an appropriate lookout in one circumstance, is insufficient in another and that something more may be required.
     Rule 6 concerns safe speed. Again, this rule is identical whether under the Inland Rules
or the COLREGS. "Every vessel shall at all times proceed at a safe speed so that she can take
proper and effective action to avoid collision and be stopped within a distance appropriate to the
prevailing circumstances and conditions. Rule 6 then lists appropriate factors to be taken into
account when determining what constitutes a safe speed. Factors that are to be taken into account by all vessels include the state of visibility, traffic density, the maneuvering characteristics of the vessel, including the vessel's draft, meaning how much water needs to be underneath the vessel to prevent her from running aground, the sea state, including wind, current and proximity of navigational hazards, and if at night, the presence of background light (background light at night can impede visibility and therefore require a slower speed). There are also additional factors for vessels that are equipped with radar.

     Unlike on our roads and highways, there is no specific speed limit on the water.[FN124]
However, there are areas, such as no wake zones, where the vessel’s speed must be reduced so as not to cause a wake that will damage adjacent vessels or property. What the rule envisions is a reasonable rate to avoid a collision.
     Rule 7 concerns risk of collision, and again the COLREGS are identical to the Inland
Rules. "Every vessel shall use all available means appropriate to the prevailing circumstances
and conditions to determine if risk of collision exists. If there is any doubt, such risk shall be
deemed to exist." The goal is to avoid a collision. In doing so, the vessel should use all
appropriate means under the given circumstances. When in doubt, the vessel is required to
assume that the risk of a collision exists and to take appropriate precautions. Under Rule 7,
vessels are required to make proper use of any operational radar equipment. The rule further
states that assumptions shall not be made based on “scanty information,” especially scanty radar information.
     Rule 8 concerns actions to avoid a collision. Again, COLREGS and the Inland Rules are
identical. They require that any action taken to avoid collision shall be positive, made in ample
time and with due regard to the observance of good seamanship. Alterations of course and/or
speed to avoid collision shall be large enough to be readily apparent to another vessel; a

succession of small alterations of course and/or speed should be avoided. If necessary to avoid
collision or allow more time to assess the situation, a vessel shall slacken her speed or “take all
way off” by stopping or reversing her means of propulsion.
     Rule 9 is the narrow channel rule. What constitutes a narrow channel is not defined.
Generally, the narrow channel rule arises when a vessel is of sufficient size that it cannot leave
the channel without running aground. In such a case, other vessels are required to stay out of its way so that the larger vessel may, of necessity, stay in the narrow channel. The rule requires
that vessels keep as near the outer limit of the channel on her starboard (right) side as is safe and practicable, and that a vessel of less than 20 meters in length, or a sailing vessel, shall not
impede the passage of a vessel which can safely navigate only within a narrow channel. Also, no vessel shall cross a narrow channel if such crossing impedes the passage of a vessel that can safely navigate only within the narrow channel. Finally, vessels are generally to avoid, based on the particular circumstances, from anchoring in a narrow channel.
     Rule 10 concerns traffic separation schemes for exceptionally busy or hazardous
waterways. In the vicinity of New Jersey, there is a traffic separation scheme for the New York
Harbor, an area near the mouth of the Hudson River. Evaluation of boating accidents that occur
in that area should include an analysis of the relevant traffic separation scheme.
     Rule 13 concerns overtaking and requires that any vessel overtaking any other vessel
shall keep out of the way of the vessel being overtaken. For purposes of this rule, a vessel is
overtaking another vessel when coming up upon her from a direction more than "22.5 degrees
abaft of her beam," i.e., 22.5 degrees toward the rear of the vessel, as measured from a
perpendicular line from the center or widest part of the ship. Vessels that encounter another

vessel less than 22.5 degrees abaft of her beam are not overtaking, but rather are in a crossing
situation, which is governed by Rule 15. At night, considering the required location of
navigational lights, normally only the white stern (back) light of a recreational vessel would be
visible to the overtaking vessel, as opposed to the starboard (right) green light or the port (left)
red light.[FN125] Once a vessel finds itself in an overtaking situation, it continues to remain the
overtaking vessel, subject to this rule, even after it proceeds forward to a point less than 22.5°
abaft her beam until the passing vessel is “finally past and clear.”
     Rule 14 governs head-on situations between power vessels. It requires that, unless
otherwise agreed between the two vessels, when two power driven vessels are meeting head on, each shall alter her course to starboard (right) so that each shall pass the other on the port (left) side of the other.
     Rules 15, 16 and 17 govern crossing situations between power vessels. Rule 15 requires
that when there is a risk of a collision, the vessel which has the other on her own starboard side
shall keep out of the way and shall, if the circumstances admit, avoid crossing ahead of the other vessel. When a crossing situation exists, pursuant to Rule 16, the give way vessel shall modify its course to pass astern (to the rear of) the stand on vessel; pursuant to Rule 17, the stand on vessel shall maintain course and speed. The give way vessel is required to take early and substantial action to keep well clear.[FN126]

     Rule 18 governs responsibility between various types of vessels and establishes a
hierarchy of privilege. Generally, vessels of a class that are more maneuverable are normally
required to keep out of the way of vessels thought to be less maneuverable. For example, a
power driven vessel shall keep out of the way of a vessel not under command, restricted in her
ability to maneuver, engaged in fishing or a sailing vessel. A sailing vessel shall keep out of the
way of a vessel not under command, a vessel restricted in her ability to maneuver, and a vessel
engaged in fishing. A vessel engaged in fishing shall keep out of the way of a vessel not under
command, and a vessel restricted in her ability to maneuver. The most privileged classes of
vessels are vessels not under command and vessels restricted in their ability to maneuver. Should two such vessels encounter each other, both are required to take action to avoid collision. Seaplanes are required to keep well clear of all vessels.
     Rule 19 concerns conduct of vessels in restricted visibility (generally on open water,
where visibility is less than 5 miles) and requires vessels not in sight of one another to proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A
power driven vessel shall have her engines ready for immediate maneuver. Where risk of
collision exists, every vessel which hears in front of her the fog signal of another vessel, or
which cannot avoid a close-quarters situation with another vessel forward of her beam, shall
reduce her speed to the minimum at which she can be kept on her course. She shall if necessary take all her way off (stop forward progress) and in any event navigate with extreme caution until danger of collision is over. Note, with this rule, a change in course is not the required action, but rather slowing to the lowest speed at which a vessel can continue to control its direction,[FN127] or stopping is required.
     Rule 20 concerns lights and shapes that are to be used as navigational aids in all weather
conditions. It requires that from sunset to sunrise, and in periods of restricted visibility, only the
required lights shall be shown and no other lights shall be exhibited, except those that cannot be mistaken for navigational lights or otherwise interfere with the keeping of a proper lookout. The rules regarding shapes are to be complied with by day. Rule 20 refers to Annex 1 of the rules which concerns appropriate navigational lights and shapes.
     Rule 21 defines lights. The most common are the sidelights which is a green light on the
starboard side and a red light on the port side. A masthead light is a white light in the center of
the vessel that points forward and is normally the highest navigational light on the vessel. The
stern light is a white light placed at the back of a vessel.
     Rule 22 concerns the visibility of the lights. The larger the vessel the greater the distance
the lights must be visible.
     Rule 23 concerns lighting requirements for power driven vessels underway
     Rule 24 concerns lights on towing and pushing vessels.
     Rule 25 concerns lights for sailing vessels underway and vessels being propelled by oars.
     Rule 26 concerns navigation lights for fishing vessels
     Rule 27 concerns navigational lights for vessels not under command or restricted in their ability to maneuver.

     Rule 28 concerns navigational lighting requirements for vessels constrained by their
draft, i.e., how much water is required to be underneath of the vessel to put keep her afloat and
prevent her from running aground. Rule 28 exists only in the COLREGS and has no equivalent
inland counterpart.
     Rule 29 concerns navigational lights for pilot vessels, i.e, a vessel whose specific purpose
is to ferry marine pilots from harbors to ships that need piloting and vice versa.
     Rule 30 concerns navigational lights for anchored vessels and vessels aground.
     Rule 31 concerns navigational lights for seaplanes
     Rule 32 concerns navigational sound emitting devices, such as whistles and required
sound blasts. A short blast means a sound of one second duration and a prolonged blast means a sound from 4 to 6 seconds in duration.
      Rule 33 concerns equipment for navigational sounds and requires vessels 12 meters or
more in length to have a whistle and a bell; vessels of 100 meters or more in length shall
additionally have a gong or similar sound emitting device. A vessel less than 12 meters in length is not obliged to carry the specified sound signaling devices, but is required to have some other means of making “an efficient sound signal.”
     Rule 34 concerns maneuvering and warning sound signals. While most of the COLREGS and the Inland Rules are either identical or substantially similar, Rule 34 differs substantially between the COLREGS and the Inland Rules. The essential difference between the two sets of rules concerns the intention behind the sound. Under the COLREGS, a sound signals what the vessel is actually doing. Under the Inland Rules, a sound signals the proposed intent of a vessel.

     Under the COLREGS, one short blast means “I am altering my course to starboard,” two
short blasts means “I am altering my course to port” and 3 short blasts mean I am operating
astern propulsion, i.e., operating my engines in reverse, regardless of whether the vessel is
actually going backwards. The sound signals may be supplemented by corresponding light
signals. The light used for this signal will be in all around white light. While under the
COLREGS the sound signals must be made, the light signals are optional. The rule also
discusses passing in a narrow channel, and other situations. In a narrow channel only, where
there is insufficient room for a vessel to pass unless the overtaken vessel maneuvers to allow the overtaking vessel to pass, overtaking vessels and vessels being overtaken, must communicate their intentions via whistles. Under the COLREGS, an overtaking vessel shall signal her intention with two prolonged blasts followed by one short blast, which means I intend to overtake you on your starboard side. Two prolonged blasts followed by 2 short blasts means I
intend to overtake you on your port side. The vessel about to be overtaken shall indicate her
agreement with one prolonged, one short one prolonged and one short whistle blast, in that order.  If, as a result of this series of communications there is disagreement or doubt, either vessel should signal 5 or more short blasts, which is referred to as “the danger signal.”
     Under Rule 34 of the Inland Rules, when two power driven vessels are in sight of one
another and meeting or crossing at a distance within 1/2 a mile of each other, one short blast
means “I intend to leave you on my port side,” two short blasts mean “I intend to leave you on
my starboard side” and 3 short blasts mean I am operating astern propulsion. Upon hearing the
signals, the other vessel shall, if in agreement, sound the same whistle signal and take the steps necessary to effect a safe passing. If the vessel doubts the safety of the proposed maneuver, she shall sound the five short and rapid blasts of the danger signal. Each vessel is then to take appropriate precautionary action until a safe passing agreement is made. Accordingly, under the Inland Rules, a discussion between vessels is required, where agreement must be reached before the maneuver can begin. Rule 34 excuses whistle signals when agreement between vessels has been reached on channel 13 over the radiotelephone. The phrase "I intend to leave you on my [port or starboard] side," means that the other vessel will be on the specified side of your vessel at the point that the tracks of the two vessels intersect. Again, as with the COLREGS, the Inland Rules allow for the sound signals to be supplemented by light signals.
     Both the Inland Rules and the COLREGS call for a blind bend signal. If there is a bend in
the waterway, and it cannot be ascertained if there is an approaching vessel, the vessel
approaching the bend should give one prolonged blast. The answering signal by a vessel
approaching from the other direction is likewise one prolonged blast.
     Under the Inland Rules, when a power driven vessel is leaving a dock or birth, she shall
give one prolonged blast.
     Rule 35 concerns navigational sounds to be made in restricted visibility. The signals are
to be given whether by day or night. When a power driven vessel is making way in restricted
visibility, it is required to sound one prolonged blast every 2 minutes. A power driven vessel
that is not making headway shall sound at intervals of not more than 2 minutes two prolonged
blasts in succession with an interval of about 2 seconds between each prolonged blast. For
vessels at anchor, not under command, restricted in her ability to maneuver, at anchor, sailing, or engaged in fishing or towing, she shall instead make 3 blasts in succession, one prolonged,
followed by 2 short, at intervals of not more than 2 minutes. Where a vessel or vessels is/are being towed, the last vessel of the tow, if manned, shall at intervals of not more than 2 minutes sound four blasts in succession, one prolonged, followed by 3 short blasts. Unmanned towed vessels are not required to give the signals. Vessels at anchor, shall at intervals of not more than one minute, ring the bell rapidly for about 5 seconds. Where the vessel is 100 meters or more in length, the bell shall be sounded in the front of the vessel, and immediately after the ringing of the bell the gong shall be sounded rapidly for about 5 seconds in the back of the vessel. A vessel at anchor may in addition sound 3 blasts in succession, one short, one prolonged and one short blast. Vessels aground shall give the bell signal and if required the gong signal, and, in addition give 3 separate and distinct strokes on the bell immediately before and after the rapid ringing of the bell. In restricted visibility, pilot vessels are to signal four short blasts. Vessels of less than 12 meters in length are not obliged to give any of the above-mentioned signals, but if she does not, shall make some other efficient sound signal at intervals of not more than 2 minutes. Vessels of less than 20 meters in length, or a barge, canal boats, scow, or other nondescript craft, shall not be required to sound signals when anchored in a designated special anchorage, listed at 33 CFR part 110.
     Rule 36 governs signals to attract attention. If necessary to attract the attention of another vessel, any vessel may make any light or sound signals so long as the signals cannot be mistaken for any signal authorized elsewhere in the rules.
     Rule 37 governs distress signals. The signals are governed in Annex IV to the rules. The
use or exhibition of any of the authorized signals except for the purpose of indicating distress
and need of assistance and the use of other signals which may be confused with any of the above signals is prohibited.

     Rule 38 allows for certain exemptions to the rules depending upon various circumstances
such as the age of the vessel, the length of the vessel, the waters on which the vessel operates.
Because the rules are specifically designed to prevent collisions between vessels, and
because each vessel has an obligation to avoid a collision, it is uncommon to find a case where
two vessels collide where there is not some degree of fault on the part of each vessel. For
example, in Rule 15, crossing situation, the stand on vessel has the right, and in fact the
obligation, to continue at its present course and speed. However, once it becomes apparent that
the give way vessel is not giving way, then the stand on vessel is required to no longer stand on,
but in fact to take action to avoid collision. Accordingly, even the stand on vessel, who had an
obligation to stand on, is can be partly responsible for the collision for failure to give way in
response to the giveaway’s vessel failure to give way. The courts of the admiralty address the
respective fault of each vessel in a collision based upon the rule of pure comparative negligence
set forth in the case of Reliable Transfer.[FN128]

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112   These rules are set forth in two sets. The first set is international, adopted by treaty, The International Regulations for Preventing Collisions at Sea, 28 U.S.T. 3459, T.I.A.S. No. 8587, 1050 U.N.T.S. 16., commonly known as the COLREGS. The COLREGS are set out in 33 U.S.C. §§ 1601 to 1608. The second set of navigational rules are the Uniform Inland Navigational Rules, which generally govern inland navigation, and are appropriately referred to
as the Inland Rules. In 2010, the Statutory Inland Navigation Rules were repealed and the Rules were promulgated as Part 83 of Title 33, Code of Federal Regulations. See also 33 C.F.R. Parts 84 to 90.


113  The following summary of both the Inland Rules and the COLREGS is intended to be an overview only. Due to the complexity and comprehensiveness of the rules, the rules themselves must always be consulted.


114   For a detailed explanation of the line of demarcation, meaning where the Inland Rules apply versus the COLREGS, see 33 C.F.R. part 80.


115   Due to the similarity between the COLREGS and the Inland Rules, unless otherwise specified, a citation to a navigational rule herein refers to both the rule under the COLREGS as well as under the Inland Rules.


116   Rule 3.

117   Rule 16


118   Rule 17


119   Rule 4, making Rules 5 through 10 applicable in any conditions of visibility.


120   Rule 19


121   Rule 11, making Rules 12 through 18 applicable to vessels in sight of one another.


122   Rule 20, making the rules under Part C, Rules 21 through 31 applicable to lights and shapes applicable in all weathers.

 

123   Rules 32 through 37.

124 NJSA 12:7-45 concerns the safe speed of power vessels, but provides no specific speed limit, stating that the speed shall be regulated so as to avoid danger or injury to other vessels or marine structures, by either the vessel itself or by its wake.

125   Rule 21 governs the colors of these lights and their placement on the vessel. Additional lighting requirements for these and other navigational lights, including their visibility and placement, including lighting configuration for particular types of vessels (including seaplanes) and under varying circumstances, such as underway, at anchor, in distress, etc., and exemptions granted, are contained in Rules 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 34, 36, 37,
38 and the Annexes to the Rules.

126   An easy way for the novice mariner to remember this rule is that the vessel that can see the red (port) navigational light of the other vessel has the stoplight and the vessel that can see the green (starboard) navigational light of the other vessel can proceed.

127   This is commonly referred to as “steerageway.”

128    U.S. v. Reliable Transfer Co., Inc., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251, 1975 A.M.C. 541 (1975)

New Jersey State Safe Boating Laws


     In addition to these federal statutes and regulations, New Jersey has its own various
statutes that concern the safe operation of a vessel.
     NJSA 12:7-45 concerns the safe speed of power vessels, and states that the speed shall be
regulated so as to avoid danger or injury to other vessels or marine structures, by either the
vessel itself or by its wake.
     NJSA 12:7-46 concerns the operation of a vessel while under the influence. The statute in large respect is similar to the statute for operation of a motor vehicle while under the influence on the highways.
     NJSA 12:7-47. Concerns reckless operation of a vessel, and prohibits persons from
operating their vessel in disregard of the rights and safety of others, or in a manner which
unnecessarily interferes with the free and proper use of any waters or unnecessarily creates a risk of damage or injury to any other craft.
     NJSA 12:7-76 concerns careless operation of a vessel and prohibits anyone from
operating a vessel without due caution and circumspection in a manner that endangers, or is
likely to endanger person or property. Careless operation is defined to include, but is not limited
to, the loading of a vessel beyond the maximum capacity stated by the United States Coast Guard or the capacity label of the manufacturer of fixed of the vessel.
     NJSA 12:7B-1 requires every rowboat, canoe, sailboat or craft propelled by hand or foot
operating on any freshwater lake lying wholly within the State having a total area of not less than 3 ½ square miles to carry, from sunset to sunrise, display lights which shall include a bright white light in the back of the vessel, a green light on the right, starboard side of the vessel and a red light on the left, port side of the vessel.
     N.J.S.A. 12:7 – 34.46 requires the operator of any vessel involved in an accident to
render aid to all persons affected by the accident, to give his name, address and identifying
information to any person injured or to the owner of any property damaged in the accident, and if the accident involves death, disappearance of any person, injury to any person, or causes
property damage as defined in 33 C.F.R. s.173.55 to report the accident to the New Jersey State
police. If the accident results in death or disappearance of a person, it shall reported by the quickest means possible, and for any other accident it shall be reported within 10 days. However, it states that the report of any such boating accident shall not be referred to in any way during any judicial proceeding nor shall it be subject to subpoena nor admissible as evidence in any proceeding.
     These statutes are used in municipal court and prosecuted as would be a traffic ticket for
operating a motor vehicle on the highways. None of these aforementioned statutes have been
cited as having any relevance with regard to a finding of civil liability for a boating accident. By
way of comparison, a plea of guilty, or a finding of guilt for careless operation of a motor vehicle
in municipal court, can be used in a related superior court personal injury case to conclude that
the vehicle was operated negligently.[FN129] However, there likewise has been no finding that a
successful prosecution in Municipal Court would not be relevant to a finding of liability in a
related civil case. Considering that negligence per se is applicable in admiralty, there is no
reason to assume that these laws could not have at least some use in that regard.

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129   “A violation of the careless driving statute was not merely evidence of negligence; it was negligence.” Eaton v. Eaton, 543 A.2d 485, 226 N.J.Super. 62 (N.J. Super. App. Div.,1988).

 

Conclusion


  The successful prosecution of a boating accident case requires an understanding of the
intricacies and interrelationship of the various substantive laws of admiralty, as well as the rules of procedure to be used in admiralty cases, even if the case is brought in state court. When a case is subject to the rules of admiralty law, even something normally as straight forward as the applicable statute of limitations, and whether it is tolled, can be problematic and have potentially devastating consequences to the case. Further, such seemingly arbitrary differences as to whether the accident occurs within or without a marine league from shore, can dramatically change the complexion of the case and damages recoverable. Finally, although the navigational rules appear confusing and, at sometimes onerous, an understanding of, and proper use of these invaluable tools can give the party who understands them and their application a critical advantage.